Care procurement 2025: healthcare providers, exercise your rights in time!

All healthcare insurers had to publish their 2025 procurement policy under the Healthcare Insurance Act by 1 April 2024 at the latest. That publication is the starting signal for healthcare procurement and takes place while the healthcare landscape is under increasing pressure. Staff shortages and an ageing population are taking a heavy toll on access to care. Will the Comprehensive Care Agreement (Integraal Zorgakkoord or IZA) provide a solution? Whatever the case may be, obtaining a sound contract with the healthcare insurers is more important than ever, also in light of the cost increases facing healthcare providers. Both healthcare providers and healthcare insurers have rights and obligations during the healthcare procurement process. Among other things, health insurers are bound by:

• the statutory duty of care;
• the contractual and precontractual principles of good faith;
• the Sound Insurance Practice Code of Conduct;
• provisions of the IZA;
• the NZa Regulations on Transparency of the Healthcare Procurement Process under the Healthcare Insurance Act (the Healthcare Procurement Regulations);
• the NZa Regulations on the Provision of Information by Healthcare Insurers (the Regulations on the Provision of Information); and
• case law, such as that on the charging of realistic rates and the granting of the Government Contribution to Labour Cost Development (Overheidsbijdrage in de arbeidskostenontwikkeling or OVA) under the IZA.

Experience has shown that it is important for healthcare providers to make effective use of these provisions. This blog explains in 11 steps how you can exercise your rights in 2025 healthcare contracting to arrive at a sound 2025 contract with the healthcare insurer(s) – because well begun is half done.

1. Check the healthcare insurer’s 2025 procurement policy under the Healthcare Insurance Act immediately after 1 April 2024

• Under the Healthcare Procurement Regulations, the healthcare insurer’s procurement policy must have been published by 1 April 2024 (see also this blog). The procurement policy is usually presented in outline, but must in any event meet the requirements listed in Article 4 of the Healthcare Procurement Regulations.
• Healthcare insurers’ obligations include the following:
  • make it clear to healthcare providers beforehand which contract variant will be offered;
  • state in the procurement policy how additional contracting wil be dealt with;
  • offer care providers sufficient time to study a proposal for additional contracting or and amendment to a multi-year agreement, and ask questions; and
  • publish both substantive and procedural changes to the procurement process in a timely manner and in the same way as the procurement policy (see here for our blog).

• Check whether the procurement policy contains sufficient information on the seven requirements in Article 4 of the Healthcare Procurement Regulations. Above all, do this in good time and, if necessary, submit written questions to the healthcare insurer, also requesting a prompt and sufficiently concrete response.
• The NZa has made a number of changes to the Healthcare Procurement Regulations, effective 1 April 2024. In principle, for instance, and unless otherwise agreed, healthcare providers and healthcare insurers must respond to each other’s questions and comments within two weeks (see Article 5).
• The NZa is also responsible for enforcing the NZa Regulations on the Provision of Information by Health Insurers to Consumers. Those regulations contain mandatory rules for healthcare insurers on their provision of information to consumers. These rules also have implications for healthcare providers, for instance providing relevant information on the choices available to consumers, to enable them to make an informed choice (see our blog on this subject).
• Healthcare providers in their turn must comply with the Healthcare Providers Transparency Regulations. In those regulations, the NZa explains what information healthcare providers may provide to consumers. Healthcare providers may share objective and factual information about the care they provide and about healthcare insurers with consumers. Consumers may not be misled in the process.

2. Procurement policy not in line with the Healthcare Procurement Regulations? Notify the NZa.

• If a healthcare insurer has not published any, or only an incomplete, procurement policy by 1 April 2024, that may constitute a violation of the Healthcare Procurement Regulations.
• By means of a signal or enforcement request, the NZa can be requested to force the healthcare insurer to adjust or supplement its healthcare procurement policy, so that the desired transparency can be created. Please note, however, that the healthcare insurer must adjust the procurement policy in accordance with the mandatory rules of the Healthcare Procurement Regulations. For instance, certain changes after 1 April 2024 to the 2025 procurement policy must not only be made in a timely and reasoned manner, but also in the same manner as that in which the policy was previously announced by the healthcare insurer in question. The NZa warned both Menzis (here) and Zorg en Zekerheid (here) about this as recently as last year, because they had failed to properly publish a change in their healthcare procurement policy.
• If healthcare insurers violate the Healthcare Procurement Regulations, it may also be worthwhile for duped healthcare providers to litigate in the civil courts. Practice has shown that the courts are increasingly critical of healthcare insurers that refuse healthcare providers a contract on grounds that are not or not clearly stated in their procurement policy – all the more so if there are increasing waiting lists, for instance for medical specialist care, mental healthcare or GP care.

3. Healthcare insurer’s procurement policy is unclear

• If, for instance, the healthcare insurer wishes to proceed with selective care procurement, you should immediately inquire about the spearheads and related criteria it uses (and refer to Article 4 of the Healthcare Procurement Regulations). If it is insufficiently clear, see point 2, point 4 and point 9.
• If a healthcare insurer is unclear about the possibilities of indexation due to increased costs, it is advisable to inquire about this in writing. This will ensure timely clarity on this point. In principle, healthcare insurers must respond to enquiries with a sufficiently clear answer within two weeks.
• If you suspect that a healthcare insurer’s procurement requirement will lead to an increased administrative burden, point this out to the healthcare insurer immediately (for tips, see also this blog).

4. Ask for clarification of any points that are unclear in the procurement policy

• Failure to do so immediately could be disadvantageous for the healthcare provider. It could then be argued that the clarification was not requested until much later and it is no longer opportune to clarify or adjust points, or that the healthcare provider has forfeited its rights (see point 8).
• Always ask further questions if necessary (while referring to Articles 5, 7 and 8 of the Healthcare Procurement Regulations). Do not settle for an incomplete or ambiguous answer. The NZa requires the healthcare insurer to give a clear and substantive response to questions and comments from healthcare providers (see also here and here for our blogs). Both the healthcare insurer and the healthcare provider must thereby respond in a timely manner (within two weeks) to comments or questions raised.
• If necessary, inform the healthcare insurer that if it fails to provide a (conclusive) response, you will be forced to consider legal action, while referring to Article 5 of the Healthcare Procurement Regulations (see point 8). That legal action might consists of, for instance, requesting the NZa to take enforcement action for violation of the Healthcare Procurement Regulations.

5. Take the lead in the process and inform

• Submit a proposal (with procedural agreements) to the healthcare insurer and/or report which points must in any event be included in order to reach a contract.
• State as early as possible where bottlenecks in the contracting are foreseen, such as a lack of indexation due to increased wage or other costs.
• If necessary, point out to the healthcare insurer the impending violation of obligations under the Healthcare Procurement Regulations (see point 2) and/or the duty of care (see also point 11).
• If the healthcare insurer opts for exclusive contracting and does not enter into an agreement as a result, but this is foreseeably incompatible with the proper fulfilment of its duty of care, point this out to interested parties, such as the NZa, but also patient associations. This will ensure that they are informed of the consequences in good time and they too can take enforcement action (NZa) or call the healthcare insurer to account (patients’ association).

6. Record in advance who will be in contact with each other and when

• This will ensure that consultations for the purpose of the contracting process are not suboptimal, because matters that have previously been explained or agreed need not be discussed again with other persons.
• Arrange for consultation with persons who have the mandate to take the desired decisions on behalf of the healthcare insurer. When in doubt, enquire by e‑mail, for the sake of procedural efficiency, before doing business, whether and what mandate the relevant contact person has with the healthcare insurers.

7. Timely explore the possibility of contracting more efficiently

• Healthcare insurers must strive to reduce the administrative burden for healthcare providers, among other things, under the IZA. Be alert to purchasing and other requirements that increase your administrative burden and point this out to healthcare insurers in good time (see also this blog for other tips on this point).
• Explore the possibilities of cooperating in contracting within the framework of the Competition Act, such as cooperation between non-competing healthcare providers or cooperation that benefits from the de minimis provision in the Mededingingswet (Competition Act). Or use benchmarking: see our video briefing on that subject.
• Using a healthcare broker or other representative can relieve the healthcare provider and bring about a more efficient healthcare procurement process for both the healthcare provider and the healthcare insurer. Exploring the possibility of using a healthcare broker also qualifies as one of the Sound Contracting Practices, according to the NZa.
• The Minister of Health, Welfare and Sport has also stated that there is room for cooperation between healthcare providers in healthcare procurement, while referring to this example.
• Please note that a collective boycott of healthcare contracts violates the Competition Act, the ACM previously confirmed. Mutual contact between healthcare insurers on whether or not to contract healthcare providers is equally prohibited, in principle. Healthcare insurers and Zorgverzekeraars Nederland must also respect the cartel prohibition.

8. Be alert to timing and deadlines

• According to Article 7(1) of the Healthcare Procurement Regulations, the healthcare insurer is obligated in the healthcare procurement process to allow a reasonable period of time for healthcare providers to study the proposal and ask questions. This also applies to a proposal for additional contracting or an amendment to a multi-year agreement (see here for our blog).
• Under Article 7(2) of the Healthcare Procurement Regulations, the reasonable period is at least four weeks, unless the parties agree otherwise.
• Check in good time whether time limits set are indeed reasonable. If necessary, request the NZa to take enforcement action for violation of Article 7 of the Healthcare Procurement Regulations.
• If a response time for submitting certain data is too short, ask the healthcare insurer for an extension, with reference to Articles 5 and 7 of the Healthcare Procurement Regulations. If applicable, report that certain points in a contract proposal are insufficiently clear or that relevant documents of the healthcare insurer have not been made available or have been made available later than anticipated.
• Article 6 of the Healthcare Procurement Regulations states that in sectors where the healthcare provider offers a tender, the healthcare provider must do so by 1 October 2024 at the latest.
• Under Article 8 of the Healthcare Procurement Regulations, healthcare insurers must disclose all changes in the information made available under Article 4 of the Healthcare Procurement Regulations no later than 1 April 2024 in the 2025 procurement policy in a timely and substantiated manner, in the same way in which the procurement policy was published. If this is not done, point this out to the healthcare insurer and, if necessary, request the NZa to take enforcement action.
• The government and the NZa want care to be contracted in good time. Healthcare insurers must announce the new surrender values no later than seven weeks before the end of the calendar year (12 November 2024). At that time, according to the NZa, it must also be known which healthcare provider the healthcare insurer has contracted.

9. Monitor the procedure and time limits and seek timely advice

• Monitor the procedure. If necessary, send an e-mail reminder in the event of failure (or imminent failure) on the part of a healthcare insurer to meet the deadlines, and make a new proposal. This way, should there be a long delay, it can be indicated that this may not be at the expense of the response time that the healthcare insurer gives to the healthcare provider and that an appropriate solution must be found (with reference to the obligation to use reasonable time periods aet out in Article 7 of the Healthcare Procurement Regulations).
• If a healthcare insurer refuses to answer a question (or to do so sufficiently clearly), refer to the fact that Article 5 of the Healthcare Procurement Regulations provides that the healthcare insurer must be sufficiently available to respond to questions and comments from healthcare providers until the moment the contracts are entered into. The healthcare insurer must also provide a clear, substantive response to questions and comments from a healthcare provider in a timely manner (see here and here for our blogs).
• Prepare the contracting process in good time or have it done for you (see point 7). In order to communicate with and respond to the healthcare insurer during the contracting process in a well-founded manner, it is advisable to have relevant data available in good time. Benchmarking is permitted, provided that it is done within the framework of the Competition Act. Click here for more information.

10. Monitor your legal position

• Obtaining legal advice quickly and efficiently and taking legal action if necessary is possible in particular if a case is properly documented.
• With this in mind, it is advisable to draw up reports (e.g. by e-mail) of consultations with healthcare insurers. After consultation, send these to your contact person at the healthcare insurer.
• Do not be discouraged by a reaction that reports will not be used or will not be responded to. In order to quickly appeal to the NZa to successfully invoke the Healthcare Procurement Regulations, it is good if you can immediately show why the healthcare insurer is violating obligations under the Healthcare Procurement Regulations and why enforcement action by the NZa is required. Sound documentation also comes in handy when applying to the Dispute Settlement Authority or the civil courts.
• Bear in mind that healthcare insurers are bound by the duty of care and care procurement duty also if they do not have a dominant position under the Health Insurance Act, and that the NZa supervises compliance with the duty of care (see also point 11). More information can be found in this blog.

11. Aim for duty of care enforcement request

• The duty of care and healthcare procurement duty are set out in Article 11 of the Health Insurance Act and rest exclusively on healthcare insurers (not on healthcare providers). Practice has shown that proactive fulfilment of this duty of care does not always go without saying for healthcare insurers.
• It would appear that the NZa is becoming aware of the need to ensure enforcement of the duty of care. It announced on 12 March 2024 that it had imposed a formal measure on two healthcare insurers (CZ and Menzis) for failing to fulfil their duty of care. At the same time, the NZa found that Zilveren Kruis and VGZ were also failing to properly fulfil their duty of care.
• Do you have the impression that healthcare insurers are not procuring (or willing to procure) sufficient care to meet the demand for care in a region? Then explore your options for submitting a signal or enforcement request to NZa. You then make a (formal) request to the NZa to enforce the duty of care in relation to a healthcare insurer. This blog provides more information on what monitoring compliance with the duty of care can mean for healthcare providers.

Explore your legal position in good time

Healthcare providers have been faced with significant cost increases in recent years. Many healthcare providers cannot (indefinitely) absorb the current cost increases in the absence of realistic tariffs. In the future, care must be organised differently to meet the increasing demand. Moreover, the increasing administrative burden (among other things) is leading to increased work pressure, decreased job satisfaction and especially a shortage of hands at the bedside. This is affecting the continuity of the care, while the demand for care is increasing. Contracts that allow care providers to get by also in a tightening labour market are now more important than ever. If, as a healthcare provider, you find that the healthcare insurer has no or insufficient regard for your interests, it is wise to explore legal and other steps in good time.

For more information, please visit www.zorgcontractering.com

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