Healthcare procurement 2024: exercise your rights in good time to secure a good contract!

1 April 2023 has passed, which means that health insurers must have published their 2024 healthcare procurement policies. For many healthcare providers, the mandates in the Comprehensive Care Agreement (IZA) will form part of the 2024 healthcare contracting. In 2022, the IZA was signed by, among others, the Ministry of Health, Welfare and Sport, Zorgverzekeraars Nederland (ZN) and various umbrella organisations of healthcare providers. The IZA aims to curb the rise in healthcare costs. At the same time, healthcare providers have to deal not only with (sharply) increased wage costs, but also with significantly higher prices of energy, transport and food. The increased costs will play an important role for many healthcare providers in the contracting for 2024 and in requests by healthcare providers for interim indexation of rates.

The recent ruling by the preliminary relief judge of the District Court of The Hague in a contracting dispute between Zilveren Kruis (ZK) and a provider of district nursing was remarkable. The court found for the first time that health insurers are obligated to charge realistic rates. This meant that ZK had to make a catch-up adjustment to arrive at the new rates. It was also remarkable that the preliminary relief judge expressly stated that realistic rates are necessary to comply with the agreements made in the IZA. In the IZA, healthcare providers are instructed, among other things, to energetically implement appropriate care and to de-implement inappropriate care.

This blog outlines 10 steps to secure a good contract in 2024 healthcare contracting. Well begun is half done: if you exercise your rights in good time, you will benefit from this in the care procurement later this year.

Enforcement of mandatory NZa healthcare procurement rules

• The Dutch Healthcare Authority (NZa) has drawn up the Regulations on Transparency of the Healthcare Procurement Process under the Healthcare Insurance Act (the Healthcare Procurement Regulations). The Healthcare Procurement Regulations list mandatory obligations that healthcare insurers must observe throughout the contracting process. The NZa is responsible for enforcing the Healthcare Procurement Regulations.
• The Healthcare Procurement Regulations apply to all healthcare insurers and healthcare providers with regard to the procurement of care under the Zorgverzekeringswet (Healthcare Insurance Act).
• Health insurers must (i) make it clear to healthcare providers beforehand which contract variant is being offered; (ii) state in their procurement policies how additional contracting will be dealt with; (iii) give healthcare providers sufficient time to study a proposal for additional contracting or an amendment to a multi-year agreement and ask questions; and (iv) 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).
• Healthcare providers may request the NZa to enforce the Healthcare Procurement Regulations. The NZa previously launched several investigations into violations of the Healthcare Procurement Regulations. In 2022, VGZ and Zilveren Kruis were warned. VGZ had been warned before. Menzis, DSW (again in 2021), Zorg en Zekerheid and EUCARE were also previously forced to adjust their care procurement practices. The NZa also fined VGZ (and again in 2021) and De Friesland Zorgverzekeraar (DFZ). Read more about the NZa’s fines in 2021 and 2020 (VGZ) here and here.
• If health insurers violate the Healthcare Procurement Regulations, it may pay for aggrieved healthcare providers to litigate in the civil courts. Those courts are critical of health insurers that refuse healthcare providers a contract on grounds not stated in their procurement policy (see also here for our earlier blog).
• Breach of the Healthcare Procurement Regulations is also subject to criminal prosecution under the Wet op de economische delicten (Economic Offences Act).
• The NZa applies a set of specific rules that apply to the procurement of care under the Wet langdurige zorg (Long-Term Care Act), known as the Regulations on the Transparency of the Contracting Process under the Long-Term Care Act, and the Long-Term Care Provider System of Standards Policy Regulations. See also here for our blog with tips on care procurement under the Long-Term Care Act.
• The NZa is also responsible for the enforcement of the NZa Regulations on the Provision of Information by Health Insurers to Consumers. These Regulations set out mandatory rules on the provision of information by health insurers to consumers. Those rules also affect healthcare providers. In 2021, the NZa called health insurers to account regarding their compliance with these rules. A new version of the Regulations entered into force in 2022 (see here for our blog).
• Healthcare providers must comply with the Healthcare Provider Transparency Regulations. In those regulations, the NZa explains what information healthcare providers are allowed to provide to consumers. Healthcare providers are allowed to share objective and factual information on the care that they provide and on healthcare insurers with consumers. Consumers may not be misled in the process (see here for our blog).

Healthcare providers may therefore invoke laws and regulations during the healthcare procurement process. This raises the question of what to do in healthcare sales? The following 10 steps may be taken.

1. After 1 April 2023, check the health insurer's 2024 procurement policy

• Article 4 of the Healthcare Procurement Regulations provides that the health insurer’s procurement policy must be known by 1 April 2023 (see also this blog). The procurement policy is usually presented in outline. It must, however, address at least the following aspects:

1. the various phases that make up the healthcare procurement process and the deadlines by which the healthcare provider and the healthcare insurer must respond in the various phases;
2. the accessibility of the healthcare insurer during the care procurement process;
3. the quality policy applied by the healthcare insurer during the care procurement process;
4. the minimum requirements that healthcare providers must meet in order to be eligible for a contract;
5. the extent to which the healthcare insurer offers room for innovative care provision and, if applicable, the specific requirements that the healthcare insurer sets for such innovative care provision;
6. the policy and procedure that apply in the event of additional care procurement, whereby the information will in any event address (a new addition to the new Healthcare Procurement Regulations, see this blog):

• the deadlines by which the healthcare provider and healthcare insurer must respond at the various stages;
• the manner in which a request for additional agreements may be submitted by a healthcare provider; and
• the minimum requirements against which the healthcare insurer will assess a request for additional arrangements;

7. an overview of the changes in the healthcare procurement policy compared with the previous healthcare procurement policy.

• Check whether the health insurer’s procurement policy contains sufficient information on the above seven points. You should definitely do this in good time and, if necessary, submit written questions to the health insurer, while requesting a prompt response, since health insurers tend to include in their 2024 procurement policy that healthcare providers can no longer raise objections if they have not asked questions before a certain time. Be that as it may, this gives rise to an obligation for the health insurer to respond to questions from healthcare providers in a clear and timely manner; see also Articles 5 and 6 of the Healthcare Procurement Regulations.

2. 2024 procurement policy not in keeping with the Healthcare Procurement Regulations? Notify the NZa.

• If a health insurer has not presented a procurement policy, or only an incomplete policy, by 1 April 2023, it may be in violation of the Healthcare Procurement Regulations. The NZa notes that it sets great store by healthcare providers’ input on the healthcare procurement process and on violations of the Healthcare Procurement Regulations.
• The NZa may be requested in the frm of an enforcement request to force the healthcare insurer to adjust or supplement its 2024 healthcare procurement policy. The reason for this is to ensure that the desired transparency is achieved. Please note, however, that the health insurer must amend its 2024 procurement policy in accordance with the mandatory rules in the Healthcare Procurement Regulations. For instance, certain changes made to the 2024 procurement policy after 1 April 2023 must be made not only in a timely and reasoned manner, but also in the same manner in which the policy was previously announced by the health insurer in question,

3. Obscurities in a health insurer's procurement policy?

• If, for instance, the health insurer or the care administration office wishes to base its procurement policy on selective care procurement, you should immediately inquire about the spearheads and related criteria that it is applying (while referring to Article 4 of the Healthcare Procurement Regulations). If that is insufficiently clear, see point 2, point 4 and point 9.
• If the procurement policy makes no mention of the possibilities of indexation due to increased costs, it is advisable to inquire about this in writing, to ensure timely clarity on this point.

4. Request a clarification of any points that are unclear in the procurement policy

• Failure to do so immediately may be disadvantageous for the healthcare provider. It could be argued that a clarification was only requested after a considerable time and that it is no longer opportune to clarify or adjust points, or that the healthcare provider has forfeited its rights (see point 8).
• If necessary, always ask further questions (while referring to Articles 5 and 6 of the Healthcare Procurement Regulations) and do not accept incomplete answers. The health insurer must clearly respond to questions and comments from healthcare providers (see also here and here for our blogs). It should be avoided, for instance, that certain criteria that are of great importance for care procurement are left open to multiple interpretations, also in light of the preceding point.
• If necessary, state that, in the absence of a (conclusive) answer, you will be forced to consider legal action, while referring to Article 5 of the Healthcare Procurement Regulations (see point 8). This may include requesting the NZa to take enforcement action for violation of the Healthcare Procurement Regulations. VGZ was recently warned for failing to respond to questions in a timely manner. Certain health insurers are therefore now being closely monitored by the NZa on the grounds of violations of the Healthcare Procurement Regulations previously identified by the NZa.

5. Take the lead in the process and inform relevant parties

• Submit a proposal (with procedural agreements) to the health insurer or the care administration office, or file your own report on the points that should in any event be included to arrive at a 2024 contract.
• State as early as possible where bottlenecks in the contracting are anticipated, such as a lack of indexation for increased wage and other costs. These points may concern elements included in existing contracts or points that will or may come into play as a result of changes in policy or in laws and regulations.
• If necessary, draw the health insurer’s attention to imminent breaches of obligations under the Healthcare Procurement Regulations or the duty of care.
• If the health insurer aims for exclusive contracting and you are left without a contract as a result, even though that is foreseeably incompatible with the proper fulfilment of the health insurer’s duty of care, then draw the attention of stakeholders such as the NZa, but also patient associations, to the consequences involved, so that they too are informed of this development in good time.

6. Agree beforehand on who will be in contact with whom and when

• This will prevent poor consultation for the purpose of the contracting process, because matters previously explained or agreed will not have to be discussed again with other persons.
• Ensure that consultations take place with persons who are authorised to take the desired decisions on behalf of the health insurer or care administration office.

7. Explore the possibility of more efficient contracting in a timely manner

• Explore the possibilities of working together in contracting within the frameworks of the Competition Act, for instance in the form of cooperation between non-competing healthcare providers or cooperation that benefits from the de minimis provision of the Competition Act.
• The engagement of a healthcare broker or other representative may relieve the healthcare provider and lead to a more efficient healthcare procurement process for both the healthcare provider and the health insurer. According to the NZa, exploring the possibility of using a healthcare broker also constitutes one of the Good Contracting Practices.
• The Minister of Health, Welfare and Sport has also stated that there is room for cooperation between healthcare providers in healthcare procurement, referring to this example.
• Please note that ACM confirmed in 2017 that a collective boycott of healthcare contracts in primary care is contrary to the Competition Act.

8. Beware of timing and deadlines

• Article 6(1) of the Healthcare Procurement Regulations provides that in the healthcare procurement process the healthcare insurer is obligated 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 6(2) of the Healthcare Procurement Regulations, the reasonable period is at least four weeks, unless the parties agree otherwise.
• Check in good time whether deadlines set are actually reasonable. If necessary, request the NZa to take enforcement action for violation of Article 6 of the Healthcare Procurement Regulations.
• If a response time for submitting certain data is too short, ask the healthcare insurer or care administration office for an extension with reference to Article 6 of the Healthcare Procurement Regulations. If applicable, report that points in a contract proposal are insufficiently clear or that relevant documents of a healthcare insurer, care administration office or third party have not been made available or have been made available later than anticipated.
• Under Article 7 of the Healthcare Procurement Regulations, health insurers are obligated to disclose all changes in the information made available under Article 4 of the Healthcare Procurement Regulations by 1 April 2023 at the latest, both (i) in a timely manner and (ii) supported by reasons. If a health insurer fails to do so, draw its attention to this and, if necessary, request the NZa to take enforcement action.
• The government and the NZa want healthcare to be contracted in good time. Health insurers must announce the new policy values no later than seven weeks before the end of the calendar year (12 November 2023). By that time it must also be known which healthcare provider the health insurer has contracted.
• If a health insurer wants (i) to treat healthcare providers equally; (ii) to be able to announce at least seven weeks before the end of 2023 which healthcare provider has been contracted for 2024; and (iii) to apply a reasonable deadline of at least four weeks, it will have to make its contract offer to healthcare providers by mid-October 2023 at the latest.

9. Monitor the procedure and deadlines, and seek advice in good time

• Monitor the procedure. If necessary, send an e-mail reminder as soon as the insurer or the care administration office exceeds or threatens to exceed the deadlines, and submit a new proposal. This way, in the event of a long delay, it can be indicated that this may not be at the expense of the response time that the healthcare insurer or the care administration office gives the healthcare provider, and that an appropriate solution must be found (refer to the obligation to apply reasonable time periods set out in Article 6 of the Healthcare Procurement Regulations).
• If a healthcare insurer refuses to answer a question, refer to the fact that Article 5 of the Healthcare Procurement Regulations provides that the health insurer must be sufficiently available to answer questions and remarks from healthcare providers until the cntracts are signed. The health insurer should also give a clear and timely response to questions and comments from care providers (see here and here for our blogs).
• Prepare the contracting process in good time or have it done for you (see point 7). To be able to communicate with and respond to the health insurer or care administration office during the contracting process in an informed 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 position (legal and other)

• Obtaining legal advice quickly and efficiently and taking legal action if necessary is possible in particular if you have compiled a thorough file.
• Partly in light of the above, it is advisable to draw up reports (e.g. by e-mail) of consultations with a health insurer or care administration office. Send those reports to your contact at the health insurer or care administration office after the consultations.
• Do not be discouraged by a response that they will disregard reports or will not respond to them. In order to quickly and successfully invoke the Healthcare Procurement Regulations at the NZa, it is helpful if you immediately demonstrate why obligations set out in the Healthcare Procurement Regulations are being violated by the health insurer and why enforcement action by the NZa is required. Sound documentation also comes in handy when seeking recourse to the Disputes Authority or the civil courts.
• Bear in mind that health insurers are bund by the duty of care also without a dominant position under the Healthcare Insurance Act, and that the NZa supervises compliance with the duty of care. More information on this point can be found here.

Health insurers’ duty of care/care procurement duty

The duty of care/care procurement duty is set out in Article 11 of the Healthcare Insurance Act and rests exclusively on health insurers (and not on care providers):

• The NZa published guidance for health insurers on the implementation of the duty of care/care procurement duty (see here and here for our blog).
• More information is provided in this blog about what monitoring compliance with the duty of care can mean for healthcare providers.
• In certain circumstances, according to both the Trade and Industry Appeals Tribunal and the Supreme Court, care providers may invoke breach of the duty of care if a health insurer fails to procure sufficient care for its contracted-care insured.

The Healthcare Procurement Regulations are clear: health insurers must make clear in their procurement policies by 1 April 2023 at the latest what criteria they apply when offering or rejecting contracts. This also applies to setting or adjusting turnover caps (see also here). If health insurers fail to do so, or if they change their 2024 procurement policies after 1 April 2023 without complying with Article 7 of the Healthcare Procurement Regulations, this will have legal consequences both with regard to the NZa and the civil courts. For aggrieved healthcare providers, it may be worthwhile to apply to the NZa and/or to litigate before a civil court (see also here for our blog).

Realistic rates and indexing in Health Insurance Act contracts

In principle, health insurers are free to decide with whom they want to enter into an agreement. This freedom is not unlimited. The preliminary relief judge ruled on 3 March 2023 that health insurers must apply realistic rates. Moreover, it follows from case law (see here, here and here) that judges – rightly – attach value to the fact that healthcare providers must be able to rely on it that health insurers comply with their own procurement policies (and the Healthcare Procurement Regulations).

Explore your legal position in good time

Many healthcare providers cannot (indefinitely) absorb the current cost increases, such as those caused by inflation, without appropriate tariffs. This will (eventually) affect the provision and continuity of healthcare. Partly in light of precontractual good faith that determines the relationship between healthcare providers and health insurers, as well as their duty of care and the Gedragscode Goed Zorgverzekeraarschap (Healthcare Insurance Code of Conduct), health insurers are obligated to take the interests of healthcare providers into account in a timely manner (see here, here and here). The same applies during 2024 care contracting, in which the agreements in the IZA also play a role. Among other things, the IZA requires care providers to ensure that patients in every region have access to multidisciplinary (more substantial) mental healthcare, and to prioritise prevention and acute care. Cross-domain cooperation between the social domain, GP care, mental healthcare, district nursing and specialist medical care must also improve, so that people can receive appropriate care sooner. In short, a great deal is being asked of healthcare providers. Care providers that find that the health insurer(s) are not or are insufficiently taking this into account are advised to explore in good time whether legal steps should be taken (also before the 2024 agreement is signed) to at least obtain cost-covering tariffs and/or fulfilment of agreements in the IZA.

More information can be found at www.zorgcontractering.com.

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