The Integral Care Agreement (Integraal Zorgakkoord or IZA) is now more than 14 months old: time for an evaluation. An important gauge is whether the parties to the IZA have adhered (and are adhering) to the agreements it contains. Unfortunately, it must be concluded that healthcare procurement offices to do not always comply with the IZA. In this blog, we address the lessons that can be learnt from the available case law. We also discuss the role and status of the ACM Guidelines regarding Trade Associations and Healthcare Contracting in the context of the IZA. Finally, we call on the Ministry of VWS (Health, Welfare and Sport – the Ministry) and the Dutch Healthcare Authority (NZa) to more adequately enforce compliance with IZA agreements.
Signatories are bound by the IZA
In 2022, the Ministry, the NZa, Zorgverzekeraars Nederland (ZN) and more than ten umbrella organisations of healthcare providers signed the IZA. The IZA aims to ensure that healthcare remains reliable, accessible and affordable in the future. This requires all parties to honour the agreements made in the IZA. Minister Kuipers of the Ministry also pointed this out several times: see here and here. In doing so, he noted that the IZA pivots around trust. He wrote that “the signatures that will soon be placed on that agreement [the IZA] (...) [must] stand for something. For change. For honouring agreements.” The minister noted in that regard that the pressure on healthcare can be eased only if all the parties involved take responsibility. The minister himself did so too: he promised to closely monitor the parties in the implementation of the IZA and to call them to account if they fail to live up to their responsibilities.
This promise of the minister is significant. Failure to comply with all or part of the IZA could lead to a breach of trust among the signatories of the IZA and could threaten its continued existence. There are good reasons why that should be prevented: outline agreements/administrative agreements in the healthcare sector have been breached before by health insurers (see here, here and here). This has (understandably) caused healthcare providers, including members of the LHV (National Association of General Practitioners), to seriously question the signing of the IZA. The LHV nevertheless also signed the IZA, after urgent requests to do so from the minister (see here and here). The NZa and health insurers like Zilveren Kruis (ZK) also called for the IZA to be signed, incidentally.
IZA and case law in 2023
By signing the IZA, all the parties committed to the agreements that it contains, because established case law (predating the IZA) provides that signatories to a healthcare agreement are bound to honour agreements contained in such an agreement; see here, here and here. Despite this case law and the parties’ commitments to take responsibility, practice has shown that healthcare procurement offices do no honour IZA agreements. This has forced a number of parties to turn to the court to demand compliance with the IZA.
- In March 2023, for instance, the District Court of The Hague issued a ruling in preliminary relief proceedings in a dispute between a district nursing provider and ZK. The care provider claimed that ZK had to pay her a realistic rate for the contracted care. The court ruling in the preliminary relief proceedings in this case then answered the question whether offering a realistic rate is obligatory. The court answered this question in the affirmative, because without a realistic rate ZK would not allow the healthcare provider to provide the requested services with the required quality and to comply with the agreements made in the IZA. The health insurer therefore could not simply ignore the IZA.
- In August 2023, the District Court of The Hague ruled in preliminary relief proceedings in a dispute between mental health providers and the CZ care administration office. The care providers were faced with a disproportionate increase in the administrative burden due to a system change announced in the CZ care procurement policy. The court ruled that such a increase in the burden is inconsistent with the IZA, precisely because that agreement provided that administrative burdens should be reduced. CZ should not have ignored that point of the IZA when purchasing care.
- Finally, in October 2023, the District Court of The Hague ruled in preliminary relief proceedings in a dispute between ZK and various providers, including hospitals of primary diagnostics. This dispute concerned the passing on of the government contribution to labour cost development. It was agreed in the IZA in this regard that health insurers would pass on that contribution in full – and without any discount – in prices and contracts (see p. 103 of the IZA). The court ruled that ZK had to take into account the government contribution agreement in the IZA when drawing up the primary diagnostics reference rates it charged, because health insurers, including ZK, are bound by the IZA via ZN and must therefore implement it correctly. It was also noteworthy that the court expressly mentioned that, unlike ZK argued, the government contribution agreement is legally admissible under competition law and that nothing stands in the way of fully factoring the government contribution into the primary diagnostics reference rates.
ACM’s Guidelines regarding Trade Associations and Healthcare Contracting
The ACM published its final Guidelines regarding Trade Associations and HealthCare Contracting (the Guidelines) on 29 September 2023. In the Guidelines, the ACM outlines the possibilities and impossibilities for trade associations in the healthcare sector to assist their members, healthcare providers or healthcare insurers, in healthcare contracting. The Guidelines follow an earlier ACM investigation into alleged influencing by trade associations of the individual negotiations between healthcare providers and health insurers. In the Guidelines, the ACM set its sights primarily on healthcare providers: see here. According to the ACM, the impression that emerged from its investigation was one of ambiguity about the scope that the competition rules provide for trade associations to play a role in individual healthcare contracting. The ACM never either qualified or quantified that ambiguity. Be that as it may, the Guidelines have no legally binding effect for either market players or courts (see here, here and here for earlier case law). The Guidelines merely reflect an opinion of the ACM. For instance, the ACM itself writes in the Guidelines that it offers “points of attention and basic principles” but “is not exhaustive in this regard”. The Competition Act therefore remains leading.
The Guidelines follow the draft Guidelines published on 14 July 2023. That draft drew criticism from various trade associations. The NVZ, for instance, wrote that the ACM was trying in its draft Guidelines to apply competition law too strictly. The draft Guidelines also hindered the implementation of the IZA, according to the NVZ. The NVZ called for a review of the draft Guidelines. ActiZ referred to the Minister’s statement that healthcare “has entered a new era, in which cooperation is more important to serve the interests of patients and the insured”. This requires a different balance between cooperation and competition, which has been given a place in the healthcare agreements. In ActiZ’s opinion, this context and its consequences for the role and position of the ACM were missing from the draft Guidelines. The ACM (rightly) made numerous changes after these and other critical reactions.
A remarkable detail was that the ACM reported in the draft Guidelines that the IZA agreement on the implementation of the government contribution to labour cost development, “read in isolation”, violates the cartel prohibition. It is of course remarkable to include such a qualification in the Guidelines, since it is established case law that agreements should not be assessed in isolation in the context of antitrust review, but rather in the context of all the relevant facts and circumstances. And the ACM had previously been reminded of this in the healthcare sector. The specific section that the government contribution agreement in the IZA, “read in isolation”, violates the cartel prohibition is rightly missing from the final Guidelines.
Also, according to the draft Guidelines, trade associations were prohibited, “because of their non-objective nature”, from giving an interpretation on the calculation of components of the government contribution percentage. It is highly questionable whether this statement is correct: partly because these agreements are objective in nature and were made with the government in the IZA and the Government Contribution Covenant. The ACM appears to have realised this (although it still refers to “aspects that may not be clear-cut” with regard to government contribution rates). According to the Guidelines, trade associations are allowed to provide an interpretation, but they may not advise their members to follow that interpretation.
The Ministry and NZa insufficiently call health insurers to account
Healthcare procurement offices ignored important aspects of agreements in the IZA in the first IZA year. As described above, this left healthcare providers with no other option than to go to court. Although they were successful in those proceedings, it is undesirable that they had to take that step.
First and foremost, it is up to the IZA parties themselves to take responsibility and live up to the agreements made, since they undertook to do so when they signed the IZA. If they fail to do so of their own accord, the Ministry and the NZa may be expected to take further action. They can and must monitor non-compliance with the IZA more closely and call parties to account if they fail to live up to their responsibilities. Not only because the Ministry and the NZa were very closely involved in the formation of the IZA and called on parties to sign it, but also because the Minister expressly promised to do so.
The Ministry and the NZa also expressly have the power to monitor compliance with the IZA agreements. Various agreements were made in the IZA to adjust the implementation of the IZA where necessary (see p. 26 of the IZA). It was agreed, for instance, that a programme team would be set up under the direction of the Ministry to monitor the progress. The purpose of this team is to drive the implementation of the IZA, to monitor the efforts made, and (also important) to make adjustments where necessary. Periodic board meetings are also held, at which the progress of the IZA is discussed. The parties may call each other to account at those meetings about failure to live up to agreements made, and may make adjustments where necessary. In sum: those possibilities have existed and still exist. It would be to the Ministry’s and the NZa’s credit if they made more effort to call healthcare purchasers to account, and in particular to do so proactively, if agreements made in the IZA are (again) not met, rather than leaving care providers no other option than to go to court.
More information on the rights of healthcare providers in healthcare sales can be found at www.zorgcontractering.com
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