The amended NZa Regulations on Transparency of the Healthcare Procurement Process under the Healthcare Insurance Act (the Healthcare Procurement Regulations) came into force on 1 April 2024. According to the Dutch Healthcare Authority (NZa), their objective is to speed up the contracting process, so that consumers know what they are choosing when taking out an insurance policy. In this blog we outline the changes to the Healthcare Procurement Regulations. In doing so, we will demonstrate why the NZa’s aim will not be achieved by means of those supplemented Regulations.
In 2023, we observed in Zorgvisie how the NZa could quickly and easily ensure that persistent problems, such as increasing waiting lists (related to the duty of care and care procurement duty), are addressed by supplementing the Healthcare Procurement Regulations. The NZa ignored our observations. In this blog, we explain why, in light of the stance adopted by the health insurers and Zorgverzekeraars Nederland (ZN), that position is no longer tenable. The NZa will have to further supplement the Healthcare Procurement Regulations. We make three specific suggestions to the NZa below.
NZa Good Contracting Practices
The NZa reports just about every year that the contracting process is laborious on many points. It amended the Healthcare Procurement Regulations in the past already (see this blog). In September 2023, the NZa furthermore published the Good Contracting Practices Information Card: an overview of regulations and guidelines. These guidelines do not set out any mandatory rules. The NZa did announce, however, that if its guidelines also fail to provide a solution, a notification may be made. Surveys have shown that many people are unsure during the insurance switching season because the healthcare contract negotiations are a laborious process. Contract negotiations sometimes continue beyond 1 January (see our blog on the 2025 healthcare procurement). As a result, it is often unclear to insured persons what will be reimbursed under each policy offered. This problem is not new, but the NZa now wishes to speed up the contracting process by making three changes to the Healthcare Procurement Regulations.
Three changes to the Healthcare Procurement Regulations
The NZa has made three changes to the Health Procurement Regulations:
- Article 5 of the Healthcare Procurement Regulations imposes a new obligation on both healthcare providers and health insurers. Both parties must now provide a substantive response within a two-week period to questions and comments from other parties. By imposing this obligation, the NZa aims to make the procurement process more efficient.
- In the amended Healthcare Procurement Regulations, the deadline for submitting a realistic offer is now the same for both digital and face-to-face contracting. The Good Contracting Practices provided that the deadline for digital contracting was 1 September – but that was merely a guideline. The amended Healthcare Procurement Regulations now set the deadline for both contracting options at 1 October.
- In addition, it follows from Article 6 of the Healthcare Procurement Regulations that only healthcare providers are required to submit a realistic offer to the health insurer by 1 October (2024) at the latest as far as no digital contracting is involved and no other deadline has been agreed between the parties. It thereby applies at all times that the offer (or the health insurer’s contract proposal) must be accompanied by a sufficiently clear and substantive explanation. That latter point is a favourable development. The NZa thereby finally specifies what may be expected with regard to the justification of the proposal: in this context, a realistic offer does not mean that the offer is feasible in practice, but rather that it is a fully-fledged offer, meaning that the proposal in any event does not contain any memorandum items or provisional items that have yet to be specified. The NZa also explains that the following should be considered with regard to the substantive explanation of the contract proposal:
- the implementation of wage and price increases;
- the volume structure (if applicable);
- a substantiation of the benchmarking method; and
- a further explanation of the achievement of the proposed objectives in administrative agreements or regional/supra-regional plans that have been incorporated in the offer and the contract proposal, as well as the contribution to the societal challenge, etc.
The obligations regarding the substantive explanation are favourable in principle. It is clear what both sides may expect of each other. But the NZa also introduced the other changes in order to make the contracting process smoother and faster. That objective will not be achieved by means of this approach.
Missed opportunity I: no deadline set for health insurer
Health insurers are not obligated to submit a contract proposal by 1 October in the case of parties that are not digitally contracted. In the case of non-digitally contracted healthcare providers, the health insurer is bound only by the 12 November deadline: the contracting must have been completed by that date. However, as the NZa knows, that deadline is not binding. Even though health insurers are exclusively under a duty of care and care procurement duty, the NZa does not set them a deadline for offering contracts to healthcare providers with which they do not digitally enter into contracts (in the form sign-on-the-dotted-line contracts).
If the NZa really does wish to make the contracting process faster and more efficient, several other actions are conceivable. In light of the powers arising from Article 45 of the Wet marktordening gezondheidszorg (Healthcare (Market Regulation) Act), we suggest the following:
- Suggestion 1: Amend Article 8 of the Healthcare Procurement Regulations in such a way that health insurers must publish their healthcare procurement policies by 1 March (instead of 1 April) at the latest. That will give both healthcare providers and health insurers more time to consider the contracting process.
- Suggestion 2: Amend Article 6 of the Healthcare Procurement Regulations: bring the deadline for offering a contract forward from 1 October to 1 September for both digital and face-to-face contracting. The contracting (including negotiations, where applicable) must be completed by 12 November. Bringing forward the deadline for offering a contract will give health insurers and healthcare providers more time to interact on a contract proposal and to make an informed choice.
Timely and adequate care procurement has been a prominent statutory core responsibility of health insurers for decades (under Article 11 of the Health Insurance Act). There are no compelling reasons why health insurers cannot be required to comply with the two points listed above (Suggestions 1 and 2). They are primarily measures aimed at ensuring that the contracting process starts sooner and can therefore be completed earlier in the year. No health insurer can or may be opposed to this, since they must procure not only adequate but also timely care. This will ensure that current and potential policyholders will know by 12 November at the latest which parties have or have not been contracted.
Missed opportunity II: temporary and targeted ban on care caps missing
It is now crystal-clear that the NZa must effectively enforce the duty of care and healthcare procurement duty. The harrowing circumstances in the mental health sector (among others), in which 100,000 people are on waiting lists, require the NZa to do more (see this blog). The fact that the NZa recently (again) found that none of the four major health insurers is complying with the duty of care briefly hit the news headlines. The fact that the NZa imposed an order on two insurer was also in the news. The problem is and remains that (i) health insurers are by no means impressed (see this blog); and (ii) the NZa is not striking at the root of the problem.
The chairman of the board of ZN announced in the NRC newspaper that the ball is not in the health insurers’ court, after the NZa had imposed orders on CZ and Menzis in the context of the duty of care: “The NZa in fact recently concluded that insurers are doing too little to balance supply and demand in the care sector.” The ZN chairman replied: “The waiting lists are the issue. But insurers have hardly any insight into them. They don’t know which insured are on which waiting list. The insured should actively participate in the healthcare system, not wait and see what happens. Call your health insurer if you are faced with a waiting list. They can often help by suggesting another location a little further away, where the waiting list is shorter or you might even be helped right away.”
ZN therefore believes that its members have no or insufficient insight into waiting lists and that the insured on those waiting lists are too passive. ZN’s argument is not new (they have stated before that insurers do not know who are on waiting lists). At the same time, ZN and its members are failing to act effectively and proactively. For instance, ZN members have still not bought airtime on radio, TV and the internet (either individually or jointly) to draw attention to their (alleged) solution that the insured should collectively start calling their health insurers when waiting times exceed the maximum acceptable waiting periods (Treeknormen). ESB has demonstrated that problems with excessively long waiting lists in the mental health sector are very harmful, which is also apparent from these two articles in Trouw (see here and here).
It has been suggested in the past that care caps be banned as long as the waiting lists for the care in question are too long. The Minister of Health, Welfare and Sport advised against this motion, arguing that she could not prohibit health insurers from applying care caps. But she does in fact have that option. Moreover, no legislative amendment is required in order to do so in the short term. Article 45 of the Healthcare (Market Regulation) Act allows the NZa to impose conditions on the contracting process with a view to promoting the clarity (read: transparency) of healthcare markets. We therefore advise the NZa to make use of the following option:
- Suggestion 3: A new unequivocal and temporary ban for health insurers on the use of care caps. This new ban would prohibit health insurers from setting a care cap unless they can demonstrate by 1 January that they have purchased adequate care to ensure that waiting lists remain within the maximum acceptable waiting periods. This will avoid time-consuming additional contracting processes and greater duty of care problems.
The suggestions in this blog obviously do not alter the fact that timely enforcement of the Healthcare Procurement Regulations is essential. In that regard, the suggestions made above are the result of the NZa’s failure over many years to fulfil its supervisory task regarding the duty of care and healthcare procurement duty. A start was made in March 2024, when the NZa called to account four major health insurers for failing to comply with their duty of care and care procurement duty. That was a first step, but it was insufficient (see this blog). We urge the NZa to go the extra mile. That can easily be done by amending the Healthcare Procurement Regulations. It is apparent from the way in which health insurers are currently dealing with waiting lists that exceed the maximum acceptable waiting periods that the suggestions proposed in this blog (under Article 45 of the Healthcare (Market Regulation) Act) should be implemented immediately. There are plenty of opportunities, but the NZa must be willing to use them.
More information on the rights of healthcare providers and their professional and sector associations, and on the duties of healthcare purchasers in healthcare sales, can be found at www.zorgcontractering.com.
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