The Dutch Healthcare Authority (“NZa”) ensures that health insurers properly inform consumers. That is also important for healthcare providers, since consumers search the healthcare providers’ online care finders to see whether or not their health insurer has a contract with a healthcare provider and whether, for instance, a turnover ceiling applies. That influences the consumers’ choices and has consequences for healthcare providers, such as the decision whether or not to take out certain health insurance and whether or whether or not to opt for a contracted healthcare provider. The NZa recorded the rules on the provision of correct information by health insurers in the Regulations on the Provision of Information by Health Insurers to Consumers (the “2019 Regulations”). The NZa recently published the new NZa Regulations on the Provision of Information by Health Insurers to Consumers (the “New Regulations”). The New Regulations will enter into force on 1 April 2022. This blog addresses the consequences of the New Regulations. It also explains the effects that the New Regulations will have on healthcare providers. The role played by the NZa and the Netherlands Authority for Consumers & Markets (“ACM”) in the supervision of the provision of information by health insurers is also discussed.
NZa: from more information to usable information
By introducing the New Regulations, the NZa hopes to ensure that the information provided by healthcare insurers better supports consumers in making a well-considered choice for the right policy. The NZa has found that, in practice, more information about healthcare and healthcare insurance does not always help people make a good choice. A “switch from more information to usable information” was therefore required, according to the NZa. The NZa has not disclosed the exact empirical basis for that switch.
Care finders and turnover ceilings
Article 10 of the New Regulations relates to information on contracted care, non-contracted care, volume agreements and turnover ceilings. It is apparent from the explanatory notes to Article 10 of the New Regulations that health insurers must always provide certain basic information on these subjects. The information that must be provided under the New Regulations is very similar to the information that health insurers were already required to disclose under the 2019 Regulations. Health insurers must still, for instance, state (i) whether and (ii) for what types of care a contract has been entered into with a healthcare provider, (iii) whether choosing a non-contracted provider leads to lower reimbursement for the insured, and (iv) for what period a contract has been entered into. If applicable, (v) lists of reimbursement rates must also be shown.
According to the NZa, these (online) “care finders” of health insurers must contain “all information that is relevant to consumers”. The health insurers’ care finders must therefore be up to date: if a contract has been entered into with a provider but that provider is not (yet) listed on the health insurer’s website, consumers are denied information that is relevant to their choice of basic or supplementary health insurance. During the switching period, health insurers must disclose the contracting state of affairs in their care finders. Health insurers must also state there when they apply turnover ceilings or make volume agreements with healthcare providers, as well as the consequences involved for consumers. All of these points also formed part of the 2019 Regulations. Health insurers must also make it clear how often the list (often included in the health insurers’ online care finders) of contracted providers is updated and when that was last done. Competition between health insurers has not yet led them to voluntarily update their care finders for their (potential) insured on a daily basis. In today’s society, digitalisation is a fact of life, and online up-to-date and accurate information on a legally required product (basic health insurance) is of great importance. Against this backdrop, it is remarkable that, on the introduction of the New Regulations, the NZa did not opt to obligate health insurers to update their care finders on a daily basis (in any event during the annual switching period).
A change compared to the 2019 Regulations is that health insurers had to disclose whether they selectively enter into contracts and, if so, how they selects healthcare providers in doing so. That provision no longer forms part of the New Regulations. Health insurers are also no longer required to state how the amount of the reimbursement for consumers for non-contracted care is calculated. In sum, the NZa is loosening, rather than tightening, the reins for the health insurers.
12 November: contracted care known
The explanatory notes to the 2019 Regulations state 12 November as the deadline by which health insurers must disclose the new premiums. By that date, health insurers must also publish the care they have contracted at that time. The NZa recently stated that the contracted care “should already be known insofar as possible at the start of the switching season on 12 November 2021.” This earlier appeal of the NZa was not very successful. In 2021, as in previous years, negotiations with many healthcare providers were still well underway by 12 November. Although the NZa no longer expressly refers to 12 November as the date by which the premiums must be disclosed (seven weeks before the end of the year), that obligation is still in force under Article 17 of the Zorgverzekeringswet (Healthcare Insurance Act). Also in this respect, the NZa still accepts the fact that health insurers do not complete their contracting process in time. That is at odds with the adequate fulfilment of the statutory duty of care of health insurers and is not beneficial to a well-considered selection of a policy by consumers during the annual switching period, because it is not yet certain what contracts have been entered into and with which care providers. Healthcare providers obviously also play a role if a contracting process takes longer, but there is usually no reason for a healthcare provider not to sign a reasonable contract with a health insurer that is offered in time (before 12 November).
Timeliness and accessibility of care
The 2019 Regulations provide that health insurers must state on their websites which types of care are subject to standards of timeliness and accessibility. A case in point is the Treeknormen (the standards regarding the agreed maximum acceptable waiting periods). Those standards are relevant to the fulfilment of the duty of care that, under Article 11 of the Healthcare Insurance Act, applies exclusively to each health insurer. Standards of timeliness and accessibility always had to be specified per type of care. Article 21 of the New Regulations also refers to transparency regarding the duty of care, but the wording of the article is now broader. Under the New Regulations, health insurers must provide “adequate information” on standards of timeliness and accessibility. In the explanatory notes to the new article, the NZa refers to the Policy Rules on the Supervisory Framework for the Duty of Care of Health Insurers under the Healthcare Insurance Act, which includes standards regarding timeliness and accessibility. It is no longer expressly apparent from the NZa's explanatory notes that health insurers must state which standards apply to each type of care. The question is what information health insurers themselves consider “adequate” and will share with consumers. In the explanatory notes to Article 21 of the New Regulations, the NZa does acknowledge that it is important for consumers to know, for instance, whether or not a care provider that exceeds a volume agreement or care ceiling has assumed the obligation to continue to provide care. Health insurers must therefore continue to disclose that information. In practice, we do not expect Article 21 of the New Regulations to lead to major changes for healthcare providers. On balance, the ball is still in the health insurers’ court where the duty of care is concerned. Neither the introduction of the New Regulations nor the NZa’s enforcement (or general duty to enforce) has changed that legal framework.
Open standards: appropriate or asking for trouble?
The NZa previously observed that health insurers do not always comply with all the obligations under the 2019 Regulations – see also this blog. Earlier still, the NZa stated that it had called health insurers to account for gaps in the provision of information to consumers. We observed that it would make sense for the NZa to more strictly enforce the existing mandatory rules that apply to health insurers (see also here, here and here), since failure to comply with those rules may be harmful to healthcare providers and consumers, and punitive action by the NZa might prevent repeat offences. It is remarkable that, despite earlier findings, the NZa’s New Regulations give health insurers “as much room as possible” themselves to interpret those regulations. It was previously observed that the New Regulations require health insurers to observe hardly any specific standards and specific obligations. That does not appear to be the case, however, since a large part of the 2019 Regulations remains unchanged. It is remarkable, however, that the NZa is now in fact opting for open standards and is openly considering allowing health insurers themselves to fill in the details. Applying open standards does not usually make the enforcement of mandatory NZa rules any easier. Moreover, enforcement is necessary: practice has shown that health insurers have for many years year not complied (or been willing to comply) with even a simple set of mandatory NZa rules. That can be said of the 2019 Regulations, but also of the Regeling Transparantie zorginkoopingsproces Zvw (Regulations on Transparency in the Healthcare Procurement Process under the Healthcare Insurance Act – the “Healthcare Procurement Regulations”) (see here, here and here).
It is remarkable that the NZa often postpones the imposition of fines on health insurers for a long time or even refrains from doing so. The NZa often first issues warnings for a long time (see here, here and here) before imposing sanctions, if any, when it establishes violations of mandatory NZa regulations. Health insurers furthermore know that the NZa also imposes very low fines for violations of mandatory rules, even in the case of repeat offences (see here). As a result, health insurers are not (or not easily) inclined to change their behaviour (see also here). Health insurers are therefore aware that they need not fear (appropriate) sanctions being imposed by the NZa. That has a disastrous effect on compliance by health insurers with statutory and other mandatory rules. The approach that the NZa is now taking by introducing the New Regulations, offering greater freedom to health insurers, is therefore not without risk. It is also very unlikely to eliminate certain chronic problems.
Policy jungle not restricted
It is remarkable, for instance, that the NZa could have put an end to the policy jungle by means of the New Regulations, but has failed to do so. Health insurers have been vague for many years about very similar health insurance policies (see also here and here). The New Regulations set no rules to reduce the policy jungle. This approach of the NZa is all the more remarkable because both the NZa and ACM have recognised for many years that the appearance of choice in the mandatory basic health insurance (the policy jungle) is undesirable (see also this blog). That has allowed health insurers for many years to keep the policy jungle in place: it even appears to be growing. In sum, this is a missed opportunity, but it does fit the pattern of the NZa and ACM placing a great deal of trust in health insurers and not putting too much pressure on them.
Special position of health insurers at the NZa and ACM
There is also an increasing contrast between the supervision of health insurers and other companies (including healthcare providers) by the NZa and ACM. At the health insurers’ insistence, the NZa regularly warns healthcare providers (without first demonstrating that they have done anything illegal) that they may not provide consumers with incorrect information, under threat of fines (see here and here). At the same time, the NZa leaves concrete violations regarding the mandatory provision of information by health insurers unpunished, only to loosen the reins for the insurers in the New Regulations. Meanwhile, increasing attention is being paid to the provision of more and correct information, and to combating the appearance of choice, with regard to almost all companies other than health insurers. Year after year, ACM is increasingly focussing on countering the misleading of consumers (also online) and the appearance of choice, as in the case of sustainability labels. Although help in making sustainable choices is obviously of great importance, those efforts are not focussed on mandatory products or services. For years now, ACM has been imposing (high) fines for violation of the rules that apply to the sale to consumers of non-mandatory products or services, such as rent agencies, bicycles, mobile phone contracts, kitchens and spam. Other campaigns of ACM to protect the interests of consumers are addressed in this blog and at consumentrecht.info. In light of these facts, it is all the more remarkable that ACM, with of without the NZa, has failed for many years to effectively intervene in the appearance of choice in the mandatory basic health insurance and to curb the policy jungle (see also this blog).
In short, the contrast between the NZa’s and ACM’s enforcement activities regarding the sale of non-mandatory and mandatory products and services (basic health insurance) is increasing by the day. Be that as it may, consumers should be able to rely in respect of the annually mandatory basic insurance on supervisory authorities NZa and ACM to take timely and effective enforcement action when shortcomings are identified, and not to relax the rules until order has been restored. The fact that the NZa (and ACM) allow the policy jungle to exist, let health insurers do as they please, and relax the rules, even when health insurers demonstrably do not have essential and fundamental issues in order during the switching season, is therefore food for thought.
To summarise: the New Regulations are a missed opportunity. They ignore the reality that health insurers will not improve matters sufficiently fast of their own accord: rather, specific mandatory rules and effective enforcement are required in this respect. With the New Regulations, the NZa appears to be putting the regulation of health insurers on the back burner. At the same time, ACM is leaving the supervision of the provision of information by health insurers to the NZa. A properly functioning healthcare system requires effective supervision of all the parties involved; double standards in healthcare are not the answer. It is high time for a fundamental overhaul of this policy.
More information can be found at www.zorgcontractering.com.
