The NZa Mental Healthcare Contracting Monitor 2022 (the “Monitor”) was published this summer. The Dutch Healthcare Authority (“NZa”) publishes a new version of the Monitor every year. Before the publication of the Monitor, the NZa enquires about the contracting process among healthcare providers and healthcare insurers. In the Monitor, the NZa then identifies the developments in the field of mental healthcare contracting. It discusses, for instance, turnover ceilings, bans on new admissions, waiting lists and regional collaboration.
Additional contracting: a laborious and time-consuming process, according to the NZa
In the Monitor, the NZa also discusses the “additional contracting” process. For years, mental healthcare providers have been faced with turnover ceilings unilaterally imposed by the health insurers. When a turnover ceiling is reached, the mental healthcare provider often receives no reimbursement, or sometimes much lower reimbursement, for the care that is nevertheless provided. This has major financial consequences for healthcare providers and can be a reason for setting a longer time schedule for the inflow of patients, or even for a ban on their admission. When a turnover ceiling is about to be reached, mental healthcare providers are forced to enter into negotiations with health insurers again, in order to adjust the ceiling (“additional contracting”). Also the NZa reports that the additional contracting process creates a significant administrative burden for healthcare providers and is often a laborious process. It is apparent from the Monitor that four health insurers submitted information to the NZa about requests for additional contracting. Health insurers granted 68% of the requests for additional contracting from mental healthcare institutions. Only 36% of the requests for additional contracting from independent mental healthcare providers were honoured. It often takes one to three months, and sometimes even longer, for a request for additional contracting to be processed. A care provider is faced with financial uncertainty during that period. One health insurer reported to the NZa that it was still busy processing requests for additional contracting for 2021. According to NZa, the processing time for additional contracting requests has not or has barely decreased in recent years. If the care provider continues to provide care and the ceiling is exceeded, the health insurer cashes in, because that care is not reimbursed, or is reimbursed at a significantly reduced rate. In sum, without effective enforcement of the duty of care by the NZa, there is no incentive for health insurers to speed up the additional contracting process.
Double standards applied by the NZa
The pressure on healthcare providers to continue to provide care is often considerable, even if the turnover ceiling is about to be reached, or has already been reached. At the first mention of a ban on the admission of new patients, the NZa is often quick to say that it simply does not want to see this kind of issue being thrashed out over the heads of patients. In doing so, the NZa always tries to steer clear of one of its core task: the enforcement of the duty of care/healthcare procurement obligation. The NZa does this partly by arguing that healthcare providers and health insurers are in a civil-law relationship with each other and that their contracting disputes should not be settled at the NZa, but elsewhere, for instance at the Healthcare Contracting Dispute Resolution Authority. Remarkably, the NZa abandons this position as soon as health insurers complain about the healthcare procurement behaviour of health insurers: see this blog. In that case, the NZa (together with ACM) suddenly steps into the breach and certainly takes no half measures. The NZa imposed significant market power obligations on one mental healthcare provider, for instance. This equivocal approach is remarkable, because if the NZa consistently adhered to its self-declared role in healthcare procurement, it would have simply referred the insurer(s) to the civil courts or to the Healthcare Contracting Dispute Resolution Authority. Health insurers, with their deep pockets and large legal departments, are particularly well equipped to stand up for themselves there, if necessary.
NZa indirectly calls for compliance with duty of care
In 2021, the NZa also reported that additional contracting in the mental healthcare sector was often a laborious process. Since it was also leading to bans on the admission of new patients, the NZa obligated health insurers to state in their procurement policies by 1 April at the latest how they deal with requests for additional contracting. That was generally not the case before that time. As a result, in the vast majority of cases, healthcare providers did not know beforehand where they stood, and health insurers changed or expanded the rules on additional contracting in the interim with impunity. It is remarkable that the NZa now (finally) expressly states in the Monitor that additional contracting should be avoided where possible. The NZa writes, for instance: “In light of the amount of work that the process entails for both parties, it is worthwhile setting the turnover ceiling with great care, thus avoiding the need for additional contracting.” That is de facto a disguised request to comply with the duty of care. So is this an appropriate and sensible call on the part of the NZa?
NZa’s entreaty is foreseeably insufficient
The NZa’s entreaty to avoid additional contracting would appear to be a step in the right direction. But appearances can be deceptive: the question is whether the NZa’s entreaty will automatically have the desired effect. Mental healthcare providers have noticed for years that health insurers impose too low a turnover ceilings, as a result of which mental healthcare providers (and therefore also their patients) are sometimes faced with problems early in the year already. This often leads to bans on the admission of new patients and (ultimately) to more and longer waiting lists (see also here and here for our earlier blogs). Healthcare providers, including mental healthcare providers, have been complaining about this for years, but too low a turnover ceilings in mental healthcare remain the order of the day. The key question is whether the NZa has picked the right tool from its toolbox. It should obviously have asked itself how likely it is, in practice, that health insurers will actually comply with the NZa’s entreaty to set turnover ceilings “with great care”. The NZa is well aware of the answer to that question: that likelihood is nil. Without the NZa taking enforcement measures on the basis of the duty of care/healthcare procurement obligation, the financial incentive for the health insurer to do so is and will remain insufficient. It is definitely not the case that the NZa does not know this or could not have known this.
Rampant policy jungle proves that entreating will not suffice
For years, the NZa has been asking all health insurers to reduce the policy jungle (see here, for instance) – but without any effect. In fact, despite the NZa’s requests, the policy jungle is in fact increasing, according to the NZa. Also this year, the NZa found that the policy jungle has increased once again. So what does the NZa do? It asks health insurers to tone it down by telling them: “The NZa sets great store by a reduction of the number of almost identical policies.” The NZa has requested this politely – year after year – in vain. It is well aware that earlier requests have not been heeded and that the policy jungle has increased rather than decreased. Health insurers have seen in 2022 that they can successfully ignore the NZa’s wishes and allow the policy jungle to increase. The NZa knows (as does ACM) that the reason why health insurers adopt this attitude has to do with their dominant role, the fact that the competition is limited, no one makes a move until someone else does, and the NZa (or ACM) does not intervene in the policy jungle anyway.
A salient detail is that in 2017 a joint report on the policy jungle by ACM and the NZa found that the NZa had not yet enforced existing rules and suggested that the NZa could enforce those rules (or could do so more strictly) (see pp. 41 et seq.). Nevertheless, also in 2022, the NZa merely makes a polite request (and ACM does not intervene either). It is particularly striking that these regulators have known for years that the problem could be solved in less than six months if enforcement measures were taken: see here, here and here for our blogs. The NZa could have imposed sanctions in this area for 16 years already, for instance under Article 40 of the Wet marktordening gezondheidszorg (Healthcare (Market Regulation) Act).
We cannot avoid the impression that the NZa is adopting the same approach to the enforcement of the duty of care/healthcare procurement obligation as it has in respect of the policy jungle. The NZa has the authority to solve the problem in the short term, but is failing to do so. That is not only a problem for the healthcare system, but is also damaging the NZa’s and ACM’s credibility. ACM rigorously reviews healthcare mergers: they are critically examined and are often permitted only on certain conditions, or are even prohibited. One of the arguments given is that, in light of their duty of care, health insurers may not be confronted with healthcare providers that are too big. This may seem logical, but in a world where the duty of care is not enforced, a great deal can be said against it. ACM responded immediately this summer when the Minister of Health, Welfare and Sport refused to extend the lowered healthcare turnover thresholds as of 2023, arguing that that would be disastrous for the proper functioning of the healthcare system. Be that as it may, ACM has not taken any similar action for years on end regarding the enforcement of the duty of care by the NZa, even though it is well aware that (like the rampant policy jungle) it is disastrous for the proper functioning of the healthcare system and for competition between health insurers. In sum, credible ACM supervision in the healthcare sector also requires proactive enforcement of the duty of care by the NZa.
After more than 15 years, active enforcement of the NZa’s duty of care is required
In sum, if the NZa wants to avoid additional contracting (and to ensure compliance with the duty of care/healthcare procurement obligation), it will have to do more than merely appeal to healthcare insurers. And it can do so easily and quickly. If the NZa were to open a duty of care/healthcare procurement hotline, like the one that already exists for healthcare fraud, the NZa could immediately start enforcing the duty of care in a targeted manner. More information can be found in this blog. The NZa could also proactively enforce that, if turnover ceilings are being used, healthcare insurers meet the duty of care/healthcare procurement obligation. The NZa can quickly achieve more realistic turnover ceilings by obligating healthcare insurers to report to NZa annually, before the contracting process is finalised, (i) the expected demand for healthcare in a region and (ii) what proportion of that demand for healthcare will be met by the proposed healthcare procurement. The NZa could then check with mental healthcare providers (by means of spot checks) whether the health insurer’s answer is correct. The NZa could create a new regulation to record this working method. Article 45 of the Healthcare (Market Regulation) Act already allows the NZa to quickly draw up such a regulation. This way, the NZa could check whether health insurers will comply with their duty of care. The NZa has the necessary capacity. If it does not, that capacity could be freed up quickly by performing other tasks differently: see here and here.
What is the Ministry of Health, Welfare and Sport doing?
Non-compliance with the duty of care in the mental healthcare sector is becoming increasingly problematic. Parliamentary questions to Minister Helder for Long-Term Care and Sports raised the issue whether the duty of care is being breached, since some 80,000 people are on mental healthcare waiting lists. When four mental healthcare institutions closed their doors (partially) while it was unclear to patients whether they would still receive the right care, the Lower House also asked the Minister to explain. The latter then asked the NZa to investigate whether the current healthcare system was still functioning adequately. In the report that the NZa subsequently drew up, the NZa wrote: “The duty of care was not breached in the cases investigated, but we do identify a risk that things could have gone differently. Not every health insurer was equally pro-active in ensuring that every patient was properly reassigned.” Although the NZa therefore noted that health insurers were making mistakes, it also wrote: “Health insurers rely on the responsibility of healthcare providers for continuity of treatment for their insured.” The NZa appears to be insufficiently aware that healthcare providers cannot guarantee that continuity of treatment if they run up against too low a turnover ceilings, unilaterally imposed by the (dominant) health insurer (year after year). The same applies to Minister Helder. In an interview in July 2022, in response to the suggestion that turnover ceilings give rise to waiting lists, she reported that she had “not heard that the contracts have an inhibiting effect”. At the same time, Minister Helder reported on 11 August 2022, in response to Parliamentary questions: “Following the committee debate of 11 May 2022, I passed on to Zorgverzekeraars Nederland (ZN) and the NZa the signals I received from various MPs about the failure to raise turnover ceilings at certain (smaller) healthcare providers that provide care for which there are waiting lists. The contacts about these signals with ZN and NZa are still ongoing, because I believe it is important that these specific signals be examined carefully and in a broader context.”
This is a remarkable approach, since the Ministry of Health, Welfare and Sport knows that mental healthcare providers cannot provide, or continue to provide, sufficient timely care without appropriate compensation: providing care free of charge is just as impossible as offering free health insurance policies en masse. As explained above, the NZa’s appeal to health insurers to set turnover ceilings in the mental healthcare sector with due care would appear at first sight to be a noble entreaty. But given the track record of such NZa requests to health insurers, it is in actual fact a slap in the face of people who find themselves on a waiting list while nevertheless having to pay premiums to their health insurer every month. The Ministry of Health, Welfare and Sport knows that if the NZa – as apparent from its years of experience with the policy jungle – merely requests health insurers in 2022 to set the ceilings with due care, that is foreseeably insufficient. In order to actually eliminate waiting lists in mental healthcare, immediate and proactive NZa enforcement of the duty of care is required. It is high time that the Ministry of Health, Welfare and Sport also points out to the NZa that, until it starts to effectively monitor compliance with the duty of care, waiting lists in mental healthcare will unfortunately increase rather than decrease – as in the case of the policy jungle. Such enforcement is simply essential for the functioning of the current healthcare system.
Zorgvisie interviewed Diederik Schrijvershof about the NZa supervision on the duty of care of health insurance companies. The interview can be read here.
More information on the rights of healthcare providers and the obligations of health insurers can be found at zorgcontractering.com
Follow Maverick Advocaten on Twitter and LinkedIn
