The NZa (Dutch Healthcare Authority) reported on 2 March 2023 that fines are not a solution in its enforcement of health insurers’ duty of care/healthcare procurement duty. It had previously also dismissed our criticism about the lack of Nza enforcement of the duty of care/healthcare procurement duty. In this blog, we explain why that is not only disappointing, but also continues to send the wrong signal. We make three suggestions to the Nza to clean up its act, also in light of the Nza’s commitment to the IZA (‘Comprehensive Care Agreement’).
Persistent general consumer problem rather than individual problem
In response to our criticism, the NZa reported that it is “not a point of contact for individual complaints”. That is true: the NZa has a statutory duty (under Article 3(4) of the Wet marktordening gezondheidszorg (Health Care Market Regulation Act)) to act in the general interest of consumers in performing its tasks. For years now, the extent and persistence of the current waiting list problems in the mental health sector have pre-eminently not been an individual problem, but rather a general consumer problem. According to the NZa, some 41,000 vulnerable people have been waiting far too long for mental healthcare. The waiting list problems in the mental health sector are widespread and structural. That was the case before the start of the corona crisis already. The NZa should therefore have acted in the general consumer interest a long time ago already. Instead, it is blaming others or opting for a leap forward. First, by raising the question whether patients on the waiting lists may have been counted twice and referring those patients to the SKGZ (‘Health Insurance Complaints and Disputes Board’). And recently by drawing attention to job market problems. The chair of the NZa board recently reiterated that latter argument. There are no indications that the NZa itself will now take action. On the contrary: health insurers can read in Zorgvisie that, in light of that labour market problem, they have nothing to fear of the NZa with regard to their duty of care/healthcare procurement duty.
NZa is well aware that SKGZ offers no solution for 60,000 waiting patients
The NZa has referred patients on mental healthcare waiting lists to the SKGZ. But precisely that target group cannot be expected to contact the SKGZ in a mentally fragile state to demand treatment. SKGZ proceedings take so much time that they do not offer an appropriate solution. Moreover, an SKGZ ruling does not solve the general consumer problem. There are now 60,000 patients on the mental healthcare waiting lists, 41,000 of whom have been waiting longer than the Treek standard (the standard set in 2005 for acceptable healthcare waiting lists). The SKGZ lacks the capacity to handle all these complaints within a reasonable period. In sum, the NZa is turning away mental healthcare patients who have to wait too long by arguing that it is not a point of contact for individual complaints. That is incongruous when the NZa itself has been reporting numbers of waiting patients for years that point directly to a persistent general consumer problem.
NZa passing the buck to unauthorised party
The NZa is also arguing that patients may turn to the Geschillencommissie Zorg (‘Healthcare Disputes Committee’) or the courts. But the Healthcare Disputes Committee does not handle complaints from patients about health insurers (only about healthcare providers). If the duty of care/healthcare procurement duty has been breached, it is the health insurers that should be held liable. Moreover, as in the case of the SKGZ, mentally vulnerable patients cannot be expected to find their way to court en masse – apart from the question whether they can afford to obtain the necessary legal assistance in time. In sum, the NZa should not pass the buck regarding its legal duty to enforce the duty of care/healthcare procurement duty in particular in the case of the mental health group of patients to other authorities, such as the SKGZ, the Healthcare Disputes Committee, or the courts.
Additional contracting?
The NZa has also noted that health insurers “always have the option of contracting additional care.” It is remarkable that the NZa itself found in the Mental Healthcare Procurement Monitor 2022 already (as in previous years) that additional contracting is a laborious and time-consuming process for both healthcare providers and insurers. There is good reason why the NZa called on health insurers to set turnover ceilings with due care, in order to limit additional contracting. In sum, additional contracting has been demonstrably insufficient to solve the waiting list problem for years already.
No fines for health insurers for breach of duty of care
In August 2022, the NZa responded to our criticism by stating that it did fine health insurers. The NZa failed to mention that the few fines it had imposed on insurers related only to breaches of the Healthcare Procurement Regulations, not to breaches of the duty of care. What the NZa also failed to mention is that those few fines are so low that they did not prevent health insurers from slipping up in 2022/23 again (see, for instance here for VGZ and here for ZK).
It is also not the case that the NZa cannot impose sanctions with regard to the duty of care, for instance in the form of (high) penalties. It is remarkable, however, that healthcare providers are fined faster, more often and proportionally more heavily by the NZa than healthcare insurers (see here). The NZa suddenly reported in March 2023 that it could not impose fines for breaches of the duty of care. That is not entirely correct, however: the NZa is authorised to impose an order, an order subject to a penalty, or an administrative enforcement order. And a forfeited penalty has the same financial effect as a fine, and is often successful. The crux of the problem is that the NZa has left these instruments unused for years.
No appeal to legislature for greater powers
If enforcement powers regarding the duty of care/healthcare procurement duty were a problem, then why has the NZa not asked the legislature for more powers since its establishment (in 2015)? The NZa did make such a call for enforcement of the Healthcare Governance Code. It did not also make the call to be allowed to enforce the Healthcare Insurance Code of Conduct at the time. All of this sends the wrong signal.
NZa and health insurers saw labour market problems coming
The NZa believes that enforcement of the obligation of result of health insurers to procure sufficient care “will not be successful”: if the cause is a shortage of healthcare professionals, “it’s beyond an insurer's control”. This is an untenable argument, since the NZa states in its own guidance on the duty of care: “The obligation to provide care (in kind) or to reimburse it (refund) is what is known as an ‘obligation of result’ [...]. If a health insurer cannot fulfil its duty of care despite maximum efforts, and can demonstrate this, it may invoke force majeure.”
The current tight labour market in the mental health sector certainly does not constitute an unforeseen event of force majeure: the tightness on the labour market was predicted years ago already and the NZa requires of health insurers that they identify short-term, medium-term and long-term supply problems. Insurers have not necessarily made maximum efforts, however. The NZa has found, for instance, that waiting lists in mental health (among other sectors) are too long and has called on health insurers to take the initiative to draw up a regional plan. The regional plan must identity the current and future bottlenecks in the demand for care. The NZa should therefore have been asking health insurers for years already to keep looking ahead, especially with regard to labour market problems in the mental health sector. Health insurers know that care professionals are crucial in delivering mental health care. The argument that health insurers are “unable” to tackle waiting times because of labour market problems cuts no ice and is at odds with what the NZa Guidance on the Duty of Care aims to achieve.
Moreover, insurers and the NZa are well aware that there are indeed mental health providers with unused capacity that are able and willing to provide (and continue to provide) more mental healthcare. They are prevented from doing so by inadequate ceilings imposed by insurers.
NZa hotline is Catch-22
To top it all off, the NZa referred the 60,000 patients on the waiting list to its own hotline. Patients who contact that hotline get the short end of the stick, since the NZa refers them back to the health insurers on its hotline. And health insurers can read in Zorgvisie that the NZa does not enforce the duty of care by imposing sanctions. Despite our call for the NZa to set up an adequate NZa duty-of-care hotline, the NZa is therefore perpetuating a vicious circle.
In light of the duration and scale of the waiting list problem, the NZa has no other option than to break that circle as soon as possible. This is essential not only for patients on waiting lists in the mental health system, but also to relieve mental health providers and GPs. The latter is crucial to the success of the IZA; the NZa called on all the parties to sign that agreement in 2022. So what should the NZa do? Numerous actions are conceivable. We will suggest only three below.
NZa: exercise your powers
The NZa has ample powers to enforce the duty of care quickly and effectively. Bearing those powers in mind, we make the following suggestions:
- Health insurers are obligated to state in their procurement policies how they make concrete agreements in their contracts on their financial and other contributions to help solve labour market problems among mental healthcare providers.
- If there are people on the mental healthcare waiting list in a region for longer than the Treek standards, health insurers may not impose any turnover or other ceilings in contracts on mental healthcare providers in those regions that provide the mental healthcare in question. This prevents time-consuming additional contracting processes and discussions, and greater duty-of-care problems.
- Mental healthcare clinics may be closed down, downsized or phased out only after (i) all health insurers that have or wish to have a contract with that clinic have demonstrated to the NZa that the patients (or potential patients) involved can receive (or continue to receive) the mental healthcare that they need in the region well within the Treek standard; and (ii) the NZa has heard the stakeholders (including MIND) on this point.
The health insurers’ obligation of result to purchase sufficient mental healthcare in a timely manner forms a basis for point 3. Contracted mental healthcare providers usually have to notify health insurers beforehand of any closure, significant downsizing or phasing out of a clinic. Based on their statutory obligation of result and their regional plans, among other things, insurers must ensure that their duty of care/procurement duty is not compromised. If it is, the insurer must quickly negotiate with the mental healthcare provider in order to meet its duty of care/procurement duty. This approach prevents unsatisfactory outcomes, such as the NZa Key Themes Analysis, in which the NZa (i) reported that the duty of care had not been violated, while pointing to the IGJ (Health and Youth Care Inspectorate) to investigate whether mental healthcare patients are still receiving adequate care; and (ii) at the same time noted that health insurers should have adopted a more proactive approach.
Points 1 and 2 can easily and quickly be recorded in a binding NZa regulation under Article 45 of the Wet marktordening gezondheidszorg or Wmg (Healthcare Market Regulation Act). Violation of such binding NZa rules can be sanctioned in the form of (high) fines. Points 1 to 3 do not require a separate legislative process and the approval of the Upper House of Parliament. But they do require active enforcement of the duty of care/procurement duty by the NZa. The NZa is not only authorised to do so, but has been able to do so for many years. The NZa’s comment that 40% of its capacity is already being devoted to “issues related to keeping care accessible” is remarkable to say the least, in light of its outcome for patients on the mental health care waiting lists. If the NZa is struggling with a capacity deficit to ensure effective enforcement of the duty of care/procurement duty, a solution would be to finally abolish the care-specific merger test after roughly ten years. If that superfluous test were abolished, that would not be the end of the world. At the same time, the NZa’s lifeline in the form of enforcement of the duty of care/procurement duty is crucial for the 60,000 patients on waiting lists in the mental health system, for the proper functioning of the mental health system, for all GPs and for the success of the IZA.
This blog was published in two parts in Zorgvisie. The first part of the blog can be read here. The second part of the blog can be read here.
More information on the rights of healthcare providers and the duties of healthcare insurers can be found at www.zorgcontractering.com
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