The 2022 healthcare contracting process is well underway. The extent to which various types of care are reimbursed may differ considerably from one healthcare insurer to the next. During the switching season in particular, it can be important for healthcare providers to draw consumers’ attention to those differences. What information on healthcare insurers can a healthcare provider communicate to consumers? In this blog we explain what is and is not allowed, and what healthcare providers should bear in mind. We also explain what rules healthcare insurers must observe when they provide information on healthcare insurance policies, healthcare turnover ceilings and the reimbursement of contracted and non-contracted healthcare. The Dutch Healthcare Authority (“NZa”) supervises compliance with all these rules; the role it plays is therefore also addressed below.
Dos and don’ts in informing clients
In the Regeling transparantie zorgaanbieders (Healthcare Providers Transparency Regulations), the NZa has set further rules on the information that healthcare providers may provide to consumers. The main objective of the Healthcare Providers Transparency Regulations is to enable insured persons to make an informed choice as to whether or not they wish to purchase care from a certain provider. If not all healthcare insurers reimburse the same care, providers often wish to inform their (returning) customers accordingly or to be able to answer their questions. Healthcare providers are allowed to provide objective and factual information about the care they provide. They may also share current, objective information on healthcare insurers with consumers. Consumers may not be misled in the process.
But where should the line be drawn in the provision of information by providers to consumers? The NZa has previously threatened (see here) to impose fines on healthcare providers that misinformed consumers. Following reports of alleged deception by healthcare providers, the NZa advised policyholders to consult their healthcare insurers about the conditions they apply. In doing so, the NZa appears to suggest that healthcare providers should refrain from providing any information whatsoever to their patients about healthcare insurers and the services they provide. That is not the case: healthcare providers may provide consumers with objective and factual information. And that is often necessary, if only because consumers request (and have the right to request) such information. Healthcare providers are therefore not subject to a blanket ban on the provision of healthcare insurance information. If a healthcare provider informs consumers in an objective and factually correct manner about the healthcare insurers with which it does or does not have a contract, that is of course permitted. The same applies to the sharing of correct information about certain differences in (effective) reimbursement of care by healthcare insurers at the healthcare provider in question and to the use of healthcare turnover ceilings by the healthcare insurers. A healthcare provider may also state whether a personal contribution is due for certain care, since that is objective information that should be directly apparent from the (public) policy conditions of healthcare insurers.
Administrative court confirms: a healthcare provider may not mislead consumers about its own care services or those of a healthcare insurer
The NZa may impose fines on a healthcare provider only in the event of misleading information on its own care services or those of an insurer. In 2019, the NZa imposed a fine on Wijkverpleging Nederland B.V. (“WVNL”). The Rotterdam Court recently ruled that that fine had rightly been imposed by the NZa. WVNL informed its clients that it had arranged for “collective health insurance” at ONVZ. WVNL promised its clients a monthly discount of EUR 53.10 on the premium if they switched to ONVZ. WVNL urged patients who were insured at one specific healthcare insurer to switch to ONVZ. WVNL did not have a contract with that specific healthcare insurer. That insurer urged its patients to purchase care only from a competitor of WVNL, because that provider did have a contract with that insurer. By making its offer, WVNL wished to prevent clients from actually purchasing care from those contracted providers by granting a discount on ONVZ’s (higher) premium. WVNL also claimed that ONVZ would always reimburse all care.
The NZa fined WVNL for providing incorrect information that misleads consumers (Article 39 of the Wet marktordening gezondheidszorg (the Healthcare (Market Regulation) Act): WVNL tried to convince its clients to switch to ONVZ by making them the promise of a “group offer”. Under Article 18 of the Zorgverzekeringswet (Healthcare Insurance Act), group health insurance is an agreement between an employer and a health insurer. That was not the case here in the NZa’s opinion. The information that ONVZ “always reimburses all care” was also incorrect, according to the NZa: it gives an incorrect impression of ONVZ’s healthcare and misleads consumers. The court dismissed WVNL’s appeal and upheld the fine imposed on it by the NZa. The court confirmed that it follows from Article 39 of the Healthcare (Market Regulation) Act that a healthcare provider may not provide incorrect or misleading information about its own care services, but also not about the products of healthcare insurers.
Preliminary relief judge: Apotheek Regenboog did not mislead clients about VGZ
Not all statements by healthcare providers about healthcare insurers are actually misleading. That is apparent, for instance, from the ruling issued by the preliminary relief judge of the Court of Noord-Holland in the case of Apotheek Regenboog. The court assessed on the basis of the Healthcare Providers Transparency Regulations to what extent Apotheek Regenboog had made unlawful statements, in a dispute between Apotheek Regenboog and VGZ. The court found that Apotheek Regenboog had (for the greater part) not made incorrect and misleading statements about VGZ regarding tapering medication, among other things. In that context Apotheek Regenboog provided consumers, for instance, with an overview of the differences between contracted and non-contracted care, but did not specifically recommend one of the healthcare insurance policies. The court did find, however, that Apotheek Regenboog was not allowed to distribute personal data of employees of VGZ among its patients. This example demonstrates that a healthcare provider may have reason (and the right) to inform consumers about certain reimbursement of care by healthcare insurers.
NZa Regulations on the Provision of Information by Healthcare Insurers
Not only healthcare providers are prohibited from misleading consumers: the same applies to healthcare insurers. Article 40 of the Healthcare Insurance Act, for instance, provides that healthcare insurers may not provide misleading information about the policies and the care that they offer. Healthcare insurers must therefore ensure that the list of contracted providers (that can be found on the insurers’ websites) is up to date. That is a requirement under Article 14 of the Regulations on the Provision of Information by Healthcare Insurers to Consumers. Those regulations are likely to be revised by the NZa in the spring of 2022. Providing an (online) overview of current contracted care is of great importance not only to consumers, who must know where they stand, but also to healthcare providers, once they have entered into a contract and wish to inform (potential) insured persons accordingly. If a healthcare provider’s website incorrectly lists a healthcare provider as non-contracted, that may be detrimental to both the consumer and the healthcare provider in question. Healthcare insurers must furthermore make the contracted care services known in good time. That is not always the case in practice, according to the NZa.
Policy jungle
Healthcare insurers must also ensure that they clearly identify and list the care services that they provide. The NZa previously wrote to the Minister of Health, Welfare and Sport (the “Minister”) that healthcare insurers must make it easier for consumers to select a suitable healthcare policy. The NZa has identified a further increase in the number of policies on offer in 2021. It considers this “policy jungle” undesirable, because it makes the policies on offer less transparent. That might be otherwise if the policies actually lead to more choice for consumers, but that is not always the case, since most of the policies of a group of insurers are very similar. In 2021, the number of budget policies in particular increased. In the NZa’s opinion, information on healthcare insurance policies should also be more standardised. See here, here and here for our previous blogs on the policy jungle and the lack of enforcement in that regard.
Healthcare insurers must be (more) transparent about healthcare turnover ceilings
Healthcare insurers must furthermore ensure that they provide correct information on healthcare turnover ceilings. This follows from Article 15 of the Regulations on the Provision of Information by Healthcare Insurers. The NZa reported that that is also not always the case. The NZa informed the Minister, for instance, that at least one healthcare insurer did not list current turnover ceilings on its website, despite the fact that information on whether a healthcare insurer applies turnover ceilings to healthcare providers is of great importance to insured persons when selecting a healthcare insurance policy, since the consumer’s choice may be limited when a ceiling is reached.
NZa enforcement action against misleading healthcare insurers
If a healthcare insurer provides incorrect or misleading information, a trade association of healthcare providers, an individual healthcare provider, a consumer or a patients’ association may send a signal or submit an enforcement request to the NZa. The Regulations on the Provision of Information by Healthcare Insurers primarily govern the relationship between healthcare insurers and consumers. But the mandatory NZa rules also apply to the relationship with the healthcare provider: if the healthcare insurer provides incorrect information about a healthcare provider to an insured person, the latter is also adversely affected. Although the NZa will not be easily inclined to designate healthcare providers as interested parties under the Regulations on the Provision of Information by Healthcare Insurers, it may be useful for a healthcare provider to send a signal or submit an enforcement request to the NZa. One healthcare insurer previously changed the healthcare finder on its website after healthcare providers submitted an enforcement request to the NZa.
The NZa is also free to take action in response to a signal from the field, since it does the same when it receives signals from healthcare insurers regarding a healthcare provider, as apparent from the NZa’s actions in the SMP decision regarding Emergis. In its healthcare purchasing supervision, the NZa also regularly takes action against healthcare insurers in response to enforcement requests from providers; see also this blog. The NZa may of course also take action of its own accord, without receiving such signals, if healthcare insurers provide misleading information on healthcare providers, their policies and the actual reimbursement they provide.
Although the impression in the field is still that the NZa wishes to focus in particular on the enforcement of rules in relation to healthcare providers, that approach is no longer sustainable, in light of the NZa’s findings last year. We also expect that the NZa’s proposed revision of the Regulations on the Provision of Information by Healthcare Insurers will offer the NZa more tools to effectively supervise healthcare insurers.
More information and tips on healthcare sales can be found at www.zorgcontractering.com.
