Diederik Schrijvershof, Leah Peeters and Annabel Kingma have successfully litigated on behalf of nine primary diagnostic care providers against Zilveren Kruis primary diagnostic care procurement policy for 2024 and 2025. Seven healthcare providers, Star-SHL, Maasstad Ziekenhuis, Franciscus Gasthuis & Vlietland, IJsselland Ziekenhuis, Ikazia Ziekenhuis, Het Van Weel-Bethesda Ziekenhuis and Spijkenisse Medisch Centrum (collectively “Rijnmond Lab”), went to court in July 2023. Certe and Reinier Haga Medisch Diagnostisch Centrum later joined the proceedings. The primary diagnostic care providers disagreed with ZK’s selective procurement plans, in which ZK allegedly violated the lntegraal Zorgakkoord (Integral Healthcare Agreement; the IZA).
ZK had not passed on the government contribution to the labour cost development in the reference rates. That government contribution is intended to enable healthcare employers to offer market-based employment conditions. The IZA explicitly provided that health insurers must pass on the government contribution “in full – and without any discount – in their prices and contracts. Generic efficiency discounts on these funds do not play a part. These agreements also apply to the regulated segments.”
ZK nevertheless refused to factor the government contribution into the primary diagnostics rates for 2024 and 2025. The District Court of The Hague agreed with the primary diagnostic care providers in preliminary relief proceedings that this practice is wrongful. The court noted that Zorgverzekeraars Nederland (ZN) had signed the IZA. According to the court, the primary diagnostic care providers rightly assumed that health insurers, and therefore also ZK, are bound by the IZA and would implement it correctly. The government contribution cannot be regarded merely as a “starting point in the negotiations”, as ZK argued.
ZK relied on the fact that it could not be obligated to factor the government contribution into the reference rates, because that would allegedly be in violation of competition law. The court made short work of this defence, because health insurers may still require of bidders that they offer a discount on the reference rates. Competition among them thus remains guaranteed.
The court also valued the fact that the Ministry of Health, Welfare and Sport (the Ministry) itself signed the IZA. Both before and after the IZA was signed, questions were presented to the Ministry about the (competition-law) permissibility of the government contribution provision. The Ministry signed the IZA without any objection. The primary diagnostic care providers were therefore justified in trusting that health insurers would factor the government contribution into the reference rates. The court therefore ruled in favour of the primary diagnostic care providers. It ordered ZK to factor the government contribution into the 2024 and 2025 primary diagnostics reference rates for all primary diagnostic care providers (not just the claimants in this case).
Maverick Advocaten had previously successfully conducted preliminary relief proceedings on behalf of seven mental healthcare providers against CZ Zorgkantoor (see also here). CZ Zorgkantoor was planning an abrupt switch from modular to integral financing. That switch would increase the administrative burden for healthcare providers. Also in this case, the District Court of The Hague ruled in preliminary relief proceedings that the care administration office’s procedure was inconsistent with the government contribution, because the aim of that contribution is to reduce the administrative burden.
Maverick Advocaten assists healthcare providers on a daily basis to achieve cost-covering healthcare rates or to challenge inadequate turnover and other caps. It is litigating, for instance, on behalf of providers of forensic mental healthcare against the NZa 2023 and 2024 Mental Healthcare and Forensic Care Rates Decision. Maverick Advocaten is also litigating on behalf of De Bevlogen Huisartsen, a foundation, and 129 individual GPs against the NZa’s 2023 GP Care Rates Decision. Previously, Maverick Advocaten achieved successes in preliminary relief proceedings for healthcare providers in the procurement of, among other things, GP care, acute mental healthcare (here and here), forensic care, youth care, SGLVG (Serious Behavioural Problems and Mild Intellectual Disability) care, long-term care (also on appeal) and care under the Social Support Act (see also here). Maverick Advocaten also challenges excessive market power of health insurers: see also here.
More information on the healthcare procurement duty/duty of care and its enforcement is provided in this blog, this blog and this interview in Zorgvisie. More information on the rights of healthcare providers in healthcare sales and the possibilities for their industry associations to support them in this regard can be found at www.zorgcontractering.com
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