The Dutch Healthcare Authority (“NZa”) and the Netherlands Authority for Consumers and Markets (“ACM”) have kept themselves busy these past few months. They have published their joint investigation of competition between healthcare insurers. The NZa investigated the waiting times in the healthcare sector, including (youth) mental healthcare, and the NZa is now actively monitoring the developments. An evaluation of the Transparency Regulations regarding Rules on Transparency of the Healthcare Purchasing Process under the Healthcare Insurance Act (the “Healthcare Purchasing Rules”) is also imminent. Other developments in the pipeline are addressed below.
On 12 June 2017, subject to certain commitments, ACM approved the merger between Parnassia Groep and Antes. Those two mental healthcare institutions offered ACM remedies in order to get the go-ahead. They disposed of several divisions to GGZ Delfland. This merger proves that it is possible to obtain ACM’s approval of a merger even if the companies involved have large combined market shares, also after ACM prohibited a merger between hospitals in Dordrecht. ACM also approved the merger between the Academisch Medisch Centrum and the VU Medisch Centrum.
NZa and ACM healthcare merger test
Healthcare merger tests will continue to involve duplication of work for the time being. Most acquisitions, mergers and joint ventures in the healthcare sector must first be reported to the NZa due to the mandatory healthcare merger test. Parties must subsequently also be notify the merger to ACM if the reduced turnover thresholds are met, with a view to the merger control under the Competition Act. The legislative proposal whereby the NZa’s healthcare merger test is transferred to ACM has been declared ‘controversial’ (in light of the formation of a new Dutch government certain pending proposals have been labelled ‘controversial’, meaning further action is postponed until after the new government is in office). In any event, it remains to be seen whether that legislative proposal will enter into force on 1 January 2018, since it has not yet been adopted by the Senate. In our response to the proposal (see here and here) we argued in favour of abolishing rather than transferring the separate NZa healthcare merger test. The Ministry of Economic Affairs also wishes to maintain the reduced turnover thresholds for mergers in the healthcare sector these coming years. This means that transactions that clearly do not restrict competition in the healthcare sector must nevertheless still be reported to ACM, merely because the reduced turnover thresholds are quite easily met. We previously explained that it need not be this way in this blog and in our response to the consultation on the decision regarding lower turnover thresholds for mergers in the healthcare sector.
Joint healthcare sales and healthcare purchasing
At the end of June 2017 ACM reported in this informal view that homecare organisations could regionally procure acute homecare and could sell it bundled to healthcare insurers. At ACM’s request the healthcare providers changed their plans in such a way that the benefits of the proposed joint healthcare sale outweigh the possible competition risks. In a different case, ACM considered it premature to provide an informal view regarding an initiative of healthcare insurer Zilveren Kruis to jointly purchase prostate cancer care together with other healthcare insurers. ACM had previously criticised the centralisation by insurers of complex urgent hospital care and the establishment of a single proton centre. Despite the fact that ACM reported in its 2016-2017 agenda that it offers room for cooperation in the healthcare sector, it is by no means certain that it will approve all types of cooperation. Health providers and insurers must both have done their homework in order for their cooperation to be given the go-ahead.
NZa’s supervision of the contracting process
Since 2016 the NZa has supervised the healthcare purchasing process by means of the NZa Healthcare Purchasing Rules. In 2016 the NZa found that healthcare insurer Menzis had acted in breach of those regulations. The NZa is furthermore investigating breach of those rules by another healthcare insurer. This summer trade associations of healthcare providers provided the NZa with specific amendments to the Healthcare Purchasing Rules, after arguing in 2015 already in favour of more specific mandatory rules that insurers must observe in healthcare purchasing. The NZa has now published draft amendments to the Healthcare Procurement Regulations and has given the parties until 20 September 2017 to respond. Together with ACM, the NZa recently found that also in 2017 a specific healthcare insurer was overrepresented in several regions and that the competition between insurers could be improved. For these and other reasons it is likely that the Healthcare Purchasing Rules that will enter into force on 1 January 2018 will be tightened. In addition to the Healthcare Purchasing Rules, the duty of care of healthcare insurers also applies in full. Minister of Health, Welfare and Sport Schippers recently emphasised, for instance, that the new medical devices agreements between patients, healthcare providers and insurers (Medical Devices Administrative Consultation) forms part of the duty of care that the NZa will supervise.
NZa supervision of waiting times
Healthcare insurers and healthcare administration offices that purchase insufficient healthcare (and do not provide that care themselves) may be in breach of their duty of care. To date, the NZa has not imposed any sanctions in that regard on any healthcare insurer or healthcare administration office. But that does not mean that the duty of care has never been breached. There are many indications of unacceptable waiting times in mental healthcare, long-term care and specialist care. The NZa has stated that it is taking action now. It expects healthcare insurers and healthcare providers to act jointly to reduce waiting times. Minister of Health, Welfare and Sport Schippers was not willing to wait and has agreed with the mental healthcare sector that the parties will make every effort to ensure that the waiting times meet the Treek standards within a period of one year. It is remarkable that, although the Treek standards are not being met, the NZa has not yet taken enforcement measures against healthcare insurers on the grounds of breach of their duty of care. Healthcare providers themselves can also take action if inadequate healthcare is being purchased. The Supreme Court in VGZ/Nutricia as well as the Trade and Industry Appeals Tribunal in VPH/NZa have confirmed that in certain circumstances also healthcare providers can rely on the duty of care (see this blog).
Is ZN regarded by its members as a cartel? Will ACM take action?
Two things stand out in the ACM/NZa report Ruimte voor concurentie tussen zorgverzekeraars(Room for competition among healthcare insurers). First, although this 93‑page report also concludes that healthcare insurers hold regionally strong positions in 2017, the term “purchasing power of healthcare insurers” cannot be found in the report. Secondly, the report states that, according to members of the association of healthcare insurers Zorgverzekeraars Nederland (“ZN”), their actions are restricted by ZN. Healthcare insurer DSW previously sent the same message, but it is now apparent from the report (p. 92) that several healthcare insurers have voiced similar concerns with ACM/NZa. Despite this outpouring by members of ZN, ACM has not taken any action and has merely drawn attention to the freedom that NZ must give its members on the grounds of the cartel prohibition. The complexity and lack of transparency on the insurance market is the subject of an investigation by ACM and NZa, which have announced that their report on that subject will be presented later this year. In the meantime, NZa has stated that it is aiming for increased supervision on healthcare insurers and the provision of information by healthcare insurers to consumers, also outside the periods that are available to consumers for switching between healthcare insurers.