Duty of care/procurement duty, waiting lists and catch-up care: the enforcement ball is in the NZa’s court

In recent years, the Dutch Healthcare Authority (“NZa”) has paid a great deal of attention to the duty of care. The duty of care means that health insurers and care administration offices must ensure that their insured receive the care to which they are entitled under their (basic) insurance, in good time and within reasonable travel time. This is set out in Article 11 of the Zorgverzekeringswet (Health Insurance Act) and in Articles 4.2.1 and 4.2.2 of the Wet langdurige zorg (Long-Term Care Act). In fulfilling their duty of care, health insurers and care administration offices must guarantee the quality, accessibility and affordability of the care. The duty of care is de facto a healthcare procurement duty that rests exclusively on the health insurers and care administration offices (and therefore not on healthcare providers). The NZa supervises correct compliance with the duty of care by health insurers (see also here, here, here and here). The NZa also supervises the process in which health insurers fulfil their duty of care by purchasing care from healthcare providers (see here and here). The NZa furthermore supervises compliance with the duty of care by care administration offices. Care administration offices have a 100% regional purchasing market share and all of them have Significant Market Power (“SMP”). Care administration offices therefore hold a very dominant position in relation to healthcare providers (see also here). In the Regulations on Transparency in the Contracting Process under the Long-Term Care Act, the NZa has set out rules that care administration offices must observe during the contracting process.

NZa defines duty of care for health insurers and care administration offices

In 2020 and 2021, the NZa published guidelines for the implementation of the duty of care for both health insurers and care administration offices. In those guidelines, the NZa explains in specific terms what steps health insurers and care administration offices must take to ensure that:

  1. insured persons receive the care they need in a timely manner;
  2. the continuity of the care is guaranteed;
  3. complex requests for care are answered;
  4. care is made future-proof;
  5. the most adequate action possible is taken during a catastrophe; and
  6. the guidelines also make it clear to care administration offices how they should safeguard the quality of the care.

It therefore cannot possibly be argued that the duty of care is an unclear or abstract concept. The NZa has explained in the guidelines, on the basis of numerous practical examples, how health insurers and care administration offices should act. If health insurers and care administration offices violate (or continue to violate) their duty of care despite the NZa's guidelines, the NZa has a general duty to take enforcement action.

NZa investigated duty of care and additional contracting

On that ground the NZa launched a three-year study in 2018 to investigate how health insurers deal with long waiting lists in specialist medical care, mental healthcare and district nursing. In 2021, the NZa furthermore found that at some health insurers the additional contracting process was not yet up to standard. According to the NZa, care administration offices should have a clearer picture of which groups of clients are receiving insufficient care. In early 2021, the NZa informed health insurers and care administration offices of how the NZa dealt with the duty of care during the scaling-down of care as a result of the corona pandemic. The NZa has not yet stated its views on the fulfilment of the duty of care during the current phase of the corona pandemic. Be that as it may, in light of its previously published guidelines, the NZa has already clearly explained what exactly it expects of health insurers and care administration offices regarding the fulfilling of their duty of care.

Post-COVID catch-up care: work to be done in the care sector

Many treatments have been postponed as a result of the corona pandemic. In the coming period, the focus in specialist medical care will be on catch-up care and the elimination of waiting lists. At the request of the Ministry of Health, Welfare and Sport (the “Ministry”), the NZa has drawn up a framework outlining what is needed to initiate medical specialist catch-up care. Healthcare providers must be transparent about waiting times on their websites, for instance. Hospitals must also provide the NZa with information on the pressure on the care sector and on the available capacity. The vast majority of hospitals have reported their waiting times. NZa Director of Supervision and Enforcement Karina Raaijmakers recently emphasised that it must be clearer to patients that they may sometimes be treated sooner at a hospital other than their usual one. Health insurers obviously play an important role in this regard. They must quickly help patients who have been waiting too long for care find a provider (a hospital or independent treatment centre (“ITC”)) that has more capacity. Waiting lists can be shortened, for instance, if ITCs take over part of the catch-up care. Health insurers in any event play a crucial (coordinating) role in safeguarding the accessibility of catch-up and regular care. They must ensure that their insured, as patients, can obtain suitable care in good time. They must take timely action so that patients can receive care elsewhere, if necessary. Health insurers must also provide financial assistance to healthcare providers such as hospitals and ITCs in order to scale up the care. That is not always the case in practice, as became apparent when the contracting process for 2022 proved to be an arduous affair for many hospitals (see also here). Hospitals found that health insurers provided insufficient funds for catch-up care, despite health insurer Zilveren Kruis reporting in 2021 that its financial buffers had increased as result of a great deal of “costly” regular care having to make way for the treatment of corona patients. Health insurers also stated that they wished to leave the catch-up care to hospitals where possible, rather than to ITCs. NZa Director of Supervision and Enforcement Karina Raaijmakers said on this subject: “If solving these bottlenecks [caused by the delayed care] means that more ITCs must be engaged, then health insurers must simply do so and pay for it.”

Ball now in NZa’s court: enforce the duty of care

These past two years the NZa has been busy reporting on the impact of the corona pandemic, on request and on its own initiative (see, for instance, here and here). That is of course an important task. The pandemic now appears to be subsiding, but the demand for catch-up and regular care is increasing rapidly. The ball is therefore now in the NZa’s court also on another front. More than ever, it is up to the NZa to specifically and proactively verify that health insurers have actually purchased sufficient care and that waiting lists are being effectively eliminated. The NZa must also ensure that insured persons receive appropriate care and do not have to travel too far, also for catch-up care: also according to the NZa, appropriate care and the proximity of that care are an essential aspect of the duty of care. The NZa has all the necessary tools at its disposal to effectively supervise health insurers. Healthcare providers, such as hospitals, are already providing the NZa with data on the available capacity. The NZa may also request information from health insurers (see Articles 25, 61 and 62 of the Healthcare (Market Regulation) Act). Although the NZa recently reported that it had drawn up a “plan to make up for delayed care”, together with healthcare providers and health insurers, merely making plans does not suffice. And it is unclear what that plan amounts to, since the NZa has not published it.

Effective supervision of the duty of care by the NZa is not only urgently required in the field of medical specialist care: GP care, for instance, is also under pressure, and there are bottlenecks in the care for the elderly and in district nursing. It is also important to ensure that health insurers take timely action to prevent deterioration of healthcare in rural areas. Long-term care providers are also having to deal with the consequences of the corona pandemic. At present the continuously high rate of sickness absence in particular appears to be putting pressure on the ability of long-term care providers to continue to provide good care. In its guidelines for care administration offices, the NZa expressly notes that, in light of the shortage of healthcare workers with long-term care expertise, care administration offices must go in search of creative and innovative means of ensuring that long-term care remains sound, accessible and affordable. In sum, care administration offices will have to work hard to fulfil their duty of care. Simply arguing that “there has been and still is a COVID-19 crisis” cuts no ice.

Moment of truth for the NZa

The duty of care is an essential aspect of the Dutch healthcare system and is under pressure, partly due to the consequences of the COVID-19 crisis. When health insurers violate or undermine the duty of care (for a long period), policyholders, their relatives and their employers are directly affected. Insured persons then do not receive the (timely) care to which they are entitled by law and for which they have paid the health insurer a mandatory health insurance premium (also during the corona pandemic). It is harmful not only to the insured but also to the economy if they are unable to work, or to work to their full capacity, due to illness. The force majeure situation during the first peak(s) of the corona crisis is no longer a reason for failing to properly fulfil the duty of care. The Netherlands Authority for Consumers & Markets (“ACM”) also established in early 2022 that health insurers and hospitals are returning to the individual agreements as a basis for the distribution of care funds. The NZa took important steps to give concrete form to the duty of care of health insurers and care administration offices. Now it‘s time for the NZa to take the next step. Without effective enforcement, the duty of care will remain a sham, despite all the tools available to health insurers.

Hotline: NZa’s duty of care

The NZa’s attempts to come up with a plan together with the field is a good development. But in a great many cases the duty of care is already under pressure. The NZa could seek assistance to ensure that health insurers and care administration offices fulfil their duty of care as soon as possible – it has done so before. The NZa set up a hotline, for instance, to report suspicions of healthcare fraud or bottlenecks in acute care. The NZa would be well advised to set up an online hotline where healthcare providers and patients can report breaches (or imminent breaches) of the duty of care. Given the interests of patients (and their relatives and employers) in being helped in a timely manner, that could certainly do no harm. The setting up of such a hotline by the NZa is also in the interest of health insurers: excessively delayed care often leads to more and additional complaints and therefore to a greater demand for care, resulting in more (macro) healthcare costs. Such a hotline would also be an asset for healthcare providers that wish to provide more catch-up and regular care. The duty of care hotline will provide the NZa with real-time information on where the duty of care is, will be or remains at risk. That information will help the NZa to enforce the duty of care on the basis of its statutory powers. In doing so, the NZa will be making a valuable, or even its most valuable, contribution to tackling the consequences of the corona pandemic.

More information on the rights of healthcare providers and the duties of health insurers can be found at zorgcontractering.com.

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