In 2024, the NZa announced that formal measures would be imposed on two healthcare insurers for failing to fulfil their duty of care. The NZa was investigating compliance by the four largest healthcare insurers with their duty of care in the field of mental healthcare and medical specialist care. It found that all four of those insurers needed to improve the fulfilment of their duty of care. The NZa imposed a formal instruction on two healthcare insurers. This was unprecedented: the NZa had never before taken formal action on the grounds of failure to comply with the duty of care. Remarkably, the NZa did not publicise the instructions or the names of the insurers involved (Menzis and CZ).
In a letter to ZN (the Association of Dutch Healthcare Insurers), the NZa outlined “the main areas for improvement” for healthcare insurers: ensuring insight into bottlenecks, taking action to address them, and evaluating and adjusting their own actions. The NZa gave Menzis and CZ six months to implement improvements. It stated that if they failed to make sufficient improvements, the NZa could publish the measure.
It is now clear that CZ has not yet sufficiently complied with the NZa’s instructions. According to the NZa, CZ is currently working on a “supplementary improvement plan”. If this follow-up plan does not lead to the desired result, an order subject to a penalty may be imposed.
The fact that the NZa is placing CZ under stricter supervision has been widely reported in the media. And understandably so, since the NZa has never done this before. The question arises as to what the NZa’s measure actually entails. What has CZ failed to do, or done insufficiently, that other healthcare insurers are doing, or are doing better, according to the NZa? Or, more simply put: what exactly does a healthcare insurer have to do, according to the NZa, to fulfil its duty of care and healthcare procurement obligation?
It will come as no surprise that we believe it is a good development that the NZa is taking measures to ensure compliance with the duty of care (see this and this blog): waiting lists in mental healthcare and medical specialist care are still too long. But it is a missed opportunity that the NZa is not publishing the instruction imposed on CZ at this time. As in 2024, the NZa has failed to clarify exactly what is expected of CZ (and other healthcare insurers) when it comes to the duty of care.
We previously pointed out that the NZa states in its Guidelines about the duty of care that it is an obligation of result. Only if a healthcare insurer, despite its best efforts, is unable to fulfil its duty of care and can demonstrate this, may it rely on force majeure. The way in which the NZa currently enforces the duty of care appears to reduce it to a best-efforts obligation. That is why transparency is so important, especially now. This will prevent unnecessary confusion about what the duty of care entails according to the NZa.
No one will deny that the waiting lists in mental healthcare (or other sectors) are not easy to resolve and that labour shortages play a role in this regard. That is precisely why the NZa would have done well to clarify what may be expected of healthcare insurers at this point. If, for instance, there are indications that lighter mental healthcare is ‘cannibalising’ intensive mental healthcare, should the NZa not be more vocal about the specific measures that healthcare insurers must take to bring waiting lists in intensive mental healthcare below the Treeknorm (maximum acceptable waiting periods)? Without this transparency, there is a risk that the NZa’s current ‘enforcement’ will actually undermine the healthcare insurers’ obligation to provide (and procure) care as an obligation of result.
A common complaint of healthcare insurers is that they wish to reduce waiting lists in mental healthcare, but that they do not have enough information to tackle the problem. Healthcare insurers say that people who wait too long for care should contact their healthcare insurer. This is apparently not being done often enough. However, the NZa could point out to healthcare insurers that there are numerous ways in which they can fulfil their role. Healthcare insurers have proven for years, for instance, that they are entirely capable of reaching their insured via TV, newspapers and social media. We are also seeing a positive development in which healthcare insurers are using social media – sometimes in collaboration with healthcare providers – to try to prevent people with complaints from turning to mental healthcare services when their underlying healthcare and other needs can be better addressed elsewhere.
Healthcare insurers are therefore already paying attention to canvassing the insured and reducing the inflow. But healthcare insurers and ZN have not really been doing enough to clearly tell their insured who they should turn to if they are waiting too long for intensive mental health care. The NZa could have raised this issue with healthcare insurers a long time ago already. It could also inform people much more frequently and expressly that no extra costs are involved if persons are referred to a non-contracted care provider after care mediation by their healthcare insurer: many people are unaware of this. In sum, it is time for the NZa to clarify what healthcare insurers, healthcare providers and patients may expect from each other. The NZa will also have to play its part in this regard. We have already made practical suggestions to the NZa in this context. Be that as it may, if the NZa wishes to reduce waiting lists and prevent erosion of the duty of care, a great deal of work has yet to be done.
This blog was previously published (in abridged form) in Zorgvisie.
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