NZa finally enforces duty of care/care procurement duty: a step forward, but fast improvement required

For the first time in 18 years, the Dutch Healthcare Authority (NZa) is taking action against health insurers for failing to comply with their duty of care/care procurement duty. The NZa finds that none of the four largest health insurers fully complies with the duty of care and the relevant standards. In this blog, we explain that the NZa’s action is a step in the right direction, but that it still has a great deal of work to do. And that work is urgent, because the NZa is opting for a course that sets a dangerous precedent, unless corrective action is taken soon.

NZa investigates compliance with duty of care

The NZa last year investigated the ‘proactivity’ of health insurers in the field of the duty of care in mental healthcare and medical specialist care. The survey focused on how the four largest health insurers (Zilveren Kruis, VGZ, CZ and Menzis) comply with their duty of care in a number of regions in which they are the largest health insurers. The NZa found that health insurers insufficiently complied with the duty of care. It imposed an official order on health insurers Menzis and CZ.

The duty of care is an obligation to purchase care: what does that mean? Health insurers are required by law to ensure that their insured receive the care to which they are entitled in accordance with their insurance, in a timely manner and within a reasonable travelling time. This is set out in Article 11 of the Zorgverzekeringswet (Healthcare Insurance Act). The duty of care also applies to care administration offices that purchase care under the Wet langdurige zorg (Long-Term Care Act; see Articles 4.2.1 and 4.2.2 of that Act). Since healthcare insurers do not provide care themselves, they purchase it from healthcare providers to fulfil their duty of care. There is therefore a care procurement duty that rests exclusively on health insurers and not on care providers.

The duty of care/care procurement duty has been under significant pressure for many years. In the mental health sector, more than 80,000 people are still waiting for care, 40,000 of them longer than the maximum acceptable waiting period (Treeknormen). In medical specialist care, 46% of waiting times for treatment are longer than those maximum periods. The NZa had previously investigated whether health insurers were making sufficient efforts to shorten the waiting lists in medical specialist care. It found that health insurers could take more action to shorten the waiting lists, but nevertheless failed to take any formal enforcement measures. At the same time, the NZa reported that “stricter enforcement of insurers’ duty of care to reduce mental health waiting lists [...] is ineffective.” A curious line of reasoning, also because the NZa is under a statutory duty to act in the general interest of consumers. It is indisputable that the waiting lists in the mental health sector (among others) are too long; moreover, the NZa is under a general enforcement duty. It is nevertheless a good development – better late than never – that the NZa is taking action. But the question is whether the NZa’s approach can have the desired effect. We believe it cannot.

Duty of care: an obligation of result, not a best-efforts obligation

In its Guidelines, the NZa writes about the duty of care: “The obligation to provide (contracted) care or to refund (non-contracted) care is known as an obligation of result towards the insured. The duty to act as an intermediary (in non-contracted care) is a best-efforts obligation. If a health insurer cannot fulfil its duty of care, despite maximum efforts, and can demonstrate this, it can rely on force majeure.” Ensuring that an insured receives timely care is therefore an obligation of result (see also here). This means that health insurers are obligated to achieve a certain result—in this case, arranging for the timely provision of care.

The question is under what circumstances a health insurer can rely on force majeure. In the Guidelines, the NZa writes that the duty of care may be put under pressure “by a catastrophe’: “By ‘catastrophe’ we mean a natural disaster, pandemic, nuclear explosion, or other extraordinary event designated by ministerial regulation,” in the NZa’s words.

At the same time, it is apparent from the way the NZa is now (finally) enforcing the duty of care that it wishes to reduce the duty of care to a best-efforts obligation. It has mainly investigated, for instance, whether health insurers “proactively fulfil their duty of care.” The NZa investigated “what health insurers are doing to gain an impression of the regional need for care and provision of care, and any bottlenecks they identify there.” In other words, the NZa is assessing (in particular) whether health insurers have made sufficient efforts to fulfil their duty of care. This is substantially different from the NZa assessing the actual result of their efforts (i.e. whether the insured receive timely care). This approach, which erodes the duty of care/care procurement duty, is in any event at odds with the principle of legitimate expectations by which the NZa is bound.

Insurers underwhelmed

Be that as it may, and all good intentions notwithstanding, the NZa’s current approach is not working in its favour. Health insurers seem underwhelmed by the NZa measures. Menzis has stated that the order “primarily relates to the question whether we are adequately ensuring that regional care providers are delivering timely care and whether we, as health insurers, are adequately monitoring this.” CZ has reported that if waiting times exceed the norm, it negotiates with care providers. “We ask them what the problem is and how they intend to solve it. But it’s true that there’s room for improvement there.” These responses awkwardly expose the fact that health insurers primarily regard the fact that numerous people in the mental healthcare and specialist medical care sectors are waiting for care longer than the maximum acceptable waiting periods as a problem that should be solved by care providers rather than by health insurers.

Duty of care/care procurement duty applies to all health insurers – and not only in their core working area

The NZa furthermore limited the scope of its investigation to the four major health insurers. But the duty of care obviously applies to all health insurers. Another limitation of the survey is that it only investigated whether the four large health insurers are complying with the duty of care in the regions where they are the largest health insurer. But – as also apparent from the NZa Guidelines – all health insurers must of course comply with the duty of care in all the regions where their policyholders reside. The NZa’s approach and reporting are now wrongly creating the impression that health insurers need only pay attention to the duty of care/care procurement duty in regions where they are the largest (‘preferred’) health insurer.

Lack of transparency is missed opportunity

The NZa has not published the orders imposed on CZ and Menzis. It has stated that it might do so only if CZ and Menzis fait to improve their shortcomings within a period of six months. This approach is another missed opportunity. Even though the NZa has had the exclusive authority to enforce the duty of care for no less than 18 years already, it has not yet imposed a formal measure on a health insurer for breach of the duty of care. Partly as a result, waiting lists and shortages in a great many healthcare sectors are high on both the political and the social agenda. Besides mental healthcare and medical specialist care, this also applies, for instance, to medical devices, speech therapy, drug care and GP care. This is precisely why it the NZa should immediately have been transparent. By publishing orders as soon as they are issued, the NZa could not only have made it clearer what exactly it expects from health insurers: such publication would also have been a leg-up for anyone waiting too long for care and anyone working hard to shorten waiting lists.

Conclusion: NZa enforcement can and must quickly improve

It is a step in the right direction that the NZa is finally willing to enforce the duty of care, after years of failing to follow up on calls to do so. At the same time, the NZa’s approach is giving rise to risks that it must quickly correct in the general interest of consumers. Health insurers are currently interpreting the NZa’s orders primarily as an incentive to better monitor and record the duty of care. But that is not the essence of the duty of care. Monitoring and recording are merely a means of achieving the statutory goal: that all insured persons receive timely and appropriate care. As the care procurement duty is an obligation of result, the NZa is well advised to remind health insurers of this much more emphatically. It would also be good if the NZa were to announce that it will follow through with financial sanctions where necessary, since it has the authority to do so – all the more so since health insurers have been offering significantly fewer non-contracted care policies in recent years. Timely procurement of sufficient care (and effective enforcement of that procurement) by all health insurers is therefore more important than ever before.

This blog was published as an opinion in Zorgvisie on 14 March 2023.

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Diederik Schrijvershof

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