NZa rates too low: who protects our healthcare providers and our healthcare system?

Rate regulation currently takes place in various healthcare sectors and that will continue in the coming years. This means that the NZa (the Dutch Healthcare Authority) sets maximum rates each year. It records these maximum rates in a rate decision. According to case law of the CBb (Trade and Industry Appeals Tribunal), the rates must be realistic and must cover the costs. In recent years, the CBb has repeatedly ruled in favour of healthcare providers and their associations in proceedings against the NZa regarding rate decisions. The NZa does not appear to be learning from this. At the same time, we see that success in court does not immediately translate into benefits for healthcare providers in healthcare contracting. This is not a healthy situation. What’s going on? In this blog, we address three relevant CBb proceedings and outline the issues that the CBb has yet to consider. We explain that, given the duty of care under Article 11 of the Healthcare Insurance Act, the NZa must exercise great (or greater) care in its rate regulation. At the end of this blog, we will present four specific tips for healthcare providers regarding the NZa’s rate regulation.

CBb case 1: NVvP proceedings on unjustified rate differentiation

The NZa adopted a rate decision setting the 2022 rates for independent psychiatrists. This rate decision provided for differentiated services and rates. For each service that an independent psychiatrist can provide, the NZa has set two services with corresponding maximum rates. The lower rate was approximately 20% lower than the regular psychiatrist rate. The NVvP (Dutch Association for Psychiatry) disagreed with the rate differentiation. The CBb ruled in favour of the NVvP. It found that only the regular psychiatrist rate should be included in the 2022 rate decision, not the differentiated rate. But that was not the end of the matter. The CBb issued its ruling on 19 September 2023. The annulled rate decision related to the 2022 contract year. The psychiatrists had therefore already entered into contracts with healthcare insurers for 2022 and had received too little fees. The CBb therefore ruled that, with regard to the independent psychiatrists, as far as they “have been financially disadvantaged [...] it is now up to the NZa to find a way to compensate this damage if independently established psychiatrists claim it. This could be done, for instance, by drawing up a scheme to compensate individual independently established psychiatrists for the damage they have suffered as a result of the wrongful rates in the rate decision.” The CBb – and this was new – sent a clear message to the NZa, which was not the last, as this blog shows.

CBb case 2: General practitioners’ proceedings on the recalibration of rates

The NZa adopted a rate decision for general practitioner care in 2023 and 2024. Various general practitioners and their associations disagreed with that rate decision. Every few years, the NZa conducts a cost price study to determine the costs incurred by healthcare providers and the rates that are required to cover those costs. In the intervening years, the rates are indexed. Due to various developments, previously set and indexed rates may no longer cover costs. To prevent this, rates must be ‘recalibrated’ on a regular basis. The general practitioners believed that the 2023 and 2024 rates no longer covered the costs and argued that the NZa should have recalibrated these rates, whether or not on the basis of a new cost price study. The CBb agreed with the general practitioners. The NZa therefore had to recalibrate the rates after all. On 21 December 2023, the CBb ruled that if that recalibration showed that the 2023 and 2024 rates were not cost-covering, that would not be at the expense of the general practitioners. If the general practitioners suffer financial disadvantage, “it is up to the NZa to find a way to compensate for that damage”. In sum, a win for the GPs. But they have not (yet) been compensated. This is because, following a new cost price study, the NZa believes that the new, recalibrated rates are lower than the rates that were under discussion at the CBb. According to the NZa, there is therefore no reason to compensate any damage. The GPs disagree with this, and many of them, as well as De Bevlogen Huisartsen and general practitioner organisations such as the LHV, have taken legal action against the CBb. The final word has therefore not yet been spoken on this matter.

Professor A.C. Hendriks also criticised the general practitioners’ ruling: “Is this a new trend, whereby the CBb has to correct the NZa? It would seem so, but that’s based on two rulings. The Nza has in any event been seriously negligent, as a result of which pharmacists and now general practitioners are being confronted with flawed decisions. An authority such as the NZa may be expected to operate with due care; unfortunately, we cannot be sure of this with the NZa. This way of working undermines the Nza’s authority and could lead to the NZa’s rates and services regulation increasingly becoming the subject of legal disputes. This means that a great deal of healthcare money will be spent on legal proceedings instead of being used to safeguard the accessibility and quality of healthcare. That’s not in anyone’s interest.”

CBb case 3: increase in indirect time insufficiently taken into account in mental healthcare and forensic care rates

The CBb then addressed the procedure initiated by various mental healthcare and forensic care providers and their associations. The care providers believed that the NZa had taken insufficient account of the increase in ‘indirect’ time in the rates for 2022 and 2023. Indirect time is the time that a healthcare provider spends on a contact moment with a patient when the patient is not present. The NZa most recently adjusted the rates in 2020, based on data from 2017. It was not willing to include more indirect time in the system than the total indirect time that had been claimed and reimbursed in 2017. The healthcare providers argued that this meant the rates did not cover their costs. The CBb found in favour of the healthcare providers. On 22 August 2024, it therefore ruled that the NZa had to set new rates within three months. The NZa subsequently set revised rates for the years 2022 to 2025. Several healthcare insurers have indicated that they are not willing to adjust these rates retroactively. The final word on this point has not yet been spoken. Meanwhile, the LVVP (National Association of Independent Psychologists and Psychotherapists) is also taking legal action against the NZa in response to the proposed 2026 rate decision. And the LVVP is not the only organisation that is critical of the proposed 2026 rate decisions that will be published shortly.

There is work to be done by the NZa
As Professor A.C. Hendriks pointed out in 2024 already, the introduction of ever more procedures is problematic for various reasons. Of course, healthcare providers that disagree with rate decisions can usually first appeal to the NZa and then to the CBb. The cases explained above show that healthcare providers are doing this successfully. But when the healthcare providers were proved right by the CBb, the healthcare procurement (often referred to as ‘digital contracting’ or ‘sign-on-the-dotted line’ contracting) for the year to which the annulled rate decision related had already been completed. This means that if the CBb rules in favour of healthcare providers, they are already receiving inadequate fees for the care they have provided by the time the ruling is published. Healthcare insurers are openly stating that they do not correct rates retroactively. And although the CBb rightly urged the NZa in both the NVvP and the general practitioner cases to compensate healthcare providers that have been financially disadvantaged by inadequate NZa rates, no (appropriate) compensation has been paid to date. Understandably, healthcare providers are not letting this matter rest. The CBb will have to rule again on the rates for GPs and mental healthcare providers. Unfortunately, this will again require a great deal of time and resources. Things can and must change quickly.

NZa bound by duty of care under Article 11 of Healthcare Insurance Act when setting rates

Providing care at rates that are not cost effective is not a sustainable strategy. Sooner or later, it will have a negative impact on the proper functioning of our healthcare system. As a market regulator, the NZa may therefore be expected to set rates with great care and in one go. This applies all the more if there are already long waiting lists (as in mental healthcare and GP care), but also in the case of staff shortages that are increasing. If the NZa rates are inadequate, it is foreseeable that waiting lists will not be eliminated and that it will not be possible to retain or attract scarce healthcare personnel.

Is the NZa also bound in that regard by the duty of care that the Nza itself supervises? It is indeed. The duty of care rests on all healthcare insurers. However, where rate regulation applies, the duty of care also rests on the NZa, which must take this into account when drawing up rate decisions. This also follows from this CBb ruling. In it, the CBb states that, since the NZa may not frustrate the proper functioning of the healthcare system with its rate decision, a healthcare provider may invoke the duty of care under Article 11 (and Article 13) of the Healthcare Insurance Act in the context of a rate decision. And that makes sense, because if the NZa sets the rates in its decision too low, it will foreseeably undermine the duty of care: healthcare purchasers are not allowed to purchase healthcare at rates higher than those specified in the rate decision. The NZa’s rates constitute a maximum, or ceiling. Moreover, healthcare insurers – due to their constant competition with each other – apply (significant) discounts to the NZa rates. If the NZa rates are set too low and are then significantly reduced during healthcare procurement (which is often the case year after year), this is a recipe for financial and other problems.

And if those problems arise, the NZa does not remedy them. The NZa is aware, for instance, that healthcare purchasers are generally not willing to offer compensation to healthcare providers after an increase in the NZa rates as a result of a judicial review. And the NZa then does not intervene. Be that as it may, the NZa has a legal duty not to frustrate the effective functioning of the duty of care and thus the healthcare system, and therefore has a duty to set its rates with due care and in one go. Because prevention is better than cure when it comes to the duty of care.

What can healthcare providers and their professional and trade associations themselves do?

Rate regulation will remain on the agenda in various healthcare sectors also in the coming years. We recommend that healthcare providers and their associations that are affected by rate regulation take the following action:

  1. If you participate in a request from the NZa (or from an agency engaged by the NZa) with regard to a cost price study, please notify the Nza in writing of any ambiguities or shortcomings in the request. This will enable you to demonstrate that you sounded the alarm in good time.
  2. Object to an unfavourable NZa rate decision in good time, or arrange for a professional association to do so.
  3. Send a letter to all healthcare purchasers (while copying in the NZa) stating that an objection has been lodged against the NZa rates. Request the healthcare purchasers to take this into account, for instance by organising both (a) the contracts and (b) the IT systems in such a way that when the NZa rates are increased, the increase is also passed on one-to-one in the reimbursement for your healthcare institution.
  4. If the healthcare purchaser does not take your request under point 3 into account, sign the contract under express written protest and request that consultations be held as soon as possible to arrive at realistic rates. See this blog and this briefing for more tips on the 2026 healthcare insurance contracting. These explain, among other things, that healthcare insurers must always state sound reasons for rate reductions.

For more information, please visit www.zorgcontractering.com.

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