Diederik Schrijvershof, Judith Jansen and Annabel Kingma successfully assisted five respiratory care providers in preliminary relief proceedings against healthcare insurer ONVZ. More than 2.2 million people in the Netherlands use a medical device to minimise the obstacles they encounter as a result of a physical disability. Respiratory medical devices are specifically designed for a variety of respiratory conditions, such as obstructive sleep apnoea or COPD.
In 2024, ONVZ concluded one-year contracts with suppliers of respiratory care products for the supply of respiratory care products in 2025. The summary proceedings concerned seven respiratory care contracts for 2025. ONVZ unilaterally set the rates in these contracts (‘tick in the box’). In various 2025 contracts, ONVZ significantly reduced the rates compared to the 2024 rates applied by ONVZ. In this context, ONVZ had informed the healthcare providers that a report commissioned by ONVZ and prepared by Gupta showed that the ONVZ rates were higher than the market average. Neither ONVZ nor Gupta involved the respiratory care providers and their trade association in the preparation of the Gupta report. Despite repeated requests to ONVZ, the healthcare providers were not given access to the Gupta report. In the meantime, healthcare providers reported repeatedly and unsuccessfully to ONVZ that the rates for 2025 were actually well below the market average. ONVZ ignored all of this and did not amend the unilaterally drafted 2025 contracts. The healthcare providers felt compelled to sign the 2025 contract under protest and asked ONVZ to enter into consultation. ONVZ refused. Even after receiving a draft writ of summons, ONVZ refused any form of consultation. As a result, the respiratory care providers were forced to go to the preliminary relief judge.
The judge concluded that:
- the respiratory care providers are dependent on ONVZ. The fact that ONVZ has a limited national market share (approximately 2%) does not alter this, according to the judge. Respiratory care providers are dependent on ONVZ, among other things because working without a contract is not a realistic option in practice. Working without a contract means that cooperation partners (e.g. hospitals or doctors) would no longer refer all their patients to the respiratory care provider. Working without a contract also entails more administrative burdens; and,
- now that the respiratory care providers are dependent on ONVZ, ONVZ should not have reduced the rates in the contracts without consulting the providers. Certainly not now that the respiratory care providers had expressed their objections to ONVZ and asked questions about this. In doing so, ONVZ must take sufficient account of the interests of the respiratory care providers; and,
- there is a race to the bottom in the counter-bidding by healthcare insurers. Due to competition between them, healthcare insurers aim for the lowest rate charged by a competing healthcare insurer. This causes all rates to fall, creating a race to the bottom.
The court then ruled:
- that ONVZ must increase its 2025 rates for four types of respiratory care products; and
- the court agreed with the healthcare providers' argument that ONVZ may not use the Gupta report in its 2026 healthcare procurement.
Maverick Advocaten has been campaigning for years for fair rates for numerous healthcare providers. Maverick Advocaten has previously achieved success in (preliminary relief) proceedings for healthcare providers in the procurement of, for example: orthopaedic shoes (CZ), orthopaedic shoes (VGZ), primary diagnostics (Star ruling), general practitioner care, acute mental healthcare (here and here), forensic care, youth care, SGLVG care, Wlz care (also on appeal), and Wmo care (see also here).
For more information, see www.zorgcontractering.com.
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