NMa: Consultation with the Healthcare Sector on Cooperation Guidelines
The Netherlands Competition Authority (NMa) has drawn up guidelines to provide more clarity on the forms of cooperation in the healthcare sector that are possible from the perspective of competition law. In this regard, NMa is of the opinion that where cooperation increases efficiency and quality and does not unnecessarily limit competition, such agreements are to the advantage of the consumer and are permitted under the Competition Act. NMa has presented the Guidelines for Cooperation in the Healthcare Sector as a consultation document, to which the sector may respond. For instance, NMa has asked the Landelijke Huisartsenvereniging, LHV [National General Medical Practitioners' Association] to make suggestions for alternative forms of cooperation during negotiations.
From the guidelines it appears that the application of the Competition Act to the healthcare sector does not mean that all healthcare providers now have to negotiate individually with the healthcare insurers. There are various other possibilities:
- Healthcare providers may negotiate jointly as long as they remain below the minimum level stipulated in section 7 of the Competition Act (EUR 908,000).
- For healthcare providers who substitute for each other, it is permissible as group of locums to negotiate tariffs for evening, night and weekend shifts.
- If a group of healthcare providers has entered into a far-reaching form of cooperation, this group may also negotiate with the health insurers. Examples of such "joint healthcare provision" include making use of the same premises, a shared computer system and joint staffing of the practice or secretarial support. This form of cooperation and joint negotiations in this regard with health insurers fall within a European block exemption ("block exemption for specialisation agreements"). This is subject to the condition that the market share of the cooperative healthcare providers remains below 20%. If all healthcare providers were to cooperate in this way, patients/insurers would no longer have any choice and in fact there would only be one provider.
- In the case of cooperative ventures which do not fall under this group exemption, the parties involved may request an exemption from NMa.
- Healthcare providers who work within partnerships are also permitted to negotiate collectively. Within these partnerships the financial risk is shared and the articles of association stipulate that policy is determined jointly. In this case, these are not independent undertakings, in terms of section 6 of the Competition Act, and the agreements are agreements within a single undertaking.
- Healthcare providers may always negotiate jointly in relation to certain topics. These are not only topics which relate to the content of healthcare, but also to projects which healthcare providers are not able to carry out themselves, such as jointly setting up a network for the exchange of electronic patient files.
- Healthcare providers may outsource the negotiations to a third party ("healthcare broker"). Such outsourcing, however, may not result in the exchange of information and concerted practices between healthcare providers who compete with each other.
The guidelines deal in more detail with other agreements specific to healthcare, such as preferential lists for medical aids and medicines and the contracting policy of health insurers.
The abuse of a dominant position is prohibited under the Competition Act. An undertaking with a dominant position may not charge excessive prices, exclude customers or drive competitors from the market. Healthcare insurers with a dominant position are obliged to draw up objective, transparent and non-discriminatory criteria for the contracting of healthcare providers. The health insurer, however, is not required to enter into contracts with everyone.