The ACM releases guidelines on healthcare trade associations and healthcare contracts

Who is targeted by the guidelines?

The guidelines apply to associations of healthcare providers and healthcare insurers. In the introduction to the guidelines, the ACM notes that since 2020, partly against the backdrop of the COVID-19 pandemic, industry associations have played more active a role in contract negotiations, which influenced individual contract negotiations between healthcare providers and health insurers. This in turn creates competition law compliance risks. In this context, since the end of 2022, the ACM has been investigating the influence of a number of industry associations on individual healthcare contracting. While the guidelines are directly addressed to trade associations, companies which are members of such associations should also take notice of them. Companies’ employees may be involved in the associations’ functioning and therefore be bound by the guidelines. Additionally, the guidelines regulate the members’ behaviour. For instance, if a trade association issues improper advice, members should not follow this advice since that could potentially constitute anti-competitive behaviour.

The guidelines' key objectives

The guidelines cover three areas of activities related to healthcare contracting: (1) informing, clarifying, and doing research; (2) providing advice and recommendations to members; and (3) monitoring and feedback. For each area, the guidelines provide examples of concrete actions and indicate whether they are permissible.

The guidelines further provide four rules of thumb, which can be summarised as follows:

1. Healthcare trade associations should not share information with or advise their members on ‘commercial aspects’ of contracting. Such commercial aspects include, for instance, prices, volume, price indexation mechanisms and forms of contract (e.g., turnover ceilings, contract sums or P*Q agreements). Instead, the advice given by trade associations should be general. For instance, trade associations may advise their members on whether having an external legal counsel is generally desirable.

2. Trade associations may announce to their members that they are conducting research or negotiating collective arrangements. However, they should not direct their members’ follow-up actions. For instance, the association cannot ask members to stop contracting until the research is concluded.

3. When conducting surveys among members after the contracting period has ended, associations should use open-ended and neutral questions. The questions cannot suggest a particular course of conduct or contain information that may be used for benchmarking. An example of a question to avoid is e.g., ‘whether health care providers could so far stick to the X% mark-up for additional costs’.

4. Trade associations should not share with their members information about commercial aspects, which associations obtained in their research and monitoring of the results of contracting.

What to do next?

Healthcare providers and healthcare insurers should update their employees who are representatives in the associations or are engaged in the functioning of associations in the Netherlands about the guidelines and share the guidelines with them. Providing training to employees on competition rules relating to participation in healthcare associations is advisable.

Companies should also monitor information that they send to and receive from trade associations, especially when information on ‘commercial aspects’ is involved, to avoid infringing competition law.

The guidelines were issued in the wake of several ACM investigations opened last year into anti-competitive conduct through healthcare trade associations. The AMC is likely to closely monitor the behaviour of healthcare trade associations and their members in the short and medium term. This means that there is a higher risk of anti-competitive behaviour being detected.

The guidelines may be instructive even for trade associations outside the healthcare industry, as the four rules of thumb are of general application irrespective of industry.