Rb. Noord-Holland - C/15/314345 / KG ZA 21-145
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| Rb. Noord-Holland - C/15/314345 / KG ZA 21-145 | |
|---|---|
 | |
| Court: | Rb. Noord-Holland (Netherlands) |
| Jurisdiction: | Netherlands |
| Relevant Law: | Article 6(1) GDPR |
| Decided: | 25.05.2021 |
| Published: | 26.05.2021 |
| Parties: | VGZ Regenboog apotheek |
| National Case Number/Name: | C/15/314345 / KG ZA 21-145 |
| European Case Law Identifier: | ECLI:NL:RBNHO:2021:4245 |
| Appeal from: | |
| Appeal to: | Not appealed |
| Original Language(s): | Dutch |
| Original Source: | De Rechtspraak (in Dutch) |
| Initial Contributor: | Gerard Ritsema van Eck |
The District Court of Northern Holland held that a pharmacy had no legal basis to publish the names and telephone numbers of two employees of a health insurance company with which it had a conflict.
English Summary
Facts
De 'Regenboog Apotheek' (Rainbow pharmacy) is a pharmacy which provides its patients with so-called 'tapering strips'. These strips are used when patients stop taking certain kinds of antidepressants and ADHD-medication, as suddenly stopping can cause severe withdrawal symptoms. Tapering strips need to be made by hand for individual patients, and are therefore expensive. Health insurance company VGZ refuses to pay for these strips despite insistence of the pharmacy that they are legally obliged to do so. This dispute has led to the termination of the contract between the Regenboog pharmacy and VGZ. The pharmacy then placed an ad in a local newspaper, informing their patients that they might need to switch to a different health insurance company. In this ad, the names and work telephone numbers of two employees (who work at the purchasing department of VGZ) were included. In a separate letter to all patients using ADHD-medication, this information was repeated.
Dispute
Was the pharmacy allowed to publish the names of employees of the purchasing department of the health insurance company?
Holding
The Court ordered the publication of the personal details of the employees unlawful, as a legal basis was missing. The Regenboog pharmacy was ordered to send a follow-up letter to all patients who had illegally received personal details, pointing them to the general customer service number of VGZ.
Comment
The case itself is a bit more complicated, but for this summary the focus has been on parts of the judgment which relate to the GDPR.
Further Resources
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English Machine Translation of the Decision
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.
Authority
District Court of North Holland
Date of judgment
25-05-2021
Date of publication
26-05-2021
Case number
C / 15/314345 / KG ZA 21-145
Jurisdictions
Civil rights
Special characteristics
Interim injunction
Content indication
Interim injunction concerning announcements from pharmacy Regenboog about health insurer VGZ. Tapering medication anti-depressants, tapering strips. Transparency regulation NZa. Notices from Regenboog are not false or unlawful. No insurance advice within the meaning of Wft. Mention of names of VGZ employees in violation of AVG. Rectification.
Locations
Rechtspraak.nl
Enriched pronunciation
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Statement
verdict
COURT NORTH HOLLAND
Trade, Canton and Government
Seat in Alkmaar
case number / cause list number: C / 15/314345 / KG ZA 21-145
Interim injunction of 25 May 2021
in the case of
1. the cooperative association
COOPERATIVE VGZ U.A.,
established in Arnhem,
2. the limited liability company
VGZ HEALTH INSURER N.V.,
established in Arnhem,
3. [Z],
residing in [residence],
4. [B],
residing in [residence],
plaintiffs,
lawyers
mr. T.R.M. from Helmond,
mr. J.M.Y. van Beijeren and
mr. C.A.S. from the Bovenkamp in Amsterdam,
against
1. the private company with limited liability
RAINBOG PHARMACY BAVEL B.V.,
established in Bavel,
2. the private company with limited liability
PHARMACY TOLAKKER B.V.,
established in Bavel,
3. the private company with limited liability
RAINBOG PHARMACY SCHARLO B.V.,
established in Alkmaar,
defendants,
lawyers
mr. D.J.C. To post
mr. K. van Berloo from Zeist.
The parties will hereinafter be referred to as VGZ and Regenboog. Plaintiff 3 will be referred to in this judgment as [Z] and Plaintiff 4 as [B].
Summary of the case and judgment
This case is a result of the national discussion about tapering off medication for anti-depressants.1 Pharmaceuticals do not supply the desired small amount of medication that is desirable for tapering off. Pharmacy Regenboog therefore makes so-called tapering strips itself. This contains measured quantities of medicine per patient. These are not reimbursed by most health insurers. Regenboog Apotheek has informed its policyholders in several letters that VGZ does not reimburse the tapering off medication and that the discussion about this has led to the termination of the contract with Regenboog. In these proceedings, VGZ is contesting the statements in those messages. The preliminary relief judge judges the statements as not unlawful. Also, no (incorrect) insurance advice was given. Regenboog Apotheek has incorrectly stated the names of specific VGZ employees. She must rectify that.
1 The procedure
1.1.
The course of the procedure is evidenced by:
-
the summons of April 28, 2021 with 20 exhibits,
-
Supplementary Exhibits 21 and 22,
-
productions 1 to 7 on the part of Regenboog,
-
the oral hearing that took place on 11 May 2021,
-
the advocacy notes of VGZ,
-
the advocacy note of Regenboog.
2 The principles
2.1.
In 2020, VGZ had a pharmaceutical care healthcare agreement with Regenboog. VGZ terminated this agreement by letter dated September 25, 2020 and has not subsequently concluded a new healthcare agreement with Regenboog for 2021.
2.2.
In December 2020, Regenboog distributed a letter through door-to-door newspapers in the Bavel and Alkmaar region (the Scharlo district) with the title "Regarding: Refusal of contract by VGZ → Switching from health insurer" (hereafter: letter of phasing out medication).
2.3.
In the letter for phasing out medication, the following is stated, insofar as it is relevant here:
"Zorgverzekeraar VGZ (and therefore all labels covered by it) has refused to enter into a contract with Regenboog Apotheek and Apotheek Tolakker before 2021 (...).
This means that the pharmacies in Bavel will not have a contract with the VGZ group from 2021.
This has been the case for the health insurers of Zilveren Kruis / Achmea since 2014, so that we want to inform you about the adjusted settlements that will be required.
The easiest solution to prevent this is to switch to a contracted party
health insurer of, for example, CZ, Menzis or DSW.
In this way we would like to inform you that it is a unilateral decision by VGZ (and Achmea at the time). Regenboog Apotheek and Apotheek Tolakker have asked for the contract to be continued, but VGZ refused. This decision means a change for a large group of people with regard to the reimbursement of the care they receive from the pharmacy. Below are the possible options for continuing the care at Regenboog Apotheek and / or Tolakker Pharmacy:
You switch to a health insurer that does have a contract. Nothing will change for you and you can collect the care from the pharmacy in the same way.
Every health insurer has the same basic insurance and is legally obliged to accept you for this. Your new health insurer will also arrange everything with your old health insurer.
You take out a reimbursement policy with VGZ or Achmea. You will then be reimbursed 100% by VGZ or Achmea. With a reimbursement policy you have a free choice of care provider. You must declare the care yourself with the received invoice. A reimbursement policy is slightly more expensive than a policy in kind.
As stated, the easiest way is to
to switch to a contracted party
health insurer
. If you want help and / or support with this, you can email us free of charge to
dupon@regenboogapotheek.nl. You will then be contacted to make an optimal choice for you for the health insurance choice for 2021 (....)
NB. You may not have heard from VGZ about this yet. The reason for this is that they do not inform you, because you will then remain with VGZ. In that case, they only have to reimburse 75% of the care because it is then non-contracted care (...).
In addition to the "normal medication", Rainbow also supplies ADHD medication, customized medication and tapering off medication in Tapering strips. The Tapering strips in particular are an eyesore for VGZ. This medication is prepared and supplied according to the guidelines. This should thus be compensated. The judge has already ruled on this and stated that VGZ must reimburse. VGZ (despite the fact that it stated that it would follow up the verdict) appealed at the last minute because they wanted to pay as little as possible; even if the patient is entitled to this reimbursement (..)
You can reach the VGZ healthcare purchaser for any explanation of VGZ's decision:
• [Z] (Preliminary Relief Judge: followed by mobile number and business e-mail address) (..)
Rainbow Pharmacy will continue to provide care, regardless of the health insurer's abuse of power with which the health insurer harms patients. Care is a necessity of life and should not be abused on the back of the patients ".
2.4.
On December 29, 2020, Regenboog wrote the following to her patients who had received ADHD medication via Regenboog in 2020:
“Reimbursements for pharmacy-prepared ADHD medication for VGZ insured persons
Dear Sir / Madam,
Our system has shown that you will receive ADHD medication from Regenboog in 2019 and / or 2020
Pharmacy Scharlo and that you were then insured with VGZ-groep ".
It concerns the medication:
• Methylphenidate retard
• Dexamfetamine
• Dexamfetamine retard
• Dexmethylphenidate retard
This medication was / will be
not
reimbursed by VGZ. Only the dexamfetamine 2.5mg
was / will be reimbursed. Rainbow Pharmacy has established that VGZ does reimburse this medication for a number of patients. Despite inquiries at VGZ, no substantiation has been provided
why VGZ uses the ADHD medication for some patients, but for many patients
does not reimburse.
The basic insurance is
equal for everyone
and this means that everyone would be treated equally
must be related to the fee. It is incomprehensible to Rainbow Pharmacy
why, and on what grounds, VGZ makes this distinction.
If this distinction would not be made, and the compensation would be for everyone
apply, Regenboog Apotheek could also declare this care and reimburse VGZ for the medication. You would not have received the invoice for this medication.
If you want to be reimbursed (retroactively) for the medication, you can make demands at VGZ
that they also reimburse the medication for you, just as they do for other patients or
have done.
You can check the agreements about ADHD medication at Zorginkoop:
• [Z]: (Preliminary Relief Judge: followed by mobile number and business e-mail address)
If it is stated that a medical assessment is required for your application, you can
these requests via VGZ Medical Assessments:
• [B]: (Preliminary Relief Judge: followed by mobile number and business e-mail address)
We trust that VGZ adheres to the principle of equality and that all patients are the same
compensation.
Trusting to have informed you sufficiently ”.
2.5.
From 1 January 2021, Rainbow has stated the following in an appendix to the standard form for insured persons:
"Dear Sir / Madam,
Regenboog Apotheek has recently supplied you with tailor-made medication.
As with all medicines, there are rules for the reimbursements for medication. There are
health insurers that do reimburse the medication, but also health insurers that do not reimburse the medication at all. This medication must then be paid for by the patient. The customized medication is considered by many health insurers to this group. You received this information via the package leaflet that came with the medication delivery and this was stated on the medication itself.
For the tailor-made tapering medication (Tapering strips), the health insurers of
DSW
(all tapering medications) and
ENO
(tapering medication for SSRIs and SNRIs) the
Reimburse tapering medication (Tapering strips) from the basic package. All other health insurers do not reimburse the tapering medication (Tapering strips) and must assess this per individual.
For tailor-made medication (such as fluoxetine), only DSW has indicated that it will reimburse this medication. Other health insurers must assess this per individual.
In December 2019, the Gelderland District Court ruled that the tapering off medication
(Taperinstrip) must be reimbursed. To date, health insurers have not yet adhered to this, but you can refer them to the verdict:
ECLI: NL: RBGEL: 2019: 5935
.
We advise everyone to submit the invoice to the health insurer anyway, because dc
medication must be reimbursed. Especially if your claim is submitted with the
substantiation of your practitioner. It should state why you have that way
tapering off (e.g. previous unsuccessful attempts, long use of high dose, fear of tapering off).
If your health insurer does not reimburse the medication (and therefore acts contrary to the judgment), they will have to substantiate this towards you. Without an individual assessment, there is
no
basis for refusing the reimbursement.
If you do not have a medical necessity statement, we advise you to request this from your practitioner. The practitioner can then declare in writing that the reduction was medically necessary and you can send this to your health insurer.
Regenboog Pharmacy has a number of health insurers
no
contract. We can provide you
thus do not provide information about the reimbursement decisions. For questions about the
reimbursements from non-contracted health insurers, please contact:
VGZ: Mr. [Z] (Healthcare Purchase) (Preliminary Relief Judge: followed by mobile number and business e-mail address)
VGZ: Mrs. [B] (Medical Reviews (Preliminary Relief Judge: followed by mobile number and business email address)
Silver Cross: (..)
They can inform you about the decisions / substantiation regarding the reimbursements ”.
3 The dispute
3.1.
In summary, VGZ claims - Rainbow under penalty of a penalty
to prohibit the submission of incorrect communications and to order them to be rectified,
prohibit the personal data of VGZ employees from being provided to third parties in violation of the GDPR,
order to rectify all inaccuracies and to notify all previous recipients of Regenboog's communications that the personal data of [Z] and [B] has been provided to them in violation of the GDPR,
to prohibit the provision of insurance advice to its patients without a license,
to be ordered to pay the legal costs and subsequent costs.
3.2.
On the basis of these claims by VGZ and Regenboog's defense
is discussed below under “The assessment”.
4 The assessment
Background to the dispute
4.1.
Abrupt cessation of antidepressant use can lead to an ADS syndrome.2 A patient may develop various forms of withdrawal symptoms. That is why it is often recommended to phase out the use of antidepressants. Since 2015, a discussion has arisen about the reimbursement of tapered medication for anti-depressant drugs. Rainbow had developed a so-called "tapering strip" for this purpose. A tapering strip is a tool with the aim of reducing patients' medication use in small steps. It consists of a roll with 28 daily doses in the form of tablets or capsules, the dose of active substance being lower every day. A tapering strip is tailor-made in the sense that the strip is put together separately for each patient. With the use of one or more tapering strips, the use of medication can be completely phased out in a number of weeks or months. The tablets or capsules formulated by Rainbow in the tapering strip are pharmacy preparations. It therefore concerns "magisterially prepared" tapering medication.
4.2.
Most health insurers (including VGZ) have taken the position that the tapering strip in its current form is not eligible for reimbursement, because it cannot be classified as "rational pharmacotherapy".
4.3.
After consultation between pharmacists, patients, general practitioners and psychiatrists, a so-called Multidisciplinary Document “phasing out SSRIs & SNRIs” was drawn up.
That document provides recommendations for the withdrawal of antidepressants. From 1 January 2019, VGZ will use this document as the starting point for the reimbursement of tapering medication. Its policy states that the supervision of the patient by the prescriber and / or pharmacist during the tapering off is essential.
The document includes an example of a tapering schedule for patients at risk of ADS:
The parties to these summary proceedings disagree on the application of the recommendations in the document.
The dispute in these summary proceedings
4.4.
The parties have had a healthcare agreement with each other for many years.
In a letter dated September 25, 2020, VGZ reported non-compliance with agreements by Regenboog's six pharmacies. That is why VGZ canceled the agreement on that date by 1 January 2021. As a result, there would no longer be an agreement with Regenboog as of that date.
On December 9, 2020, there was no new contract and Regenboog sent the letter cited above under 2.3. Rainbow then sent patients the ADHD letter on December 29, 2020 (2.4). Finally, from 1 January 2021, Regenboog sent patients an attachment to the standard form (2.5). VGZ states that Regenboog has made factually incorrect and misleading statements in this communication. As a result, Regenboog is acting unlawfully towards VGZ and its two named employees [Z] and [B].
Urgent interest
4.5.
The preliminary relief judge must first of all answer the question whether VGZ has an urgent interest in its claims against Rainbow. That's true. After all, VGZ wishes to rectify unlawful communications in its view, which is urgent by nature. After its summons of 21 February 2021 to 18 March 2021, VGZ filed for this interim injunction. With this she has not - as Rainbow argues - "sat still" for so long that the urgent interest has disappeared.
Substantive assessment
4.6. Granting the claims of VGZ would imply a restriction on Regenboog's fundamental right to freedom of expression. 3
It is settled case law that this right can only be limited if this is provided for by law and is necessary in a democratic society, for example to protect the good name and rights of others.4 Such a provision is the regulation of the tort. .5
In order to answer the question whether Regenboog's communications to VGZ constitute an unlawful act, all circumstances of the case must be taken into account.
These circumstances may include: (a) the nature of the published communications and the seriousness of the likely consequences for VGZ and [Z] and [B],
(b) the seriousness - viewed from the point of view of the public interest - of the wrongdoing exposed by Rainbow and
(c) the extent to which Rainbow's communications are supported by the available evidence.
I. Unlawful Disclosures
4.7.
After this, the preliminary relief judge will determine per section whether there are unlawful statements by Regenboog and, if so, whether they should be rectified.
Letter Withdrawal Medication
4.7.1.
Regenboog mentions in the letter Afbouwmedicatie that VGZ has refused to enter into a new contract. VGZ argues that this is incorrect, because the negotiations were still in full swing in December 2020.
The care agreement between the parties was of a continuous nature. Without the termination by VGZ as of September 25, 2020, a new agreement would apply as of January 1, 2021.
According to VZG's “2021 Pharmaceutical Care Purchasing Policy”, the parties should have signed a new basic agreement by 1 November 2020 at the latest. In 2020, Regenboog had 15 additional conditions that Regenboog would not have complied with.
Of those conditions, 11 related to the difference of opinion about the reimbursement of the tapering medication. VGZ has not substantiated on which part the parties were still negotiating. The fact that Rainbow announced on December 9, 2020 that VGZ has refused to enter into a new agreement as of January 1, 2021 is therefore not incorrect or misleading. This is all the more so, because any switch to another health insurer by insured parties in principle had to be made before 1 January 2021.
4.7.2.
VGZ has referred to a decision of 22 December 2020 of the Dutch Healthcare Authority (NZa) to substantiate its position. In that decision, this authority would have given Rainbow a clue as to making incorrect statements. Regenboog claims to have appealed against this decision. This decision is not part of the documents in these summary proceedings. The Preliminary Relief Judge is therefore unable to ascertain which communications from Regenboog refer to that instruction and therefore ignores it further.
4.7.3.
Regenboog has stated in the letter Phasing Out Medication that the consequence of the lack of a new care agreement with VGZ would entail changes for patients. That is also correct. After all, insured parties would be reimbursed for 75% of the care provided by Regenboog via VGZ from 1 January 2021 instead of 100%.
4.7.4.
Regenboog also states that VGZ is not complying with the judgment of 19 December 20196 of the Gelderland District Court. VGZ states that it does.
In order to check these statements for correctness, the relevant part of that judgment will first be displayed. The proceedings were conducted between the Afbouwmedicatie Association as plaintiff and VGZ as defendant. In the assessment, the court took the Multidisciplinary Document (see 4.3) as a starting point:
4.14 The court states first of all that the document takes as a starting point that gradual withdrawal of antidepressants results in fewer (often) withdrawal symptoms than abrupt discontinuation, which is why in all cases gradual withdrawal is chosen. That tapering off medication provides sufficient health benefits compared to abrupt discontinuation is readily accepted. The extent to which antidepressants can be effectively tapered (in terms of pace and / or dose steps) depends, according to the document, on the presence or absence of risk factors for withdrawal symptoms.
(…)
In the presence of one or more risk factors for withdrawal symptoms, a more gradual tapering schedule can be chosen in consultation with the patient. The document states that reduction to the minimum effective daily dose can still take place in the same way. If severe withdrawal symptoms occur, then in consultation with the patient, a more gradual tapering off (in terms of pace and / or dosage steps) can also be chosen for this part. From the minimum effective daily dose, refer to table 3 of the document for the reduction. This includes examples of tapering schedules per active substance with dosage steps of one week, whereby the tapering medication is only discontinued after 9 or 10 weeks respectively. (…) 4.17 The court is of the opinion that the association has insufficiently substantiated the effectiveness of a more gradual tapering off. nevertheless in all cases (emphasis in preliminary relief judge) to be able to accept. (…) 4.20 It can be established that when reducing antidepressants in the manner described in the document, which is in line with the state of science and practice, from step 2 of table 3, liquid medication (drops or suspension) should be used. ), at least if it is based on currently available registered doses of antidepressants. After all, capsules / tablets are not available in those dosages. (…)
4.21
The court is of the opinion that, based on the current scientific and practical knowledge, it can be assumed that, in view of the objections and important risks of liquid antidepressants described in the document, they are not immediately effective. It is up to the doctor and / or pharmacist to assess whether a patient can nevertheless use liquid medication or a suspension when tapering off antidepressants. It is not up to VGZ to test this, even after the phasing out has taken place. If liquid medication is not indicated according to the doctor, this is sufficient.
(…)
4.22
The court also emphasizes that the document makes it possible to deviate from tables 2 and 3 in case of medical necessity at the start of tapering off the antidepressants.
This is in the domain of the physician. The court also notes that tapering should always be discussed and evaluated in consultation with the patient.
(…)
4.24
VGZ may impose (…) conditions, taking into account what has been considered above. This also applies to insured persons with an increased risk of withdrawal symptoms. In that case, during the tapering off, in principle, tapering with registered doses to the minimum effective daily dose and then in accordance with table 3 should take place. If the alternative claim under I. were allowed, this would mean that VGZ would be obliged to reimburse patients with an increased risk of withdrawal symptoms (already) at the start for medicines prepared as pharmaceutical products. That is not in line with what the court has considered above. After all, substantiation from a doctor is required in that case.
(…)
4.25
The claim under V. can be allowed. VGZ is not permitted to refuse reimbursement on the grounds that the magisterially prepared medicine can also be replaced by a registered medicine in liquid form. If the attending physician is of the opinion that tapering off with liquid medication is not appropriate, reimbursement of magisterially prepared tapering medication must be made, without VGZ testing this (afterwards).
4.26
The claim under VI. (a statement that the right to claim reimbursement cannot be made subject to the condition that an insured person must first have followed the schedule in table 3) will be rejected. During the oral treatment, VGZ acknowledged and promised that, if prior to the tapering off, a doctor's substantiation that it is not possible to tap down in accordance with table 3, it will also be reimbursed for the tapering off medication. The association therefore no longer has an interest in granting this claim. (…) 5 The decision
The court
5.1.
declares that when considering whether there is a right to reimbursement for a pharmaceutical compounding for tapering off medication of antidepressants VGZ may not refuse the compensation on the grounds that the strength of the pharmaceutical compound prepared could also be achieved by means of a registered medicine in liquid form turn into;"
In response to questions from the television program Zembla (on the subject of phasing out medication), VGZ has stated that it has not honored any substantiated application for reimbursement in 2019 and 2020, as referred to in legal consideration 4.26 of the judgment.
During the oral hearing of these preliminary relief proceedings, the preliminary relief judge asked whether reimbursements had been awarded if, prior to the tapering off, a doctor's substantiation was available that it was not possible to tap down in accordance with table 3. VGZ replied that they made such requests has declined. VGZ assesses an application on economic grounds and tapering strips are still relatively expensive. At the hearing, the parties stated that a tapering strip is on average about as expensive as ten months 'swallowing' anti-depressant drugs (excluding any consultations). VGZ reimburses according to table 3 and otherwise does not.
4.7.5.
The Preliminary Relief Judge is of the opinion that Regenboog does not mention any inaccuracies in the letter of Phasing Out medication on this part either. VGZ is right in stating that the court has not ruled that VGZ must reimburse all tapering off medication. And it is possible that VGZ will adhere to section 5.1 of the court's decision. However, according to its own statement, VGZ is not adhering to the promise as included in the judgment under 4.26. This promise was the reason for the court to reject claim VI of the Afbouwmedicatie Association.
4.7.6.
The conclusion is that Regenboog has not unlawfully spoken out against VGZ in the letter Decomposition medication.
VGZ has substantiated that policyholders deregistered from it in 2020 and that an above-average number of these belonged to Regenboog's clientele. In view of the conclusion of the preliminary relief judge, the question of whether this is the result of the letter from Regenboog or the result of the reimbursement policy of VGZ remains unanswered.
Standard form
4.7.7.
In the appendix to the standard form, Regenboog states that only the health insurers DSW and ENO reimburse tapering strips.
That statement is not false or misleading.
4.7.8.
In the appendix, Regenboog is too positive with its statement that the Gelderland District Court has ruled that the tapering strips should be reimbursed for tapering off medication. That is not always the case. Rainbow adds that reimbursement must certainly be paid if the claim is submitted with substantiation from the practitioner stating why this has been phased out in this way. This nuance means that the Preliminary Relief Judge is of the opinion that this statement is also not unlawful, certainly in view of the framework within which the assessment must be carried out (see 4.6 above).
The Transparency Scheme
4.7.9.
Both parties are invoking the Transparency Regulation.7 The NZa includes obligations for healthcare providers such as Regenboog, which these healthcare providers must comply with. The regulations specify which information the healthcare provider must provide.
The explanation shows the aim of the scheme: the consumer must be able to choose which care he wants to receive and from whom he wants to receive this care. In addition, the consumer must be aware of the costs and reimbursements for care.
Insofar as relevant here, the Transparency Regulation reads as follows:
Article 4 Provision of information
The healthcare provider informs the consumer about what is important for the consumer to make a well-considered choice to compare and receive healthcare.
The healthcare provider informs the consumer about services that are being provided. (...)
5. The healthcare provider informs the consumer about any personal payments.
Article 5 Timeliness and comparability
1. The information referred to in Article 4 must be provided to the consumer in a timely manner.
4.7.10.
The explanation of the Transparency Regulation states the following.
It is important for the consumer to know which costs of the care he will have to pay for himself. If the consumer has to pay (part of) the costs of the care himself, it is important that the care provider informs the consumer which costs are involved and, as far as possible, how high these costs are. This concerns, for example, costs of uninsured care and costs that the consumer first pays himself and then declares to his health insurer.
An example of an information obligation is informing the consumer about whether or not they have a contract with the consumer's health insurer. This includes the situation in which the healthcare provider does not have a contract with the health insurer. In that case, the care provider must inform the consumer about this and indicate that the consumer may have to pay for part of the care himself or receive a limited reimbursement.
4.7.11.
Contrary to what VGZ has argued, the information provided by Regenboog complies, in the opinion of the Preliminary Relief Judge, with the objective and regulations of the Transparency Regulation.
4.7.12.
To substantiate its position that this is not the case, VGZ has referred to a decision of the District Court of The Hague.8 This reference is incorrect for various reasons. First of all, the point of law in that case was different from that on which a decision must now be taken. In addition, the decision concerned, among other things, a Policy Rule of the NZa that was introduced in 2014, but no longer applies since 1 February 2020. And finally, as a healthcare provider, the hospital had just informed patients in that case, as Regenboog did in this case. The court ruled that the care provider could not have done more than that, but not that this would be incorrect or unlawful.9
4.7.13.
The conclusion of the foregoing is that Regenboog has informed its patients in accordance with the Transparency Regulation.
ADHD letter
4.7.14.
On February 10, 2020, Regenboog informed VGZ why VGZ does not reimburse Regenboog's ADHD medication, while it appeared that in other cases the medication was reimbursed. The message states that, after an earlier meeting, VGZ had announced that it would provide written substantiation.
In a response on February 24, 2020, [Z] stated on behalf of VGZ that it was a special arrangement commissioned by the Ministry of Justice and that it was not a health insurance policy. The scheme was not comparable to the policy conditions of VGZ and therefore had nothing to do with the reimbursements for "regular" policyholders, according to [Z].
4.7.15.
The preliminary relief judge agrees with VGZ that it is not appropriate to send patients the ADHD letter 10 months later. Although VGZ has not provided a written substantiation, it has provided an explanation as to why certain patients have been reimbursed for ADHD medication. The claim under a. Will therefore be allowed on this point.
The preliminary relief judge sees no reason for a separate rectification.
II. Violation of GDPR
4.8.
VGZ's second accusation relates to the provision of the names and business telephone numbers of [Z] and [B] in the communication sent to Rainbow patients for this purpose.
4.9.
According to the provisions of the GDPR, personal data must be processed in a way that is lawful, fair and transparent with regard to the data subject.10 Also, such data must be collected for specified, explicit and legitimate purposes and the data may not subsequently be processed incompatible with those purposes. 11
4.10.
Unlike Rainbow, the Preliminary Relief Judge is of the opinion that it is evident that this concerns personal data within the meaning of the GDPR.12 The letters state the first name, surname and business telephone number of [Z] and [B] as well as the business e-mail address, which contains their name. Regenboog obtained these data from VGZ in the context of purchasing healthcare and concluding an agreement between VGZ and Regenboog. Regenboog processes personal data within the meaning of the GDPR by providing them to its patients by means of transmission and distribution. Rainbow states that this makes it easier for patients to obtain the correct information from VGZ. That is a completely different goal than with which [Z] and [B] provided their data to Regenboog and therefore in violation of the GDPR.
4.11.
For [Z] and [B] all this has led to the unpleasant consequence that they have received an anonymous letter at their private address from a person who writes that they are an insured party of VGZ. At the hearing they showed that letter with envelope. To them, the content of the letter has a threatening character. At the hearing, the representative of Regenboog stated that he found this very annoying, but that Regenboog did not provide those private addresses and does not even know these addresses.
The preliminary relief judge wants to assume that without question, but it may of course very well be that an insured person has searched the internet and found the address in one way or another.
4.12.
Rainbow states that patients do not receive the correct information from the customer service or general employees of VGZ. That may be the case, but it is not up to Regenboog to provide each patient with the data of employees in a general sense in advance.
It is up to VGZ to explain its reimbursement policy and not to Regenboog to choose who at VGZ should be accountable for.
4.13.
Regenboog has also argued that the data of [Z] has been mentioned in letters from Regenboog since 2017. That may be the case, but in any case this does not apply to the data of [B].
Moreover, VGZ had included the following as an additional condition 10 to the contract for 2020:
"The healthcare provider does not share contact details of employees of the healthcare insurer with insured persons of the healthcare insurer."
There is therefore no tacit or tacit consent from [Z] or [B] for the processing of their personal data.
4.14.
Finally, Rainbow pointed to an interview with De Correspondent, in which [Z] is mentioned by name and a photo of him has been printed. The fact that [Z] has apparently given permission to the journalist in question to mention his name does not of course mean that anyone else may subsequently process his personal data. The Preliminary Relief Judge will therefore ignore this referral from Regenboog.
4.15.
In view of the foregoing, it is concluded that mentioning the names of [Z] and [B] violates their right to privacy, as protected by the GDPR.
The claim under b. will therefore be awarded as well as the claim under c. on this part. [Z] and [B] stated at the hearing that they are aware that the rectification may lead to policyholders looking up the old messages and their names being brought to the fore again.
The claimed penalty will be moderate.
4.16.
The claims under b. and c. are also set by [Z] and [B] themselves. It can therefore be left open whether VGZ, as a good employer, is obliged under Article 7: 611 of the Dutch Civil Code to conduct this procedure in its own name for its employees.
III. Providing insurance advice
4.17.
The third part of the allegations is VGZ's assertion that Regenboog violates the Financial Supervision Act (Wft) by providing incorrect and unauthorized insurance advice in the Letter of Decommissioning Medication and by offering mediation in the choice of health insurance. VGZ does not dispute that Regenboog may answer a question from an individual patient about the reimbursement of certain medication provided by Regenboog to that patient.13 VGZ states, however, that the insurance advice in the Brief Phasing Out Medication is given to all patients.
For the sake of convenience and readability, the relevant quote is included again below:
“This means that the pharmacies in Bavel will not have a contract with the VGZ group from 2021.
The easiest solution to prevent this is to switch to a contracted one.
health insurer of, for example, CZ, Menzis or DSW.
Below are the possible options for continuing the care at Regenboog Apotheek and / or Tolakker Pharmacy:
You switch to a health insurer that does have a contract. Nothing will change for you and you can collect the care from the pharmacy in the same way.
Every health insurer has the same basic insurance and is legally obliged to accept you for this. Your new health insurer will also arrange everything with your old health insurer.
You take out a reimbursement policy with VGZ or Achmea. You will then be reimbursed 100% by VGZ or Achmea. With a reimbursement policy you have a free choice of care provider. You must declare the care yourself with the received invoice. A reimbursement policy is slightly more expensive than a policy in kind.
As stated, it is easiest to switch to a contracted party
health insurer. If you want help and / or support with this, you can email us free of charge to
dupon@regenboogapotheek.nl. We will then be contacted to make an optimal choice for you for the health insurer choice for 2021 (....).
NB. You may not have heard from VGZ about this yet. The reason for this is that they do not inform you, because you will then remain with VGZ. They only have to reimburse 75% of the care because it is then non-contracted care. "
4.18.
The Preliminary Relief Judge notes that the Wft regulates government supervision of financial institutions (such as banks and insurers). The law protects consumers and companies who entrust their money to these institutions. The Netherlands Authority for the Financial Markets (AFM) supervises compliance with the rules. The first question is therefore whether VGZ can invoke a violation of Regenboog of the rules of the Wft. The Wft protects the interests of patients and insured persons and not the interests of VGZ as an insurer. And it is the AFM that can take action against this.
But even if that were the case, the following applies.
4.19.
VGZ refers to the definition in Article 1: 1 of the Wft for its position on what should be understood by "advice" within the meaning of the Wft. That definition is as follows:
“(B) to recommend, in the course of a profession or business, one or more specific contracts giving rise to a premium pension claim, one or more specific insurance policies or one or more specific financial instruments to a specific client”.
In the letter, however, Regenboog does not recommend any specific insurance. Rainbow only indicates the distinction between a policy in kind and a reimbursement policy. Regenboog also points out the differences between contracted and non-contracted care. In the opinion of the Preliminary Relief Judge, Regenboog does not make a “recommendation” for one of the insurance policies. Three contracted insurers are mentioned and in the reimbursement policy even VGZ is mentioned as a possible insurer. This can hardly be regarded as unlawful towards VGZ.
4.20.
VGZ argues that insurance brokerage is also subject to a license requirement. Mediation is defined in Section 1: 1 Wft as follows:
“All activities in the exercise of a profession or business aimed at the as
intermediary to establish insurance between a client and an insurer or to assist in the management and implementation of an insurance ”
Rainbow does not mediate in this way. Its activities are not aimed at establishing insurance as an intermediary. Rainbow does not place its patients with an insurance company, as an intermediary does. After all, policyholders do not take out their insurance via Regenboog either.
4.21.
In the opinion of the preliminary relief judge, that the insurance advice is “incorrect”, as stated by VGZ, cannot be deduced from the text of the message.
The preliminary relief judge does follow VGZ in its contention that the reimbursement that insured persons receive naturally always depends on the relevant policy conditions. But if there is cover, VGZ will reimburse 75% of the costs and contracted insurers 100%. That statement is correct. The statement that a reimbursement policy is slightly more expensive than a policy in kind, but that an insured person will receive 100% reimbursement with the first policy, is also correct.
4.22.
The claim under d. will therefore be rejected.
Process costs
4.23.
Because the parties are unsuccessful on both sides, the costs of these proceedings will be compensated. This means that each party bears its own costs.
5 The decision
The preliminary relief judge:
5.1.
prohibits Regenboog from distributing factual inaccuracies to third parties (including its patients) about the reimbursement by VGZ of pharmacy-prepared ADHD medication under a special scheme;
5.2.
prohibits Regenboog from providing the personal data of employees of VGZ to third parties (including patients of Regenboog) without a basis in a manner that is not in accordance with the GDPR;
5.3.
orders Regenboog to pay VGZ a penalty of € 5,000 for each violation of the aforementioned under 5.1. and 5.2. pronounced prohibited, up to a maximum of € 150,000;
5.4.
orders Regenboog to inform each recipient to whom the personal data of [Z] and / or [B] has been provided by means of the Letter Withdrawal Medication, the Letter of ADHD Medication or the Standard Form within 14 days of service of this judgment. the fact that this personal data has been provided to them by Regenboog in violation of the GDPR and to add the following phrase in addition to this: “For questions about the reimbursement policy for pharmacy-prepared medication, we request that you do not use previously provided personal data of employees from VGZ, but we explicitly request that you contact VGZ customer service.
The telephone number for questions regarding your health insurance, reimbursement and payment is [telephone number customer service VGZ]. The other contact details and telephone numbers can be found on the VGZ website. We request that you delete the previously provided personal data of employees of VGZ ”;
5.5.
compensates the costs of this action, in the sense that each party bears its own costs;
5.6.
declares this judgment provisionally enforceable;
5.7.
declines the more or otherwise advanced.
This judgment was rendered by mr. L.J. Saarloos, Preliminary Relief Judge, and pronounced in public in the presence of the Registrar on May 25, 2021.
1
See e.g. Parliamentary questions from the SP on April 26, 2021: Parliamentary questions without answer no. 2021Z06997 | Overheid.nl> Official announcements (officielebekendmakingen.nl)
2
Antidepressant Discontinuation Syndrome
3
Article 10 paragraph 1 ECHR
4
Article 10 paragraph 2 ECHR
5
Article 6: 162 BW
6
ECLI: NL: RBGEL: 2019: 5935
7
Regulation on transparency of healthcare providers, NZa, TH / NR-018, applicable from 1 February 2020
8
ECLI: NL: RBDHA: 2018: 6611
9
Rov. 4.30 in the judgment
10
Article 5 paragraph 1, under a General Data Protection Regulation
11
Article 5, paragraph 2, letter b GDPR
12
Article 4, under 1 GDPR
13
Marginal number 76 in the summons
