Dutch regulator wants better functioning markets for IT-healthcare

The Authority for Consumers & Markets (“ACM”) has made several suggestions with its new draft Guidance regarding “Well-functioning markets for healthcare IT” (“Draft Guidance IT-Healthcare”).[1] Amongst them are no impediments for data exchange, no abuse of vendor lock-in, room for collaboration between healthcare providers in procurement and the use of standards.

The market for IT-Healthcare has featured on the ACM’s agenda for a long time. The ACM started a market survey in 2021, held several meetings with companies who are active in the market for IT-healthcare and also received several signals. All of this indicated that healthcare providers are often too dependent on their IT supplier as many IT-systems can only interact with other IT systems of the same IT supplier. This results in a situation where healthcare providers cannot exchange data with each other when they don’t use the same IT systems. There are also difficulties in exchanging data from one IT system to a new IT system (of a different supplier). This dependence generates a high risk of a vendor lock-in, meaning that a healthcare provider becomes too dependent on his IT supplier  as switching to a different IT supplier would incur significant costs. This dependence could be abused by IT companies that have a dominant position in the market which is prohibited under competition law.

With the Draft Guidance IT-Healthcare, the ACM hopes to provide clarity on competition rules and offer certainty to both IT suppliers and healthcare providers in order to create a well-functioning market for IT-healthcare. Although the Draft Guidance focuses on IT-systems for hospitals, it can have implications for all IT systems for primary healthcare. Interested parties can give their view on the Draft Guidance IT-Healthcare until 26 August 2022.

In addition to rules of conduct for healthcare IT vendors, the Draft Guidance also explains which forms of cooperation between healthcare providers are allowed to increase their countervailing power, e.g., by collaborative procurement. The ACM also indicates that any agreements between market participants regarding technical solutions, uniform language, and standards that promote the interoperability of healthcare IT systems and the digital exchange of data, are generally allowed.

The ACM mentions that its attention to IT in healthcare is part of ACM’s focus area, ‘The Digital Economy’. The problems that the ACM addresses in the market for IT-healthcare might be addressed by the proposed Regulation on harmonised rules on fair access to and the use of data (“Data Act”). The purpose of the Data Act is to create a fair digital environment, make data more accessible for all and enable data-driven innovations. It is therefore expected that the Data Act will make the exchange of data from one IT system to a new IT system possible.

For more information, please contact Pauline Kuipers and Reshmi Rampersad

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