Healthcare

The Wet toetreding zorgaanbieders governs entry to the Dutch care market. A care provider subject to the notification requirement notifies before it starts to provide care. Providers that meet the statutory criteria also require an admission licence before providing care; this includes providers of medical specialist care and, subject to exceptions, providers of care under the Zorgverzekeringswet or the Wet langdurige zorg. Depending on the nature and scale of the care, requirements for independent internal supervision and annual public accountability also apply.

The transactional consequence is that the regime attaches to the care provider, in practice usually a legal entity, rather than to the business as such. In a share deal the entity that holds the admission licence and made the notification is the entity being acquired, so the position continues, although applicable changes must be notified and the licence conditions continue to apply under new ownership. In an asset deal, in a carve-out, or wherever a new entity is inserted to hold the activity, that entity is a new entrant and needs its own notification and, where the criteria are met, its own admission licence before care is provided. Legal mergers, demergers and group reorganisations raise the same question, and we establish the position for every entity in the structure at the outset rather than at closing.

The Wet marktordening gezondheidszorg, the WMG, gives the Nederlandse Zorgautoriteit a role that has no parallel in most sectors. Alongside its regulation of tariffs and performance descriptions, its transparency requirements and its supervision of the care markets, the NZa operates a sector-specific concentration review: a concentration involving a care provider that ordinarily has fifty or more persons providing care requires the approval of the NZa before it is implemented, irrespective of turnover. The assessment is largely procedural, addressing whether staff, client councils and other stakeholders have been involved, what the concentration means for the provision of care, and whether the continuity of essential care is secured.

That approval requirement sits alongside ordinary merger control. The general turnover thresholds of the Mededingingswet apply to care providers, so a transaction can require NZa approval while remaining outside merger control altogether. This test is regularly overlooked in practice, particularly on smaller practice acquisitions where the parties assume that no approval is needed. Establishing whether it is triggered belongs in the first week, because it determines the signing to closing period rather than the documentation.

The Wet BIG registers individual practitioners, protects professional titles, reserves certain procedures to registered practitioners and subjects them to disciplinary law. A registration attaches to the person and not to the practice, so no transaction transfers it. Where the value of a target depends on a small number of practitioners, as it usually does in clinics and single-site practices, the retention, roll-over and restraint arrangements carry more weight than the warranty package. The engagement model is equally material, since practices commonly work with both employed and self-employed practitioners and the rules on the qualification of self-employed engagements are enforced.

Quality and governance obligations run in parallel. The Wet kwaliteit, klachten en geschillen zorg imposes, among other things, a duty to provide good care, a complaints and disputes scheme and the reporting of calamities to the Inspectie Gezondheidszorg en Jeugd. The Governance Code Zorg binds providers affiliated with the sector organisations and sets out expectations on matters including internal supervision, conflicts of interest and stakeholder involvement. The Wet medezeggenschap cliënten zorginstellingen gives client councils rights in relation to a merger or a change in control, and works council consultation under the WOR applies in the usual way. Both processes tend to determine the timetable, and both feature in the NZa's assessment.

• Profit distribution in healthcare is category-dependent. The applicable rules can affect which activities sit in which entity and how management, service, property and financing arrangements within a group are structured. Those arrangements should be assessed alongside the provider's care activities and funding position.
• Ownership of care providers by private equity and other institutional investors receives sustained parliamentary and ministerial attention, particularly in general practice and dental care. We build the possibility of regulatory change into the structure and risk allocation rather than assuming that the framework will remain unchanged throughout the investment.
• Patient data is special category data under the GDPR and is also covered by medical professional confidentiality, so due diligence proceeds on aggregated or anonymised material. The medical treatment agreement rules in the Dutch Civil Code, including the retention of records, mean that a share deal leaves the treatment agreements and the records with the same legal entity. In an asset deal, the transfer of the practice and the associated records requires a carefully sequenced approach to professional confidentiality, privacy and patient communication.
• Premises are frequently a material part of the transaction. Clinics, practices and care homes are commonly leased rather than owned, and such premises generally fall under the lease regime for other business premises rather than the retail regime, with correspondingly limited protection against eviction. Change-of-control and consent provisions in leases, the separation of care and accommodation in long-term care, and the position of any specialised healthcare property investor as landlord are established in diligence.
• The buy-and-build model is common in Dutch dental, ophthalmology, physiotherapy and elderly care, and veterinary practices are frequently pursued on a comparable thesis, although they sit outside the healthcare statutory regimes and are regulated under animal health legislation and veterinary disciplinary law.
• Share transfers in BVs require a notarial deed (art. 2:196 DCC), and employees within a transferring undertaking pass to the buyer by operation of law under the transfer of undertaking rules, which is a live point where a practice is acquired as a business rather than as a company.