After the 2020-2022 assessment report published by the Conseil national de l'ordre des médecins ("CNOM"), it's the assessment report by the Ordre national des chirurgiens-dentistes ("CNOCD") that has caught our attention. The CNOCD has just published an assessment of its practices in terms of monitoring the application of the anti-cadeau law.

This document, which has been awaited since the entry into force of the new framework for benefits stemming from the January 19, 2017 order on benefits offered by persons manufacturing or marketing health products or services, sheds some welcome light on the Ordre's practice in this area.

We're also looking to the ARS for publications.

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CNOCD report on the evaluation of agreements under the "framework of benefits" system

The awareness and compliance of the dental sector over the last two years is particularly evident in the significant increase in the number of files submitted and processed by the CNOCD since 2020, rising from 230 files submitted in 2020 to over 5,000 in 2022.

In its first assessment of the assessment of the files submitted to it, the CNOCD confirms the trends observed in practice:

• Most interaction is with healthcare professionals, and virtually none with students,

• A significant increase in the number of space purchase or rental agreements submitted for scientific events,

• On the appraisal of submitted files :

While the CNOCD reports the number of agreements submitted under the declaration procedure that have been the subject of recommendations, it does not specify the number of cases handled by its departments.  

On the other hand, it would appear that almost all the applications submitted under the authorization procedure have been examined and given express authorization. However, there were more than 120 refusals for 2022, but no information is provided on the main reasons for refusal.

CNOCD notes difficulties in applying the system

The CNOCD reports on the difficulties encountered in applying the system:

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Determining the competent authority in the case of indirect beneficiaries, particularly when the benefit is granted through associations

The CNOCD is not surprised to highlight the difficulties encountered in identifying the final and indirect beneficiaries of agreements signed with associations. In addition, the CNOCD reports difficulties in determining its competence to rule on agreements concluded with associations when an indirect beneficiary is identified.

In this context, we have been advised to proceed on a case-by-case basis, taking into account the importance of the benefits received by the association and by the indirect beneficiary healthcare professional, and to specify that we only consider ourselves competent when the benefits granted to the association are negligible in comparison with those granted to the indirect beneficiary healthcare professional. In other cases, the agreement is referred to the ARS with territorial jurisdiction. This position reflects the desire not to render the jurisdiction of the ARS devoid of substance, and the practical consideration that communication between authorities is not necessarily easy.

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Incomplete compensation information in agreements

The CNOCD also highlights theinadequacy of information on remuneration. Remuneration amounts are expressed net, with VAT and URSSAF contributions added.

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Determining the date on which the benefit is granted and the applicable submission deadline

After pointing out, with regard to reporting procedures, that article R. 1453-15 of the CSP stipulates that the agreement must be "transmitted (...) by tele-procedure no later than eight working days before the day on which the benefit is granted", the CNOCD points out the difficulty of determining the date on which the benefit is granted, and hence the date on which the agreement is filed, when the benefit is granted in cash, such as payment for a service.

The position adopted by the CNOCD is to consider that the granting of one or more cash benefits is constituted by the payment of the sums specified in the agreement.

However, the CNOCD points out that a contrary position has been taken, or has implicitly resulted from the stipulations of a majority of agreements, which consider that the granting of a cash benefit takes place at the time when the beneficiary achieves the consideration justifying the granting of the benefit in the case of a remuneration; an approach which seems to us to be the most relevant and which argues in favor of the legal security of operators who will have submitted their agreement before the achievement of the event subject to the remuneration, which will take place once the service has been performed.

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Clarification of the grounds for accepting urgency

The CNOCD notes that urgency is generally not justified or is the result of negligence on the part of the applicant when the application is filed as a first intention by a new applicant. This is the main reason for refusing applications submitted under this procedure.

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The relevance of the thresholds set by the order of August 7, 2020

Finally, on the question of the thresholds set by the Order of August 7, 2020, above which an agreement under article L. 1453-8 of the CSP stipulating the granting of benefits is subject to authorization, the CNOCD considers that the current amounts strike a relatively satisfactory balance between the need to subject operations of greater value to authorization and the need for the players in the system.

While he has no position on raising fees or hospitality, he is not in favor of lowering them, as this could prove too rigid.

On the other hand, the CNOCD provides us with no information either on the content of these agreements, or on the main reasons for refusal, which is regrettable.

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