Commission: Member States must pay for health tourism of patients

News @ European Scrutiny Committee. The Commission has recently adopted a proposal for a Directive on the application of patient’s rights in cross-border healthcare as part of the ‘Renewed Social Agenda’ which has been considered to promote “health tourism.” The Commission proposal will interfere with Member States’ responsibilities in organising and delivering health services and medical care and will put the financial stability of the NHS at risk.

The European Court of Justice (ECJ) has been ruling that patients have the right, under the EC Treaty, to seek healthcare within the EU and be reimbursed with healthcare costs received abroad that they would have been entitled to receive at the Member State of affiliation (country where the patient is an insured person). According to the ECJ, the requirement of prior authorisation for reimbursement of a patient’s costs for treatment received in another Member State represents a barrier to the freedom to provide services. The Commission has been inspired by ECJ case law. The Commission has pointed out that “the uncertainty about the general application of rights to reimbursement for healthcare provided in other Member States is creating obstacles to the free movement of patients and of health services more generally in practice.”

Consequently, the Commission has addressed the issue of reimbursement of the cost of healthcare provided in other Member States in its draft proposal. The Commission’s proposal would allow patients to seek healthcare in another Member State which would have been provided at home and then be reimbursed the costs of anything up to the full amount that would have been paid if they have had received that treatment at home. Under Article 6 (1) of the draft proposal, the Member States of affiliation would be required to ensure that their patients seeking to receive healthcare provided in another Member State would not be prevented from receiving it. However, it is not clear what it would be the scope of such duty of the home state or whether it is enforceable. According to the European Scrutiny Committee (ESC) “… it is not apparent that the duty is limited to events within the home State, or that the home State has any power to require healthcare providers in another State to treat a patient.” The ESC has expressed doubts over home State ability to ensure that the patient is not prevented from receiving the treatment in question.

The Commission has asserted that a prior authorisation requirement on cross-border non-hospital care represents an obstacle to the free movement of health services which is not justified. The Commission has pointed out that the absence of a prior authorisation requirement will not undermine the financial equilibrium of social security systems or the organisation, planning and delivery of health services if the reimbursement of cross-border non-hospital care is within the limits of the cover guaranteed by the sickness insurance scheme of the Member State of affiliation.

Under the Commission draft proposal, patients would be allowed to seek non-hospital care in another Member State and Member States would no longer be able to require prior authorisation. A Member State would not be obliged to reimburse treatment provided in another Member State which is not offered by its own national health system. In concerns over hospital care, Member States would be allowed to introduce a prior authorisation scheme for reimbursement. However, Member States must provide evidence that due to the implementation of the Directive, the outflow of patients is likely or that it seriously undermines the financial balance of the social security system or the planning of hospital capacity. Nevertheless, if a Member State has established a system of prior authorisation for assumption of costs of hospital care provided in another Member State, the costs of such care should also be reimbursed by the home Member State up to the level of costs that would have been taken had the same treatment been provided at home. Moreover, the Commission believes that the absence of a common definition of what constitutes hospital care throughout the different health systems in the EU represents an obstacle to the freedom for patients to obtain healthcare services. Hence, unsurprisingly, the Commission has introduced a Community definition of hospital care which is “treatment that requires at least one night of stay in a hospital or clinic” and treatment that requires the use of highly specialised and cost-intensive medical infrastructure or medical equipment. The Commission will, through the comitology procedure, define a regularly updated technical list of such treatments. In fact, under the draft proposal a lot of room is left to comitology, a process which will diminish Member State control over the content of such measures.

It is clear that the Draft Directive would make it much more difficult for the Member States to require prior authorisation for reimbursement of hospital treatment provided in another Member State. Dawn Primarolo, the Minister of State at the Department of Health, has said to the European Scrutiny Committee “The current proposal allows Member States to put in place a system of prior authorisation for hospital care … However, the Directive tries to limit the circumstances in which prior authorisation for treatment abroad will be permitted.” According to the Government, “it is imperative that the home Member State retains responsibility for deciding entitlement to healthcare and that Member States can put in place a system of prior authorisation where necessary for their system.” Hence, the Government “will be seeking to protect this principle during negotiations.”

Through the proced ure of prior authorization, healthcare systems can supervise their finances and organize their delivery of services so that the Commission proposal will have a negative impact on the right of a Member State to organise and finance their health services.

Under the draft proposal, the home state is entitled to impose on a patient seeking healthcare provided in another Member State its general requirements, criteria for eligibility and administrative formalities for receipt of healthcare and reimbursement of healthcare costs, as it would impose if the same treatment was provided at home – providing that such conditions are necessary, proportionate and are not discretionary and discriminatory. Member States would be required to establish national contact points for cross-border healthcare to provide patients information on their right to seek care within the EU. The draft Directive creates further bureaucratic and administrative burdens for health systems. According to Euractiv a Member State representative has said “It is justifiable to ask how big the administrative burden will be compared to the number of people actually crossing borders to seek care and to calculate how much tax payers' money is spent on maintaining an administration to serve those few.” It remains to be seen what will come out from the negotiations but it is noteworthy that the UK cannot veto the proposal as QMV is required at the Council. The draft Directive would be adopted through the co-decision procedure. It has been foreseen that long and fierce discussions at the Council and with the European Parliament will ensue.

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