While cross-border healthcare is a relatively new phenomenon, a lot has happened in the past couple decades. What started as a very limited and obscure system in the eighties has grown into something much bigger and much more accessible. Patients rights to cross- border healthcare have been significantly expanded but the underlying legal doctrine has become more and more convoluted as a result. Now, in 2016, European cross- border healthcare is governed by multiple sources of legislation.
EG Regulation 883/2004:
Originally, acquiring funding for healthcare elsewhere in Europe was only possible through an S2 or E112 form. The form relates to the Regulation on the coordination of social security systems (883/2004. Article 20 stipulates that an insured person travelling to another Member State with the purpose of receiving benefits in kind during the stay shall seek authorisation from the competent institution. At the same time, it also states that ‘The authorisation shall be accorded where the treatment in question is among the benefits provided for by the legislation in the Member State where the person concerned resides and where he/she cannot be given such treatment within a time limit which is medically justifiable, taking into account his/her current state of health and the probable course of his/her illness.’ Thus, according to the Regulation, patients who receive healthcare abroad without permission are not entitled to funding or reimbursement.
The Cases of Kohll & Decker
The cases of Kohll & Decker created a second avenue for patients towards funding for cross- border healthcare. This time by relying on the right to freedom of goods and services as guaranteed by the Article 56 of the Treaty on the Functioning of the European Union.
In both cases, the insurance companies refused to reimburse as authorization had not been granted in advance. The ECJ held that the requirement of prior authorization should be considered an infringement on the freedom of goods and services. Such violations could only be justified if:
- there is a risk of seriously undermining the financial basis of a social security system
- there is a risk to the objective of maintaining a high quality balanced medical and hospital service open to all
- there is a risk of seriously endangering maintenance of treatment capacity or medical competency on national territory
The healthcare in question was relatively simple and financially insignficant (orthodontic treatment and the purchase of spectacles, respectively). Both Kohll and Decker’s decisions to seek healthcare elsewhere in Europe did therefore not present a significant risk that could justify a breach of the freedom of goods and services.
A consolation for Luxembourg: the court decided that in the absence of prior authorization, they would only have to reimburse up to the reimbursement-rate in Luxembourg rather than the rate in the other country. This is a significant departure from the system of cross- border healthcare as originally defined in the Regulation. Not only did they (partly) waiver the requirement of prior authorization but they deviated from the reimbursent-norm as well.
In the following years, the legal doctrine established by the cases of Kohll & Decker was further expanded upon. The most important cases will now be reviewed here.
In the combined cases of Geraets-Smits v. Stichting Ziekenfonds and Peerbooms v. Stichting CZ Groep Zorgverzekeringen the courts determined that:
- the conclusions from the cases Kohll & Decker were equally applicable to the healthcare system in the Netherlands, which was a benefit-in-kind system as opposed to Luxembourg’s reimbursement system
- systems of prior authorization are justified for healthcare provided in hospitals, because it takes place in an ‘infrastructure with (…) certain very distinct characteristics, for which planning must be possible’.
In addition, the court ruled that mr. Peerbooms, who was sent abroad for treatment still considered experimental in his home country, was wrongfully denied reimbursement. The court held that his health-insurance provider should have looked at the bigger picture by also considering the international medical standards and practices rather than just the national ones.
In the van Braeckel case, the ECJ decided that a patient should never be reimbursed less than would have been the case in their home country. This also means that if a patient seeks funding under the Regulation, and the reimbursement amount turns out to be lower than would have been the case at home, that patient can seek additional reimbursement further covering the difference. Naturally, this only applies in so far any costs have actually been incurred.
In addition, if a patient seeks healthcare abroad without permission, he can still retroactively receive reimbursement if it turns out that authorization was wrongfully denied. The amount to be reimbursed is equal to that which would have been reimbursed if authorization had been granted in the first place.
In Müller-Fauré and Van Riet the court held that the existence of waiting lists in itself can not constitute a ground for refusing prior authorization for care abroad. In other words, although waiting lists may exist in order to ensure the quality and accesibility of health care for everyone, health insurance providers must always consider the situation of the individual behind the request. The mere assertion that there is a system of planning in place and that patients have to wait their turn is insufficient.
The case of Watts v. Bedford Primary Trust Care is considered to be the last in the line of jurisprudence initiated by Kohll & Decker. The Treaty was considered to be equally applicable to the United Kingdom’s national healthcare system. In combination with the existing jurisprudence, this essentially meant the treaty provisions (and thus the resulting caselaw) were now considered applicable to every healthcare system in the European Union.
But even after such a comprehensive line of jurisprudence many things were still unclear. Was it reasonable to conclude that health-insurance providers could never demand authorization for care outside a hospital, for example? Some out-patient treatments are very expensive and constitute a significant strain on a member state’s social security system. The Directive was intended to further clarify such ambiguities. In addition, many States proved unwilling to codify the case law discussed above in national law. There were concerns about the financial consequences and fear that the European Union would start interfering in national affairs. The Directive would help facilitate this process.
The Directive focused on three different elements: authorization, reimbursement and patient rights.
In accordance with the case law, the system of prior authorization was significantly constrained in comparison to its Regulation counterpart. Only in certain cases would prior authorization be required. However, the refusal of authorization is still possible if similar care in a patient’s home country can be provided within a medically justifiable time limit. The advantage for the patient here lies mainly in the fact that for some types of care, authorization is not required and thus not refusable. For all other types of care the system of prior authorization according to the Directive does not differ much from what was originally laid down in the Regulation.
The Directive also largely corresponds to the caselaw with regard to the element of reimbursement. Claiming compensation through the Directive will lead to reimbursement for the going funding/reimbursement tarif in a patient’s home country. Insurers are free to compensate patients any outstanding differences, but they are not obliged to do so.
Lastly, the Directive solidified patients’ rights in several areas such as the right to transparent and accessible complaints procedures and the right of privacy of medical records. But perhaps more importantly, the Directive recognizes that lack of information is a major obstacle to the accessibility of cross- border healthcare. Article 6 requires Member States to create national contact points in order to provide patients with “information concerning healthcare providers, including, on request, information on a specific provider’s right to provide services or any restrictions on its practice, information referred to in Article 4(2)(a), as well as information on patients’ rights, complaints procedures and mechanisms for seeking remedies, according to the legislation of that Member State, as well as the legal and administrative options available to settle disputes, including in the event of harm arising from cross-border healthcare.”
The relationship between the regulation and the Directive is somewhat confusing. It is important to remember that the Directive does not invalidate the Regulation in any way: the two co-exist and represent two different avenues for seeking cross border healthcare. They should however not be seen as completely separate sources of legislation. It is possible to invoke certain rights anchored in the Directive even when claiming compensation through the Regulation, for example.
The Regulation is in itself a binding piece of legislation: one that patients can directly invoke. The Directive on the other hand is not as it merely obligates European member states to achieve certain goals and objectives. How they achieve said goals and objectives is entirely up to them. This means that when you seek reimbursement under the ‘Directive route’, you are actually invoking national law which has been harmonized in compliance with the Directive. Although most member states are seemingly in compliance, the ECJ may yet decide that certain aspect are not yet (fully) in line with European requirements.