Patient mobility in the Internal Market

1. Patient mobility in the Internal Market Lessons learnt from the judgements of the ECJ. Views and perspectives  Willy Palm, AIM Director Brussels, 28 June 2005

2. �Another piece of Europe in your pocket�

4. Foreign EU patients treated annually (2000, 2001) A recent Commission paper, still shows relatively small numbers of patients being treated in another MS as well as a low financial impact. It is even striking that not all MS were able to provide figures, and the reliability of those who did can be questioned. So why then all the fuss about patient mobility? Why a MS so reluctant in opening the borders for their patients and reimburse their treatment abroad? A recent Commission paper, still shows relatively small numbers of patients being treated in another MS as well as a low financial impact. It is even striking that not all MS were able to provide figures, and the reliability of those who did can be questioned. So why then all the fuss about patient mobility? Why a MS so reluctant in opening the borders for their patients and reimburse their treatment abroad?

5. Health systems and EU law

6. Health systems and EU law

7. Health systems and EU law

8. Social security coordination EC Regulations 1408/71 and 574/72: recently modernised by EC Regulation 883/2004 Care which become necessary on medical grounds during their stay (E111 - EHIC), taking into account the nature of the benefits and the expected length of the stay. Prior authorisation (E112)

9. The EHIC is not a �free ticket to ride�!

10. Requests and authorisations for care abroad annually (2000, 2001)

11. Health systems and EU law

12. The cases Kohll and Decker

13. Association Internationale de la Mutualit� Basic principles of the ECJ rulings Social security and health care are competence of Member States but does not preclude respecting Community law Free movement of goods and services applies to health care, regardless of the type of care (in- or outpatient) and the type of coverage (reimbursement � benefits in kind) Prior autorisation is an obstacle to free movement Can be justified to: Preserve the financial equilibrium of the social security system Maintain a balanced medical and hospital service and accessible to all Maintain medical capacity and expertise on the national territory, essential for public health As far as It is necessary and proportional The criteria used are objective and non discriminatory In its judgements so far, the Court of Justice made clear some essential principles. 1) Even if social security and health care are to be regarded as national competences, this does not preclude Member States while using this competence from respecting fundamental Community law. 2) The provision of healthcare services and goods is an economic activity and therefore is falling within the scope of free movement, irrespective of the type of care (in- or outpatient) and the type of coverage (reimbursement � benefits in kind) 3) Consequently, submitting the coverage of health care purchased in another MS to prior authorisation is discouraging patients to seek care in another MS and therefore is an obstacle to free movement. 4) Under certain circumstances such an obstacle can be justified. According to the Court this could be the case if upholding prior authorisation is proven to be necessary: For preserving the financial balance of the system For maintaining a balanced medical and hospital service which is accessible to all Or for maintaining medical capacity and expertise on the national territory, which is essential for public health 5) But even then, MS need to show that their prior autorisation system is proportional to the goal to be achieved and that it is based on criteria wich are both objective and non discriminatory.In its judgements so far, the Court of Justice made clear some essential principles. 1) Even if social security and health care are to be regarded as national competences, this does not preclude Member States while using this competence from respecting fundamental Community law. 2) The provision of healthcare services and goods is an economic activity and therefore is falling within the scope of free movement, irrespective of the type of care (in- or outpatient) and the type of coverage (reimbursement � benefits in kind) 3) Consequently, submitting the coverage of health care purchased in another MS to prior authorisation is discouraging patients to seek care in another MS and therefore is an obstacle to free movement. 4) Under certain circumstances such an obstacle can be justified. According to the Court this could be the case if upholding prior authorisation is proven to be necessary: For preserving the financial balance of the system For maintaining a balanced medical and hospital service which is accessible to all Or for maintaining medical capacity and expertise on the national territory, which is essential for public health 5) But even then, MS need to show that their prior autorisation system is proportional to the goal to be achieved and that it is based on criteria wich are both objective and non discriminatory.

14. Patient mobility Prior authorisation is justified: importance of hospital planning to guarantee rationalised, stable, balanced and accessible supply of quality care Can only be refused if same or equally effective treatment is available without undue delay in a contracted estalishment Undue delay: take into account actual medical condition (incl. degree of pain and nature of disability) and medical history Prior authorisation is not justified: no spectacular increase of cross-border mobility to be expected Cover remains subject to levels and conditions as defined by the home state Member States are allowed to fix reimbursement amounts to which cross-border patients are entitled (provided they are based on objective, non-discriminatory and transparent criteria) On this very basis, the Court accepted that prior authorisation could be justified for hospital care, since it involves the allocation of important resources which are subject to a national planning policy. However, the ECJ made clear that even then authorisation could only be refused if the same or an equally effective treatment would be available at home within undue delay, taking into account the medical record of the person in question. The sole existence of waiting lists was not considered to be a sufficient reason for denying the right to seek treatment in another MS. For out-patient care the Court considered that basically no reasons could justify prior authorisation, if treatment abroad was to be reimbursed according to the same levels and conditions as applied at home. Nonetheless, it seems that the Court would accept that lower reimbursement tariffs apply for XBC than for contracted providers at home, as long as they are based on objective and non-discriminatory criteria. Even if the case-law has been clarified over time, a lot of MS still fail to adapt their administrative practice. The Commission has already initiated an infringement procedure against France for not complying to the jurisprudence of the Court. But, especially MS with a national health service still deny the application of the principles set out by the Court. On this very basis, the Court accepted that prior authorisation could be justified for hospital care, since it involves the allocation of important resources which are subject to a national planning policy. However, the ECJ made clear that even then authorisation could only be refused if the same or an equally effective treatment would be available at home within undue delay, taking into account the medical record of the person in question. The sole existence of waiting lists was not considered to be a sufficient reason for denying the right to seek treatment in another MS. For out-patient care the Court considered that basically no reasons could justify prior authorisation, if treatment abroad was to be reimbursed according to the same levels and conditions as applied at home. Nonetheless, it seems that the Court would accept that lower reimbursement tariffs apply for XBC than for contracted providers at home, as long as they are based on objective and non-discriminatory criteria. Even if the case-law has been clarified over time, a lot of MS still fail to adapt their administrative practice. The Commission has already initiated an infringement procedure against France for not complying to the jurisprudence of the Court. But, especially MS with a national health service still deny the application of the principles set out by the Court.

15. Draft Directive on services in the Internal Market Scope: healthcare = service? Free establishment of service providers (permanent) Prohibited requirements (art. 14) Requirements �to be evaluated� (art. 15): mutual evaluation method Free Service provision (temporary) Country of origin principle (art. 16-19) Assumption of medical costs in another Member State (art. 23)

16. Assumption of health care costs (art. 23) Non-hospital health care: not to be made subject to authorisation if covered under own social security system conditions and formalities apply as in home state (e.g. referral, terms relating to dental care) Hospital care = medical care which can only be provided in a hospital since it requires accommodation, is highly specialised or presents a manifest risk to the patient: authorisation is allowed if in conformity with general authorisation scheme conditions of the Directive authorisation cannot be refused if: treatment is covered in home state treatment can not be given within a medically justifiable time-limit Level of reimbursement: not less than that provided for by own social security system in respect of similar care provided on its territory Like the Court rulings, this article 23 makes a distinction between hospital care and non-hospital care. Social security schemes can not make reimbursement for non-hospital care which is provided outside its territory, subject to the condition of prior authorisation, as long as the service fall within their covered package. Same conditions and formalities apply as in home state: this means that reimbursement is according to the own tariffs and that if for instance a referral is requested from a GP, this condition should also be respected by the patient seeking care abroad. For hospital care, autorisation is in principle still allowed, as long as it respects certain general conditions mentioned in the Directive and applicable to all kind of authorisation systems for service providers. In any case prior autorisation for hospital care can not be refused if the treatment is also covered at home and it can not be given there within a medically justifiable time-limit (in other words, if waiting lists prevents patients from having care within reasonable time according to their specific clinical condition). Contrary to the ECJ, art. 23 also defines hospital care (= medical care which can only be provided in a medical infrastructure). The Commission seems to forget here that this is different in every country: for instance in the Netherlands most of child deliveries are done at home, whereas in Belgium almost all are done in hospital). Finally the article states that the reimbursement can not be less that the level applied at home At least on this aspect, the Directive seems to go further than what the ECJ decided. Indeed in M�ller-Faur� the Court stated that Member States are allowed to fix specific reimbursement amounts for care to which cross-border patients are entitled (as long as they are based on objective, non-discriminatory and transparent criteria). This implies that it can be less than contracted providers at home.Like the Court rulings, this article 23 makes a distinction between hospital care and non-hospital care. Social security schemes can not make reimbursement for non-hospital care which is provided outside its territory, subject to the condition of prior authorisation, as long as the service fall within their covered package. Same conditions and formalities apply as in home state: this means that reimbursement is according to the own tariffs and that if for instance a referral is requested from a GP, this condition should also be respected by the patient seeking care abroad. For hospital care, autorisation is in principle still allowed, as long as it respects certain general conditions mentioned in the Directive and applicable to all kind of authorisation systems for service providers. In any case prior autorisation for hospital care can not be refused if the treatment is also covered at home and it can not be given there within a medically justifiable time-limit (in other words, if waiting lists prevents patients from having care within reasonable time according to their specific clinical condition). Contrary to the ECJ, art. 23 also defines hospital care (= medical care which can only be provided in a medical infrastructure). The Commission seems to forget here that this is different in every country: for instance in the Netherlands most of child deliveries are done at home, whereas in Belgium almost all are done in hospital). Finally the article states that the reimbursement can not be less that the level applied at home At least on this aspect, the Directive seems to go further than what the ECJ decided. Indeed in M�ller-Faur� the Court stated that Member States are allowed to fix specific reimbursement amounts for care to which cross-border patients are entitled (as long as they are based on objective, non-discriminatory and transparent criteria). This implies that it can be less than contracted providers at home.

17. Scope Services Directive

18. Scope Services Directive

19. Scope Services Directive

20. EHIC - Care which becomes medically necessary during their stay: if covered under the delivering-state system E112 - prior autorisation cannot be refused if: treatment is covered in home state treatment can not be given within a medically justifiable time-limit �as if (s)he was affiliated in the state delivering treatment� Providing state tariff Conditions and formalities of the delivering state Financial settlement between States Non-hospital health care: if covered under the home-state system Hospital care: assumption cannot be refused if: treatment is covered in home state treatment can not be given within a medically justifiable time-limit �as if (s)he received the treatment in the home state� Not less than home state tariff Same conditions and formalities apply as in home state Payment up-front � ex post facto reimbursement With the formalisation of the European jurisprudence in the draft service Directive, two distinctive procedures exist for covering health care provided in another MS. In fact, the rules of the European rules of social security coordination were never challenged before Court, only the national ones. The European Commission stresses that there is complete coherence between the new Regulation on social security coordination and art. 23 of the Service Directive. However, as is shown on this slide, the only point where there is conformity is the conditions under which autorisation cannot be denied. Where art. 23 completely evacuated prior autorisation for ambulatory care, it might still be required under the social security Regulation if a patient would deliberately go to another MS for ambulatory care. The choice for one of both procedures is however determining the level and way of reimbursement. Where under art. 23 Service directive the home state tariff and package applies, under the coordination Regulation the tariffs of the MS of stay applies. A patient can even be covered for a service which is not covered at home. Finally, he can also benefit from settlement between MS whereas under art. 23 he needs to advance the total bill before being reimbursed at home. All this is not likely to improve clarity. It could have been much more clear if attempts would have been made to integrate the jurisprudence of the Court directly into the social security Regulations. But MS refused that, even though they seem not so happy either with the current situation. With the formalisation of the European jurisprudence in the draft service Directive, two distinctive procedures exist for covering health care provided in another MS. In fact, the rules of the European rules of social security coordination were never challenged before Court, only the national ones. The European Commission stresses that there is complete coherence between the new Regulation on social security coordination and art. 23 of the Service Directive. However, as is shown on this slide, the only point where there is conformity is the conditions under which autorisation cannot be denied. Where art. 23 completely evacuated prior autorisation for ambulatory care, it might still be required under the social security Regulation if a patient would deliberately go to another MS for ambulatory care. The choice for one of both procedures is however determining the level and way of reimbursement. Where under art. 23 Service directive the home state tariff and package applies, under the coordination Regulation the tariffs of the MS of stay applies. A patient can even be covered for a service which is not covered at home. Finally, he can also benefit from settlement between MS whereas under art. 23 he needs to advance the total bill before being reimbursed at home. All this is not likely to improve clarity. It could have been much more clear if attempts would have been made to integrate the jurisprudence of the Court directly into the social security Regulations. But MS refused that, even though they seem not so happy either with the current situation.

21. Regulatory framework for financial coverage of cross-border care

22. Conclusions Integration art. 23 in Reg. 883/2004? Subsidiarity of EHIC procedure? Distinction between occasional and planned care blurred Reversed discrimination From coordinating social security rights to coordinating health systems (reference centres, border regions) Framework for cross-border contracting

23. Title of the project is �The future of patients in Europe�. Other partners are: the IESE Business School in Barcelona, the European Observatory on healthcare systems, the London School of Hygiene and Tropical Medicine, the LSE Health and Social Care, the Observatoire social europ�en, the Universities of Ghent and Antwerp, the Centre for Cross Border Studies in Belfast, the Institute of Public health in Slovenia and Praxis in Estonia.Title of the project is �The future of patients in Europe�. Other partners are: the IESE Business School in Barcelona, the European Observatory on healthcare systems, the London School of Hygiene and Tropical Medicine, the LSE Health and Social Care, the Observatoire social europ�en, the Universities of Ghent and Antwerp, the Centre for Cross Border Studies in Belfast, the Institute of Public health in Slovenia and Praxis in Estonia.