EU tables weakened cross-border healthcare directive

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A Commission proposal published yesterday (2 July) to make it easier for citizens to seek care abroad could see its effectiveness limited after new clauses were introduced. These would allow member states to require patients to get prior authorisation for foreign hospital care and pay upfront themselves.

After repeated delays and lengthy internal consultations, the Commission finally published its proposal for a Directive on the application of patients’ rights in cross-border healthcare on 2 July 2008. 

Overall, the directive is set to clarify the right of patients to seek health care in another EU country while being reimbursed by their national system.

The stated aims of the proposal are three-fold:

  • To help patients exercise their rights to access cross-border care;
  • to give people assurances about safety and quality of cross border care, and;
  • to help national health systems cooperate to achieve economies of scale.

The proposal, once adopted, would give EU citizens the right to seek non-hospital care, such as dental care, visits to the optician or medical consultations, in another member state without prior authorisation. The patient would need to pay for the care first and then seek reimbursement from his statutory national system. The reimbursement will be made for costs of care which, had they been provided on national territory, would have been paid for by the social security system.

As for hospital care, which according to the Commission is defined as requiring at least one night of hospitalisation, member states may put in place a system of prior authorisation for reimbursement in two cases. First, if the care could have been provided and reimbursed in the home country and second, if the outflow of patients is such that it puts in risk either the finances of the national social security systems or the planning of hospital capacity. 

In early drafts of the proposal, patients did not need prior authorisation from their national systems either for hospital or non-hospital care. However, the Commission felt that such a proposal would not gather enough support from the European Parliament or the Council to be finally adopted. 

The draft directive asks member states to establish national contact points for cross-border healthcare and provide citizens with information on their right to seek care abroad. It also states that non-nationals enjoy the same rights regarding access to care as nationals and thus prohibits any discrimination based on nationality  or indeed any other grounds.

Regarding the enhancement of cooperation between EU-27 national health systems, the draft proposes mutual recognition of prescriptions issued in another member state and the establishment of European reference networks of care providers in order to allow access to specialised care for all and develop economies of scale. Member states are also expected to enhance cooperation on eHealth by adopting measures to make healthcare ICT systems interoperable and share their efforts regarding the management of new health technologies, including health technology assessment (HTA).

Pascal Garel, the chief executive  of the European Hospital and Healthcare Federation (HOPE), is happy that the proposal is finally on the table and no longer in Commission corridors. He pointed to a number of potential problems in the proposal, namely the definition of hospital and non-hospital care, which varies from one country to another and could lead to problems as regards the need for prior authorisation.

He said the concept of continuity of care also needs better articulation and member states should be careful what they communicate to citizens in this regard. "The more precise the information, the better," said Garel. He also noted that the proposal's aim to provide citizens the opportunity to make informed choices is somewhat problematic as a lack of comparable EU level information on quality and safety data prevents such informed decisions.

In addition, he noted that equal access to care abroad will be compromised by the need for a patient to pay for the care first from his own pocket before being able to seek reimbursement. 

In this regard, according to the Commission, nothing in the draft directive prevents member states from setting up schemes that would pay the costs of care upfront if they want to. 

Finally, Pascal Garel believes that the new directive will introduce a lot of new administrative burdens. He also thinks it will not bring an end to court cases on the issue. On the contrary, the proposal could lead to an increased number of different types of cases unless member states establish extremely clear rules on the prior authorisation and conditions for reimbursement.

member state representative noted that the draft had clearly improved from its earlier versions, as the member state's right to establish a prior authorisation system for hospital care was now clearly stated. However, he noted that it was important to leave the definition of hospital and non-hospital care to member states. 

He also argued that the proposal as such would considerably increase the administrative burden of member states. "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," he added.

As for the European Parliament's political groups, the Liberals and Democrats (ALDE) regard the proposal as "a first important step toward a free European patient area". 

"Although it will not create new entitlements, this directive will make it easier for patients to exercise their rights and will ensure equal access to cross-border healthcare. For Liberals and Democrats, this long-overdue directive is a step towards the free movement of patients - a step we hope to make before the end of the Parliament's mandate," said ALDE Group Leader Graham Watson

Meanwhile, the Greens/European Free Alliance has a rather different view on the proposal. "The draft proposal is not as positive as it might seem at first sight. Without doubt, there is a need for action concerning the legal right to reimburse treatment received abroad. However, while travelling to another member state might be an option open to some individuals, increased mobility is not a panacea that will ensure quality treatment for all patients. The proposal must be considered in the wider context of the privatisation of public healthcare. Positive sounding labels like "mobility" and "choice" must not be allowed to mask a potential liberalisation of healthcare services. We are at serious risk of seeing the market take over and undermine national systems," argued UK Green MEP Jean Lambert

The Confederal Group of the European United Left/Nordic Green Left argued that all issues addressed by the draft directive "must be solved within the existing framework of the coordination of social security schemes (Regulation 883/2004/EC). There is no need for a new directive based on an internal market approach to health care. We strongly oppose the re-introduction of 'Bolkestein' through the backdoor". 

The European Public Health Alliance (EPHA) said it welcomes any Commission initiative "that would work to strengthen patients' rights and provide greater clarity on access to health services in Europe". The alliance calls on the Commission "to ensure that any proposal is in line with the common values and principles in health systems agreed by member states in 2006, and stresses the need to respect the principles of the universality of health services, access to good quality care, equality and solidarity." EPHA also welcomes a proposal that "would support member states in addressing existing inequalities within health systems". 

The European Consumers Organisation (BEUC) particularly welcomes the establishment of national contact points "that will provide patients with information on essential aspects of cross-border health care, including procedures, reimbursements and means of redress in case of harm". However, the organisation urges further discussions on the system for prior authorisation for hospital care as "it must not lead to confusion and increased inequalities between the member states". 

The European Hospital and Healthcare Employers' Association (HOSPEEM) argues that draft Directive goes "beyond the rulings of the ECJ, by making it very difficult for the member states to ask for prior authorisation for hospital treatment abroad". This could, according to the association have "serious consequences" for the organisation, financing and delivery of healthcare in EU-27. Therefore, HOSPEEM believes that "patients should be required to go through prior authorisation procedures in their home country before seeking hospital care abroad and asking to be reimbursed for this care." 

The European Patients' Forum, an EU patient lobby, calls on the Commission and member states to ensure that "efficient administrative mechanisms for swift reimbursement are set up," in particular for economically disadvantaged patients. The forum also welcomes the establishment of national contact points and recommends that they are set up "in a transparent way and that quality information is appropriately disseminated across the country and regions". It also argues that "patient organisations, if adequately resourced, could play a useful support role and supplement the formal information received from health authorities". 

Eucomed, the European medical technology lobby, urged more cooperation on eHealth and health technology assessment (HTA) between the EU 27. It argued that "medical technology helps in increasing the cost-effectiveness of medical care". "When implemented in a collaborative manner, eHealth is a particularly good example of medical technology contributing to increase the overall efficiency and cost-effectiveness of healthcare systems in Europe today," added Eucomed chief executive John Wilkinson

Eucomed's views were endorsed by the Health First Europe, an alliance of patients, academics, healthcare experts and the medical technology industry. The alliance called on the EU "to facilitate the development and integration of eHealth into the provision of day-to-day healthcare services" and hoped the upcoming Recommendation on eHealth interoperability will clarify current legal uncertainties and lead to harmonised standards to speed up eHealth development.

Health systems are primarily the responsibility of the member states, but in some cases, as confirmed by several European Court of Justice (ECJ) rulings since 1998, EU citizens may seek health care in other member states, with the cost covered by their own health systems. 

This can occur in instances where health care is better provided in another member state, for example, for rare conditions or specialised treatment. It may also be the case in border regions where the nearest appropriate facility may be situated in another country. 

However, health services remained excluded from the general "Services Directive" in spring 2006 (the so-called Bolkestein Directive), despite the many ECJ rulings showing that they are to be considered as an economic activity and that Community law applies to them. 

To provide clarity and legal certainty on the issue as well as support for co-operation between national health systems, the Commission has decided to establish an EU framework to ensure cross-border access to healthcare services.

According to the EU executive, the current scale of cross-border mobility amounts to 1% (€10 billion) of overall EU-27 public health spending (€1000 billion).

  • The proposal has little chance of going through the co-decision procedure during the Barroso Commission. First reading in the Parliament may still take place next spring, but the readings will have to be started from scratch after the June 2009 elections, involving the appointment of new rapporteurs.
  • Once adopted, member states have one year to comply with the directive.

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