The EU Directive on the application of patients' rights in cross-border healthcare has been making slow progress since the production of the first draft in July 2008. Ian Youngman from IMTJ looks at the latest developments in adoption of the Directive and the agreement of the draft proposal.
A directive intended to help people get healthcare treatment wherever they are in the European Union moved a step closer to becoming law this month, as health ministers agreed a draft proposal. (Documentation related to the EU Directive can be downloaded from the European Commission web site). The agreement clears the way for the Commission, the Council and the European Parliament to begin negotiations on a final version of the law in the autumn.
Last year, Spain led a revolt against the then draft, but subsequently came up with a compromise. Spain was concerned about picking up the bill for the costs of healthcare for thousands of North European pensioners living in retirement on the Spanish coasts. The revised draft clarifies who bears these costs. The country of residence usually pays the healthcare costs for resident non-citizens. But the compromise means that in some instances the citizen's country of origin will have to pay the costs. So if a German pensioner living in Spain returns to Germany for healthcare, Germany will pay the bill.
The ministers' agreement is not what the European Commission wanted as it adds layers of costly bureaucracy. Under the revised draft of the law, patients must seek prior authorisation from healthcare authorities if their treatment involves a hospital stay of more than one night, high-tech equipment or raises safety and quality concerns. National governments argue these safeguards will allow them to manage health budgets, but the Commission believes that they frustrate the original intention of the law to help patients assert their rights. There is a concern that complications and less than clear language in the draft will create more confusion for patients, hospitals, health authorities and payors.
The Council in charge of Employment, Social Policy, Health and Consumer Affairs agreed a draft directive concerning the application of patients' rights in cross-border healthcare, on the basis of a compromise proposal of the Spanish presidency. The draft directive aims to assist access to safe and high-quality cross-border healthcare and to promote cooperation on healthcare between member states.
The key provisions of the Directive
The draft directive contains the following provisions:
· As a general rule, patients will be allowed to receive healthcare in another member state and be reimbursed up to the level of reimbursement applicable for the same or similar treatment in their national health system if the patient is entitled to this treatment in their country of affiliation;
· In case of overriding reasons of general interest, such as the risk of seriously undermining the financial balance of a social security system, a member state may limit the application of the rules on reimbursement for cross-border healthcare; member states may manage the outgoing flows of patients also by asking a prior authorisation for certain types of healthcare (those which involve overnight hospital accommodation, require a highly specialised and cost-intensive medical infrastructure or which raise concerns with regard to the quality or safety of the care) or via the application of the gate-keeping principle by the attending physician or local hospital;
· In order to manage ingoing flows of patients and ensuring sufficient and permanent access to healthcare within its territory a member state may adopt measures concerning the access to treatment where this is justified by overriding reasons;
· Member states must ensure via national contact points that patients from other EU countries receive, on request, information on safety and quality standards in their territory in order to enable patients to make an informed choice;
· Cooperation between member states in the field of healthcare is strengthened, in e-health and through the development of European reference networks that will bring together, on a voluntary basis, specialised centres in different member states;
· Long-term care services provided in residential homes and the access and allocation of organs for the purpose of transplantation fall outside the scope of the draft directive;
During the Council meeting the discussions focused on the definition of the member state of affiliation with regard to pensioners living abroad; reimbursement and prior authorisation; and the legal basis. The key area of dispute was on reimbursing the cost of cross-border healthcare of pensioners. If a pensioner is treated in his country of origin, this country would have to provide healthcare at its own expenses. If the pensioner is treated in the country they are legally resident in, the country they live in pays for healthcare either in that country or in any country other than their country of origin.
The expatriate and foreign resident issue
Although peace appears to have broken out, much will depend on whether the final legal wording is workable, and whether countries seek to opt out of the rules claiming that they bear an unfair cost. For the last few years, Spanish politicians have criticised the arrangement that they say lets British citizens take advantage of their health system. This year, Spain’s Union of Doctors in the Public Health Service (SiMAP) complained that up to 20% of patients in Alicante (a Spanish province popular with British expats) are non-Spanish nationals. The doctors say the Spanish health system is under enough pressure as it is, and any Britons who wish to be treated under the Spanish system should register their residency status and pay taxes. In Spain’s case, anyone resident in Britain gets free health treatment under the National Health Service (NHS). In Spain, anyone with a European Health Insurance Card is eligible for emergency treatment and anyone who is covered by a government social security system in any EU country is eligible for that card. But the doctors say that too many British people are freeloading and using the Card when the treatment is not an emergency. To counteract the pressure, the Spanish regions have moved to tighten the system. Foreigners under 65 who are not resident in Spain are no longer eligible for free healthcare, but for those non-residents holding a European Health Insurance Card, emergency treatment remains available. But the NHS has also complained about non-residents getting treatment that is not emergency treatment in the UK and people from the EU and elsewhere failing to pay the bills given to them. The NHS has also clamped down on treating UK expatriates. So there are two possibilities:
· Britons no longer resident in the UK but not registered as Spanish residents, being denied access to treatment by both the UK and Spain.
· The more serious possibility is that if the NHS and one or more Spanish regions seek to opt out of the rules on the grounds of excessive costs to social health, there will be a glorified stand-off on who pays for health costs of expatriates.
The devil is in the detail...
So, although the deal has been cast, the devil will be in the detail and how countries interpret the rules. Any country can impose conditions on their citizens being reimbursed by, for instance, insisting that they are referred by a physician or that they first receive permission in advance for any procedure that would require such conditions as an overnight stay in hospital or the need for highly specialised and cost-intensive medical infrastructure; these definitions being so vague as to allow many variations of interpretation. It is no longer clear if countries can claim exemptions on the grounds of damage to their social health system, and/or impose local restrictions, solely on their own initiative, or only if all EU member states agree to those exemptions and restrictions.
It leaves a feeling that Spain has achieved what it set out to do, leave loopholes for countries to exploit and argue over, and to strangle the concept in so much administration and debate that only the hardiest consumers will successfully fight for their rights for cross-border treatment.
Profile of the author
Ian Youngman is a writer and researcher specialising in insurance and health. He writes regularly for a variety of magazines, newsletters, and on-line services. He also publishes a range of insurance reports and undertakes research for companies. An ACII, with an honours degree in Economics from the University of Liverpool, Ian was a co-founder of The General Insurance Market Research Association. He also has widespread experience within the insurance industry at management level, working for brokers, a bank and an insurance company.
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