ACCESS TO HEALTH CARE ACROSS THE EUACCESS TO HEALTH CARE ACROSS THE EU Lessons learnt from the Judgements Lessons learnt from the Judgements

of the EU Court of Justiceof the EU Court of Justice

ACCESS TO HEALTH CARE ACROSS THE EUACCESS TO HEALTH CARE ACROSS THE EU Lessons learnt from the Judgements Lessons learnt from the Judgements

of the EU Court of Justiceof the EU Court of Justice

EURORDIS2005 Membership Meeting

VENICE

Francesco Ronfini

1. More and more people are crossing borders for medical treatment;

2. Greater demand for “health tourism”;

3. Different entitlements of patients under the national health care systems and restricted national health budget;

4. Impact of the Eu law and European Court of Justice rulings on the right to access health care services.

THE BACKGROUNDTHE BACKGROUND

EUROPEAN HEALTH PROTECTION SYSTEMS IN THE EU - I

THE EUROPEAN HEALTH CARE SYSTEMS

VARY CONSIDERABLY

AMONG MEMBER STATES

BUT

UNDERLYING ALL OF THEM

IS A COMMON MODEL

BASED ON

SOCIAL SOLIDARITY

AND

UNIVERSAL COVERAGE

EUROPEAN HEALTH PROTECTION SYSTEMS IN THE EU - II

HEALTH CARE SYSTEMS IN MEMBER STATES ARE GENERALLY DIVIDED INTO TWO CATEGORIES:

1. National Health Systems (Beveridge Model)(e.g. United Kingdom, Italy, Spain, Denmark or Sweden)

- These systems are funded by taxation;

- The entitlement is usually straightforward and provided to the whole population resident within the Country in question;

EUROPEAN HEALTH PROTECTION SYSTEMS IN THE EU - III

2. Social Insurance Systems (Bismarck Model)(e.g. Germany, Belgium, Netherlands, Austria, France, Slovenia,)

- The law determines who is compulsory insured (in these cases a part of the population can be exempted or excluded on the assumption they can make alternative arrangements).

- The system is financed by the payment of premiums (income-related).

- The administration is entrusted to local semi-public bodies (Sick-ness funds).

EUROPEAN HEALTH PROTECTION SYSTEMS IN THE EU - VI

ART. 152 (5) EC TREATY PROVIDES THAT:

“COMMUNITY ACTION IN THE FIELD OF PUBLIC HEALTH SHALL FULLY RESPECT THE

RESPONSABILITIES OF THE MS FOR THE ORGANISATION AND DELIVERY OF HEALTH

SERVICES AND MEDICAL CARE”

(Which includes their national health-insurance systems: ECJ Cases: 238/82 Duphar, 158/96 Koll)

EUROPEAN HEALTH PROTECTION SYSTEMS IN THE EU - IV

ALL THESE HEALTH SCHEMES HAVE A COMMON CHARACTERISTIC:

THE RIGHT TO MEDICAL CARE IS A TERRITORIAL RIGHT

THIS MEANS IN PRINCIPLE THAT PEOPLE ARE ONLY ENTITLED TO HAVE THE COST

OF MEDICAL CARE REIMBURSED IN THEIR OWN NATIONAL TERRITORY

EUROPEAN HEALTH PROTECTION SYSTEMS IN THE EU - V

REGARDING THE ACCESS TO HEALTH CARE SERVICES:

1. IN EACH MEMBER STATE

A CLAIM BY AN INDIVIDUAL IS WHOLLY DEPENDENT UPON THE AVAILABILITY OF THE PARTICULAR

SERVICE IN THEIR OWN STATE

2. WITHIN THE EU

THE DETAILS OF LEGAL ENTITLEMENTS OF PATIENTS ARE ESSENTIALLY DETERMINED BY

THEIR OWN NATIONAL LAW

EUROPEAN HEALTH PROTECTION SYSTEMS IN THE EU - VII

HOWEVER

THESE PROVISIONS OF NATIONAL LAW

ARE AFFECTED BY EU LAW IN SEVERAL WAYS

THROUGH BOTH

LEGISLATION PROMULGATED AT EU LEVEL

AND LITIGATION BASED ON DIRECTLY EFFECTIVE PROVISIONS OF COMMUNITY LAW

THE IMPACT OF THE EU LAW ON THE RIGHT THE IMPACT OF THE EU LAW ON THE RIGHT TO ACCESS HEALTH CARE SERVICESTO ACCESS HEALTH CARE SERVICES

ON THE BASIS OF:

- THE CURRENTLY IN FORCE EU LAW,

- AND THE RELEVANT BODY OF ECJ CASE LAW:

EU PATIENTS MAY SEEK HEALTH CARE SERVICES IN A MEMBER STATE DIFFERENT FROM THEIR OWN FOR A NUMBER OF REASONS SUCH AS:

- Value for money; - Waiting times; - Quality of care; - Particular health care service available (right to access a

particular type of health care service).

EUROPEAN LAW CURRENTLY IN FORCE - I

• Articles 3/p, 18, 39, 42, 49 and 50 EC Treaty;Articles 3/p, 18, 39, 42, 49 and 50 EC Treaty;

• EC Reg. 1408/ 1971 (revised by the new EC EC Reg. 1408/ 1971 (revised by the new EC

Reg. 883/2004);Reg. 883/2004);

• EC Reg. 574/ 1972;EC Reg. 574/ 1972;

• EC Directives 90/364 – 90/365 - 90/366 - 93/96;EC Directives 90/364 – 90/365 - 90/366 - 93/96;

EUROPEAN LAW CURRENTLY IN FORCE - IIEUROPEAN LAW CURRENTLY IN FORCE - II

1. MIGRANT PATIENTS AS MIGRANT WORKERS1. MIGRANT PATIENTS AS MIGRANT WORKERS

• Reg. 1408/ 71 art. 22,1, a) – Temporary stay:Reg. 1408/ 71 art. 22,1, a) – Temporary stay:

- Whoever takes up a temporary period of stay in any other MS for - Whoever takes up a temporary period of stay in any other MS for whatever reason and requires medical treatment, costs will be whatever reason and requires medical treatment, costs will be borne by the MS to which the citizen belongs. borne by the MS to which the citizen belongs.

- The right of access to medical treatment is proven by the MS to - The right of access to medical treatment is proven by the MS to which the citizen belongs through the EHIC.which the citizen belongs through the EHIC.

EUROPEAN LAW CURRENTLY IN FORCE - IIIEUROPEAN LAW CURRENTLY IN FORCE - III

• Reg. 1408/ 71, art. 22,2, - Authorized health care:Reg. 1408/ 71, art. 22,2, - Authorized health care: Whoever requires health care abroad must be authorized in Whoever requires health care abroad must be authorized in

advance (Form E-112) by the MS of membership. advance (Form E-112) by the MS of membership. Conditions*:Conditions*:A) - The applicant must have the right to request health treatment A) - The applicant must have the right to request health treatment

by the legislation of the MS in which the person concerned by the legislation of the MS in which the person concerned resides: resides:

B) – The treatment cannot be provided in this MS within the time B) – The treatment cannot be provided in this MS within the time normally necessary taking in account the current state of health normally necessary taking in account the current state of health and the probable development of the disease)and the probable development of the disease)

*ECJ rulings in PIERICK I, 16.3.78, C- 117/ 77 and PIERICK II 31.05.79, C- 182- 78*ECJ rulings in PIERICK I, 16.3.78, C- 117/ 77 and PIERICK II 31.05.79, C- 182- 78

EUROPEAN LAW CURRENTLY IN FORCE - IVEUROPEAN LAW CURRENTLY IN FORCE - IV

2. MIGRANT PATIENTS AS RECIPIENTS OF SERVICES2. MIGRANT PATIENTS AS RECIPIENTS OF SERVICES

• Art. 49 ECArt. 49 EC foreseen that “restrictions” on the freedom foreseen that “restrictions” on the freedom to provide services within the EU “shall be to provide services within the EU “shall be prohibited”.prohibited”.

• According to the According to the art. 50 ECart. 50 EC. “services” are, in this . “services” are, in this context:context:

All activities of an industrial, commercial, artisanal or All activities of an industrial, commercial, artisanal or professional character normally provided for professional character normally provided for remunaration, insofar they are not governed by the remunaration, insofar they are not governed by the provisions related to freedom of movement for goods, provisions related to freedom of movement for goods, capital and persons.capital and persons.

(Please note that art. 54 EC provides that MS maintain (Please note that art. 54 EC provides that MS maintain

restrictions on the freedom to provide services)restrictions on the freedom to provide services)

EUROPEAN LAW CURRENTLY IN FORCE - VEUROPEAN LAW CURRENTLY IN FORCE - V

THE APPLICATION OF EU LAW TO HEALTH CARE THE APPLICATION OF EU LAW TO HEALTH CARE SERVICES ACROSS BORDERS WITHIN EU - ISERVICES ACROSS BORDERS WITHIN EU - I

Based on the interpretation of the above-Based on the interpretation of the above-mentionned rules and principles, successive mentionned rules and principles, successive

decisions of the European Court of Justice have decisions of the European Court of Justice have raised the expectations of patients for increased raised the expectations of patients for increased

possibilities of medical treatment abroad.possibilities of medical treatment abroad.

The rulings mean that:1. The EU citizens have in some case the right to

access to health care services abroad;2. These treatments will be paid by the patient's

own national health protection system.

Case Law Nr. 1 - 28.04.1998Case Law Nr. 1 - 28.04.1998

KOHLL (C- 158/ 96) & DECHER (C- 120/ 95)KOHLL (C- 158/ 96) & DECHER (C- 120/ 95) This case law relates to the right of reimbursement of This case law relates to the right of reimbursement of

costs borne by the applicant for health services and costs borne by the applicant for health services and products in a foreign MS on the basis of rates products in a foreign MS on the basis of rates currently in force in the membership country without currently in force in the membership country without requiring prior authorization.requiring prior authorization.

THE APPLICATION OF EU LAW TO HEALTH CARE THE APPLICATION OF EU LAW TO HEALTH CARE SERVICES ACROSS BORDERS WITHIN EU - IISERVICES ACROSS BORDERS WITHIN EU - II

The ECJ, stated that:1.1. It is up to the single MS to manage and structure their It is up to the single MS to manage and structure their

National Health System;National Health System;2.2. The areas of Social Security and Health Care Services are The areas of Social Security and Health Care Services are

not exempt from the application of community law;not exempt from the application of community law;

3.3. Art. 22 /Reg. 1408/ 71 does not prevent the riembursement Art. 22 /Reg. 1408/ 71 does not prevent the riembursement of health care costs borne abroad without prior of health care costs borne abroad without prior

authorization;authorization;

THE APPLICATION OF EU LAW TO HEALTH CARE THE APPLICATION OF EU LAW TO HEALTH CARE SERVICES ACROSS BORDERS WITHIN EU - IIISERVICES ACROSS BORDERS WITHIN EU - III

4. 4. The obligation to obtain prior authorization The obligation to obtain prior authorization discourages recourse to medical health services in discourages recourse to medical health services in another MS, thereby constituting an obstacle to the another MS, thereby constituting an obstacle to the free circulation of patients; free circulation of patients;

5. In the case in point preventive AUTORISATION 5. In the case in point preventive AUTORISATION cannot be justifiedcannot be justified and do not constitute a grave and do not constitute a grave risk either for the financial equilibrium of the Social risk either for the financial equilibrium of the Social Security System or for other public health reasons;Security System or for other public health reasons;

THE APPLICATION OF EU LAW TO HEALTH CARE THE APPLICATION OF EU LAW TO HEALTH CARE SERVICES ACROSS BORDERS WITHIN EU - IVSERVICES ACROSS BORDERS WITHIN EU - IV

• Case Law No. 2 – 12.07.2001:Case Law No. 2 – 12.07.2001: C- 368/ 98 - VANBRAEKEL vs Alliance Nationale des C- 368/ 98 - VANBRAEKEL vs Alliance Nationale des

Mutualitees Chretiennes (ANMC)Mutualitees Chretiennes (ANMC) Case Law Nr. 3 – 12.07.2001: C-157/ 99 GERAERTS- SMITS vs Stichtin Ziekenfonds and PERBOOMS vs Stichting CZ Groep (health

insurances)• Case Law Nr. 4 - 13.05.2003:Case Law Nr. 4 - 13.05.2003: C- 385/ 99 of : MULLER- FAURE’vs Onderlinge C- 385/ 99 of : MULLER- FAURE’vs Onderlinge

Waarborgmaatsshappij Oz. ZORG., Waarborgmaatsshappij Oz. ZORG., and VAN RIET vs Onderlinge WaNDERLINGE Waar. Zao and VAN RIET vs Onderlinge WaNDERLINGE Waar. Zao

ZORG.ZORG.

THE APPLICATION OF EU LAW TO HEALTH CARE THE APPLICATION OF EU LAW TO HEALTH CARE SERVICES ACROSS BORDERS WITHIN EU - VSERVICES ACROSS BORDERS WITHIN EU - V

• Case Law Nr. 5 – 25.02.2003: Case Law Nr. 5 – 25.02.2003: C- 326/ 00, IDRYMA KOINONYKON ASFALISEON (IKA) vs C- 326/ 00, IDRYMA KOINONYKON ASFALISEON (IKA) vs

VASILEIOS IONNIDISVASILEIOS IONNIDIS• Case Law Nr. 6 – 03.07.2003: C-153/ 01: VAN DER DUIN vs Onderling

Waarborgmaastshappij Anoz. Zorg.• Case Law Nr. 7 – 23.10.2003: C-56/2001, Patricia INIZAN vs Caisse Primaire

d’Assurance Maladie• Case Law Nr. 8 – 18.03.2004: C - 08/2002: Ludwig LEICHTLE vs Bundesanstalt fur

Arbeit.

THE APPLICATION OF EU LAW TO HEALTH CARE THE APPLICATION OF EU LAW TO HEALTH CARE SERVICES ACROSS BORDERS WITHIN EU - VSERVICES ACROSS BORDERS WITHIN EU - V

• Prior authorisation is justified:

• 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:

• 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)

IN-PATIENT CARE

Cases Smits-Peerbooms

Van Riet

OUT-PATIENT CARE

Cases Kohll-Decker

Müller-Fauré

• TEAM (E111) – Cure necessarie durante un soggiorno temporaneo in altro SM se

previste dalla legislazione dello Stato che le fornisce;

• AUTORIZZAZIONE PREVENTIVA - E112 – Autorizzazione per cure in un altro SM, che non puo’ essere rifiutata

se: > La cura e’ prevista dallo SM di residenza; > La cura non puo’ essere fornita entro un tempo medicalmente giustificato;

• Il beneficiario riceve il trattamento come se fosse assicurato /iscritto nello SM dove il trattamento viene eseguito, quindi:– Secondo le tariffe dello SM del in cui il trattamento viene eseguito;– Alle condizioni e secondo le formalita’ dello SM del trattmento;

• Il pagamento viene regolato tra gli Organismi finanziari degli SM

Artt. 19-20 Nuovo Reg. CE 883/2004

(Libera circolazione delle persone e Coordinamento Sicurezza Sociale)

• Servizi Non-Ospedalieri: Nessuna Autorizzazione preventiva puo’ essere richiesta se coperti

dalla legislazione dello SM di residenza;

• Servizi Ospedalieri: Possono essere subordinati ad Autorizzazione ai sensi degli artt. 49

e 50 Tr.CE. Lo SM non puo’ rifiutare l’Autorizzazione se:– La cura e’ prevista dallo SM di residenza;– La cura non puo’ essere fornita entro un tempo medicalmente

giustificato;

• Il beneficiario e’ soggetto alle condizioni dello SM di residenza per quanto riguarda:– Le tariffe ed i rimborsi;– Condizioni amministrative e formalita’ dello SM di residenza

• Il Pagamento viene fatto direttamente dal paziente che deve poi chiedere il rimborso.

Art. 23 - Proposta di Direttiva CE 2004/2, sui Servizi nell’UE

(Libera circolazione di beni e servizi)