Tension between the Competence of the Member States to Organize and Finance Health Care and Liberalization Efforts of

the European Union

Filip Křepelka (krepelka@law.muni.cz)

Masarykova univerzita, Brno, CZ

Case-law for liberalization and its justification

• Every expert on EU and health care law heard repeatedly about Kohll / Decker, Smits + Peerbooms, Vanbraekel, Watts, Leichtle etc. etc.

• Free movement of services and related principle of equality applied on reimbursement of health care sought and found abroad.

• Stability of public health care financing recongized as goal in acceptation of previous consent for reimbursment of hospitalization.

Codification of case-law in the directive 2010/24/EU

• Surprisingly, the member states represented in the Council, the European Parliament as elected supranational body and the European Commission agreed on codification of above-mentioned case-law requiring public reimbursement of health care sought and found abroad.

• Lengthy text mentions numerous principles, tasks and policies is compromise between liberalization efforts and concerns of the member states. Economic liberalization is enriched with focus on rights of patients.

Different models of financing recognized in case-law and in the directive?

• Judgment Smits + Peerbooms confronted contracted health care providers selected by public health care insurance funds on national territory – understandably, if health care of residents shall be assured.

• Judgment Watts confronted national health service – health care provided by provider owned and managed directly by the government (national, regional, local).

• The European Court of Justice recognizes existence of these models and confirms rights of the member states to operate them.

Pricing of health care

• Pure reimbursement model: every single treatment has its own price.

• Public health care financing in models of health care providers contracted by public health care insurance funds or similar institutions, however, tend to restrict such payments and resort to lump-sums and various motivation and dissuation payments.

• Institutions of national health care are also financed with such approaches.

• Mixture of various methods tries to curtail expanding expenditures on health care.

Inherent preference for reimbursement system

• Free movement of services applied for reimbursment.

• Contractation between patient and health care provider including agreement on price and separate reimbursment.

• Prevalent model in France, Belgium and Luxembourg, including the European Union institutions located in these countries.

• Same amount of money as in home country shall be reimbursed if healthcare sought and found abroad.

Urgent health care for tourists + allowed

health care sought abroad • Coordination of social security for migrants (now

regulation 883/2004, former regulation 1408/71) establishes public reimbursement of necessary health care for migrants.

• Prevalent model of public health care financing in six founding member states in the first decades of the European Economic Community was public reimbursement of health care contracted by pacients and health care providers. Money is paid directly to patients similarly as pensions and allowances.

Different approach in coordination of health care

• Regulations for coordination of social security expect interinstitutional reimbursement based on prices of public reimbursment in the member state of the health care provider.

• The member states are need to establish lists of prices for such reimbursment if mixed pricing as applied.

• Most countries have similar lists for calculation of compensation of health care expenditures if injury or illness can be attributed to negligence or intent and person or entity can be made liable for such expenditures.

• In reality, these prices often differ from real pricing.

Pressure for change for to reimbursment system?

• The member states are pushed to switch for reimbursment system at least as regards health care sought and found abroad in accordance with the case-law and the directive mentioned.

• Price lists for many treatments must be established. Average hypothetical domestic prices must be calculated to avoid unnecessary privileging of foreign providers on the one hand and their discrimination which can be questioned with law of the European Union.

Minor importance of these lists

• For various reasons, no mass resort to cross-border health care can be expected in many countries.

• Czech Republic: health care providers contracted by several competing publich health insurance funds, little co-payments, language barrier, lower quality of health care in Poland and Slovakia and expensive care in Germany and Austria, wide range of services at home.

• The list of prices for reimbursement will thus have minor role.