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Healthcare treatment abroad
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Introduction
Healthcare has ever been provided on a territorial basis. That is due to the fact that healthcare services are in most countries paid through taxes and/or premiums.
The Treaty of the European Union (EU-Treaty), as well as the Treaty of the European Communities (EC-Treaty), do not even mention a solution. There is only one regulation stating something about healthcare services, namely art. 22 of the Social Security Regulation 1408/71 .
According to this article, state A has to meet the bills of its citizens in state B for healthcare services. Only if the citizen is in need for emergency healthcare treatment (and can provide a European Health Insurance Card) or if the patient has expressly been authorized to receive non-emergency healthcare treatment in another member state (art. 22 para 1). Furthermore may the “express authorization” not be refused, if the treatment is in principle within the benefits for healthcare treatment in the home country and the treatment cannot be done within a reasonable time in the home country (art. 22 para 2). If authorization is given, the health insurance even has to pay the entire bill, even when it is higher than it would have been in the home country.
The first problem arising is, what happens on vacations, if it might be clever to go to a doctor, but in that case it is no emergency treatment. The second problem is that the organization, which is funding the treatment, is in charge of the decision, if healthcare treatment can be done/is paid for in foreign countries or not.
The question that first has to be resolved: Are artt. 49 and 50 EC (freedom of movement of services) applicable? The European Court of Justice (ECJ) had to solve that question in the cases Luisi and Carbone and SPUC v. Grogan . The easiest solution for the court would have been to deny the applicability. However it did not. Following the rule of the ECJ, healthcare services are part of “services” in art. 50 EC. That does not necessarily mean, that every healthcare treatment has to be paid by the health insurance, one has to differentiate according other cases, between intra- and extramural healthcare treatment.
Extramural healthcare services
The first case to look at is the Kohll case . Mr. Kohll is citizen of the Grand Dutchy of Luxembourg. The healthcare system of Luxemburg is based on a reimbursement basis. That means, if a citizen receives healthcare services, the citizen has to pay the bills himself and will get reimbursed later on. The laws for the healthcare system in Luxembourg only permit healthcare services in other countries, if there is a written authorization in advance. A prior authorization is not needed, if the treatment is done within Luxembourg. Kohll sought prior authorization for orthodontic treatment in Germany for his daughter. The authorization was denied; nevertheless his daughter received the orthodontic treatment abroad. Kohll asked for reimbursement, it was denied. Kohll sued Luxembourg for a breach of art. 49 EC. The ECJ agreed so far, that Luxembourg breached art. 49 EC, but argued that, in principle, there was a possibility to justify the breach. The government of Luxembourg argued that the restriction is needed to make the costs for the system controllable. The court accepted the argument in principle – but rejected it on the facts. Kohll sought for medical treatment in Germany, the costs for orthodontic treatment in Germany were the same than they would have been in Luxembourg. This argument could not justify the restriction. Luxembourg argued further, that the restriction is needed to ensure the quality of medical services as well as balanced medical and hospital services throughout the country, open to all. Again, the court accepted the argument in principle – but rejected it on the facts. The court ruled, that taking up the profession of a doctor – or in this case a dentist – has been subject of several co-ordination and harmonization directives. The quality is ensured within the European Union. Luxembourg did not succeed in proving, that she was unable to maintain essential treatment facilities and medical services spread equally over the country, if some citizen sought for treatment in other member states. The court ruled, that the restriction could not be justified. It was indeed a breach of artt. 49 and 50 EC. An obstacle in this case was the fact, that art. 22 para 2 envisaged prior authorization itself, but the ECJ ruled, that the artt. 49 and 50 EC were able to reshape art. 22.
The next case is Vanbraekel v. ANMC , Vanbraekel is citizen of the Kingdom of Belgium and receive medical treatment in the French Republic. In this case prior authorization was wrongfully withheld, even though the costs of treatment outside Belgium were lower, than the treatment in Belgium would have been. The court ruled that is was a barrier to the freedom to provide and receive services, moreover all justifications of the Belgian government were rejected. Anne Pieter van der Mei, lecturer for law at the University of Maastricht said after the decision, that cross-border healthcare has become an enforceable right.
Moving forward to the courts ruling on Müller-Fauré (V.G.) v. Onderlinge Waarborgmaatschappij oz Zorgverzekeringen UA . Mrs. Müller-Fauré received, as a citizen of the Kingdom of the Netherlands, dental treatment in the Federal Republic of Germany. The Dutch sickness fund refused to reimburse her. The ECJ agreed again, that it was a barrier to the freedom to receive and provide services, the justifications were nearly the same as in the first case. The court ruled that there was no evidence, that extramural care in foreign countries would undermine the financial balance of the Dutch healthcare system. The court further said, that the potential number of people taking advantage of the possibility was fairly small, due to geographic and language barriers as well as the costs for traveling and staying abroad and a lack of information about extramural treatment in foreign countries. In this case, the court made an important caveat to its ruling on the Kohll case. Remember, it stated in the Kohll case, that the citizen has to be reimbursed, while it said in the Müller-Fauré case, that a citizen will only be reimbursed up to the costs, that were paid due to the local healthcare scheme.
Conclusion extramural care:
The sickness fund may not refuse reimbursement for treatment in foreign member states up to the costs paid in the home country. However, the citizen has to pay in advance and then has to await reimbursement. Bearing all this in mind, I called a German sickness fund, asking whether they would pay costs of medical treatment in other member states or not. They told me, that they would not pay anything. Unfortunately the ruling of the ECJ is not known to most sickness funds, or they are playing with time, hoping that they are not sued. But that means, that the patient does not only need to pay in advance, he also has to sue to get reimbursed. We can only hope, that the insurances are changing their policy with regard to healthcare treatment in foreign countries soon. All that stated applies o n l y for extramural treatment!
Intramural care:
The first case to look at is the Geraets-Smits (B.S.M.) v. Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v. Stichting CZ Groep Zorgverzekeringen case. To understand the following, I will first have to explain, that the Dutch healthcare fund provides, unlike the fund of Luxembourg, services in kind. The insured can go to a contracted hospital and this hospital is directly paid by the fund.
Mrs. Geraets-Smits suffered of Parkinson’s disease; she as a Dutch citizen claimed medical treatment in Germany, as the treatment is there, following her argumentation, better then in the Netherlands. Mr. Peerbooms was transferred to the Repubic of Austria for neurostimulation treatment; he could not have obtained this treatment in the Netherlands. The fund refused the payment of the costs. The ECJ ruled that is was also a barrier to receive and provide services, but raised the question, if there were justifications.
The justification was, that the Dutch healthcare system was planned to ensure sufficiency and access to medical treatment evenly distributed throughout the country while trying to prevent wastages of money. If it were allowed to go to non-contracted providers, the careful planning would jeopardize. The court ruled that prior authorization for intramural care is both necessary and reasonable. Therefore contracted hospitals have to be given priority, but the treatment through contracted providers has to be granted without undue delay. The deciding authorities have to take the patient’s medical history and condition and the degree of pain and the nature of the patient’s disability into consideration. But it is, following the ECJ, not justifiable to deny treatment abroad just because the patient would jump the waiting list queue. In E.E.M. van Riet v. Onderlinge Waarborgmaatschappij oz Zorgverzekeringen UA Mrs. Van Riet claimed the right to be treated in Belgium (arthroscopy), because the treatment was available in the Netherlands only with undue delay.
A problem arising is, what is an undue delay in this context. The court tried to work that out in the Watts v. Bedford Primary Care Trust case. Mrs. Watts is citizen of the United Kingdom of Great Britain and Northern Ireland. Medical treatment is free in Britain; it is paid for through taxation. The costs are met through the British National Health Service (NHS). Mrs. Watts needed a hip replacement. According to the waiting list she should have waited approximately one year. She asked to let the replacement be done in France, her wish was denied, but nevertheless she went to France for the replacement. She then claimed reimbursement of £ 3.900,--. The English courts ruled, that a waiting list of one year was no undue delay, the Court of Appeal referred the matter to the ECJ. Following the ECJ, a static waiting list is not enough, the decision has to be taken in the lights of an “objective medical assessment of the clinical needs of the person concerned in the light of his medical condition and the history and probable course of his illness, the degree of pain […]” etc. Waiting times have to be flexible and dynamical. Therefore the United Kingdom has to reimburse Mrs. Watts for her traveling and accommodation costs. The costs for her hip replacement do not have to be reimbursed, as the waiting times were not to be seen as an undue delay. Important for this case is, that it is only valid for the NHS and similar systems, as it provides services in kind and is not based on reimbursement as for example the system in Luxemburg. Unfortunately, there is still no proper definition for undue delay.
Resumee:
Medical treatment falls under the scope of art. 49 and 50 EC, especially if a prior authorization is required. While that can easily be justified for intramural care, it is nearly impossible to justify the barrier for extramural treatment. The patient gets only reimbursed up to the price that would have to be paid in the home country. All costs are only met, if a prior authorization was given.
That means, that one can go abroad for extramural treatment. The patient has to receive reimbursement. Going abroad for intramural treatment is only allowed, if there is a prior authorization, or if the treatment can only be done with undue delay. But undue delay is undefined and can only be decided from case to case.
Please take into consideration, that this article is, of course, only applicable if citizens of the European Union seek medical treatment in other member states. The part of extramural treatment should also be applicable, if citizen want to buy medication in other member states.
Footnotes:
- Articles without naming laws are those of the regulation named above.
- Luisi and Carbone Joined Cases 286/82 & 26/83
- SPUC v. Grogan Case C-159/90
- Kohll Case C-158/96
- Vanbraekel v. ANMC Case C-368/98
- Müller-Fauré (V.G.) v. Onderlinge Waarborgmaatschappij oz Zorgverzekeringen UA Case C-385/99
- Geraets-Smits (B.S.M.) v. Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v. Stichting CZ Groep Zorgverzekeringen Case C-157/99
- E.E.M. van Riet v. Onderlinge Waarborgmaatschappij oz Zorgverzekeringen UA Case C-385/99
- Watts v. Bedford Primary Care Trust Case C-372/04
The author cannot guarantee correctness or completeness. The matter is quickly changing, there may be cases changing the ruling of the ECJ.
For further reading please have a look at: Barnard, Catherine: The substantive law of the European Union; Oxford University Press.
If you find mistakes, or if you know about changing please contact the author or the Diabetes-Index Gbr.
Author: Jan Twachtmann |
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