Cross-border health care legal frameworks

In this subsection, access to cross-border health care is discussed according to the three legal frameworks that are currently employed within the EU. These frameworks provide four options, which are then systematically compared.

3.3.1.1 Cross-border access under Council Regulation (EEC) No. 1408/71 The first and second “option” are the procedures established under Council Regulation (EEC) No. 1408/71, which includes the EHIC (formerly known as the E111 procedure) for care that becomes medically necessary during an occasional stay and procedure E112 for planned care.

The EHIC is identical³⁸ in all Member States, and testifies that the holder is publicly insured. The EHIC replaced paper forms E111, E110 (used by international haulage companies), E128 (used by workers posted to another Member State and by students) and E119 (used by unemployed people seeking work in another Member State). The card should enable health care providers in all Member States to identify the cardholder as having statutory coverage immediately. The insured person can then benefit from a simplified procedure for receiving medical assistance. However, the EHIC can only be used in publicly contracted institutions, that is, not for non-contracted (often private) health care providers. This could pose an access barrier for a patient in immediate need of treatment when abroad, since it may be difficult to distinguish between a contracted (usually) public provider and a non-contracted (usually) private provider, mainly due to problems relating to language and visibility of contracted care. Furthermore, patients are not obliged to use the EHIC and in many cases will go abroad without it. In the Netherlands, for example, the EHIC is issued by the Dutch Health Care Insurance Board (CVZ) only to migrant workers. Other insured individuals have to specifically ask their health insurance institution, which then will have to make arrangements with the CVZ and register them. The introduction of a more effective and sophisticated

“electronic” EHIC has been discussed frequently (see Box. 3.5).

As for “planned” care, a patient is unlikely to receive an authorization of the country of insurance affiliation if the services in question are not covered there;

patients might then feel compelled to use the EHIC, by pretending that the need for the service has arisen while visiting another country. To use the EHIC, prior authorization is not needed and the patient will be covered according to the host country’s statutory system. The application of these regulations is governed by the Administrative Commission, which also negotiates agreements

38 There are actually two variants: one variant for the front of the EHIC, whereby the back is then freely available to the health insurance institution. This is the option chosen by most Member States. The other variant is for the back of the EHIC, an option chosen by Austria, Germany, Italy, Luxembourg, Lithuania, the Netherlands and Liechtenstein. Furthermore, the card is always printed in the alphabet (that is, Roman, Greek or Cyrillic) of the Member State.

Box 3.5 Electronic EHIC

The use of modern information processing technology is considered essential to ensure that transaction data can be transmitted and processed quickly, safely and inexpensively, and that real benefit can be gained from the European Health Insurance Card (EHIC).

The electronic EHIC entails more sophisticated use of the EHIC already described, based on using the digital “chip” to store citizen-related health information. At a minimum, the use of this chip would – if fully and uniformly integrated into national systems – ensure that patient encounters with the health system are traceable, which constitutes a notable shortcoming in some current paper-based systems. This information could thereafter be used to support more effective planning for regions and Member States in which patient mobility is in highest concentration.

More sophisticated use of the EHIC would enable digitized content, which may hold some elements of portable medical records³⁹ and prescriptions. So far there are few such card systems in Europe which can cross borders, and even if they did there would still be significant problems to resolve – in terms of card-reader protocols, confirming card validity, confirming professional access rights and timeliness of vital data on the card.

between Member States, resolves problems of interpretation and oversees the settlement of claims and debts between Member States (European Commission Health and Consumer Protection Directorate-General, 2001).

In order to be eligible to receive planned care abroad (hospital and non-hospital care) under Council Regulation (EEC) No. 1408/71, a patient needs to obtain authorization by means of an E112 form. The E112 form is a standard European form, identical in all countries and all languages. With this form, the payer (for example, the NHS or a sickness fund) certifies that it will cover the cost of the treatment. It states the person whose costs are to be covered, the duration of the cover, a report from an examining doctor and, if possible, the establishment providing the treatment. Although the E112 form is identical in all Member States, the authorization procedure is applied at national level and, as a result, there are variations. In general, the granting of authorization falls into the following medical and administrative stages: the GP is often the instigator, acting on behalf of the patient, as this is legally required by national law in some countries; the request is then forwarded to the payer, who will provide the E112 form. Depending on the case and health system, the decision

39 The multilingual paper on the “European Health Passport”, concerning key health data, was announced by Council Resolution many years ago. Yet, despite its evident usefulness, it has been introduced by very few countries. Reportedly, doctors were unwilling to authenticate information written on the card’s 12 concertina-style pages, or to rely on unauthenticated entries.

on whether the authorization will be granted is made at a regional or national level, often after consulting technical committees or medical officers.

Differences also exist regarding whether deadlines are in place for making the authorization decisions. One Member State reportedly has a formal “urgent procedure” in place and offers the possibility to issue an authorization a posteriori.

Some national competent organizations require additional information, such as pathology, types of treatment envisaged and the hospital at which the patient is likely to be treated (European Commission, 2003). European case law made clear that this authorization cannot be refused if the treatment is covered in the country of insurance, but cannot be given within a “medically justifiable time limit”. What exactly Member States consider to be a “medically justifiable time limit” is unclear and results in different interpretations. Some clarification was given by the ECJ’s ruling in the Watts case.⁴⁰ The Court ruled that in order to refuse an E112 authorization application on the grounds of waiting times, the public health service must establish that the waiting time does not exceed a medically acceptable period having regard to the patient’s condition and clinical needs. Hence, there is no “fixed” time limit, but rather a waiting time that relates to an individual patient’s condition. One of the few countries that actually defines a fixed time limit – as opposed to an individual or even arbitrary decision – is Denmark, where authorization for health care abroad is granted after two months of waiting. In the Netherlands, some health insurers commit themselves to specified deadlines for certain treatments, which could imply contracted care abroad.

The pre-authorization procedure leaves it as the responsibility of the Member State to grant authorization for treatment in another Member State; that is, it does not set out the limits regarding when they may be granted. This might result in Member States that are more lenient in their authorization decisions than others. For example, Estonia authorized 64% of its authorization applications (148 in total) between 2002 and mid-2005; France authorized 64% of 1240 applications between 1996 and 1999; Norway granted 49% of 65 applications (in 2004 and 2005 combined); and Sweden refused all 6 applications in 2002.

There is no information available on other countries. It is unclear how many patients try to appeal against a negative authorization decision and where they file their complaint(s).

The patient then has to take the form – or their health insurance institution forwards it – to the country of treatment and submits the form to – depending on the Member State – a sickness fund, publicly covered and contracted health care provider, local NHS, or even the ministry of health (see Table 3.8).

40 Case C-372/04 Watts.

Table 3.8 Competent authority in country of treatment where E112 has to be submitted

Country Competent authority Austria The regional sickness fund Belgium Local sickness fund of choice Cyprus Ministry of Health

Czech Republic Health insurance fund of your choice Denmark Normally the GP, who will refer to a specialist Estonia Sickness Insurance Agency

Finland Local office of the Social Insurance Institution; the form must be presented to the municipal health centre or the public hospital providing treatment

France Local sickness fund Germany Sickness fund of choice

Greece Regional or local branch of Social Insurance Institute which issues the person concerned with a “health book”, without which no benefits in kind can be provided

Hungary The treatment provider

Ireland Local health office of the Health Service Executive Italy Local health administration unit

Latvia Health Compulsory Insurance State Agency Lithuania Sickness and maternity institutions Luxembourg Sickness fund for manual workers

Malta NHS establishment (doctor, dentist, hospital, health centre) providing treatment

Netherlands Sickness fund competent for the place of residence or, in case of temporary stay, Agis Utrecht

Poland The regional branch of the National Health Fund

Portugal Metropolitan Portugal: the Regional Health Administration;

Madeira and Azores: Health Centre of the place of stay Slovenia The regional unit of the Health Insurance Institute

Slovakia Health insurance company of the insured person’s choice; for cash benefits, the Social Insurance Agency

Spain Medical/hospital services of the health system covered by Spanish social insurance

Sweden Local social insurance office; the form must be presented to the institution providing treatment

United KingdomThe medical service providing treatment

Country Competent authority

Iceland^a State Social Security Institute (Reykjavik) Liechtenstein^a Office of national economy

Norway^a Local insurance office

Switzerland^a Doctor or the hospital providing treatment Source: E112 form (2007).

Notes: ^a Not in the EU, but participate in Council Regulation (EEC) No. 1408/71.

It is important to note at this point that the E112 form cannot be used for accessing all available health care providers. Generally, this form only applies to publicly financed care, that is, no private providers which function outside the state system (see subsection 3.2.5 Choice of available providers, along with Table 3.9, below). As a result, it will be often unclear (from the perspective of an individual patient) whether care at a certain institution will be reimbursed, and therefore whether it is accessible or not. Spain, for example, is the only country that explicitly states in the E112 form that it has to be submitted at “medical/hospital services of the health system covered by Spanish social insurance”. However, practical questions then arise as to how visible publicly contracted care is to an individual patient.

3.3.1.2 Cross-border contracts

As a second legal framework, providing a third option, cross-border contracts should be mentioned. These contracts function outside of Council Regulation (EEC) No. 1408/71, even though E112 forms may be used for administrative purposes.⁴¹ In a cross-border contract, a single payer contracts care across the border: possibly not the whole range of services, as covered under Council Regulation (EEC) No. 1408/71, but rather a limited range of benefits, against a negotiated price (see also Table 3.9, below). Under these contracts, administration is taken care of by the payer with the provider, which for the patients in the majority of cases means that the only burden for them is travelling to another country. These contracts, which are all “unique” in nature – that is, there is not one arrangement, there are several – are discussed in more detail in Chapter 7 (see also Box 3.3).

3.3.1.3“Kohll/ Decker”

The third legal framework, providing the fourth “option” is the alternative framework established in the aftermath of the ECJ rulings in the Kohll/

41 Certain cross-border “arrangements” do function under Council Regulation (EEC) No. 1408/71. However, since this chapter examines legal frameworks, the narrower – and therefore more correct – term “contracts” is used, which excludes movements under Council Regulation (EEC) No. 1408/71.

Table 3.8 contd

Decker⁴² case, which stated that free movement of goods and services also apply to health care, as well as in the Geraets-Smits/Peerbooms and Vanbraekel cases⁴³ concerning reimbursement of hospital costs incurred in another Member State (later reaffirmed and clarified by the Müller-Fauré/Van Riet, Inizan and Leichtle judgements⁴⁴).These “health care cases” made clear that an exclusion of benefits for hospital treatment needs to be evidence based and pre-authorization can only be refused if the same or equivalent effective treatment could be obtained without “undue delay” at home at a contracted institution.

With regard to non-hospital services, the ECJ ruled that pre-authorization was not considered necessary, as the Court did not expect a substantial increase in cross-border mobility to obtain non-hospital services since coverage would be limited to the levels and conditions of the country of insurance affiliation.

However, the definition of “undue delay” or “a medically justifiable time limit”

varies widely between Member States, as discussed above. Furthermore, the terms used – such as non-hospital, outpatient and ambulatory care on the one side and inpatient and hospital care on the other – are not clearly defined, but arise from the application of deeper ECJ criteria regarding, for example, care networks and economic sustainability. There can, therefore, be valid differences in interpretation of the ECJ rulings, which could motivate patients (as seen previously) to start legal proceedings in order to receive pre-authorization for care that may not be covered or available and reimbursed at home.