EU Directive on patients' rights to cross-border healthcare

The directive on patient's rights to cross-border healthcare has been proposed by the European Commission. It followed a series of rulings made by the European Court of Justice beginning in 1998, which entitled patients to obtain healthcare in any other EU Member State and to have these healthcare costs reimbursed by their own health systems in their home country. The European Commission began a consultation process on cross-border access to healthcare in 2006, which culminated in the publication of the proposal for a directive on 2 July 2008

Content of the directive

Overall, the directive is set to clarify the right of patients to seek health care in another EU country while being reimbursed by their national system.

The stated aims of the proposal are three-fold:

• To help patients exercise their rights to access cross-border care;
• To give people assurances about safety and quality of cross border care, and;
• To help national health systems cooperate to achieve economies of scale. 

Patients' access to cross-border care:

The proposal, once adopted, would give EU citizens the right to seek non-hospital care, such as dental care, visits to the optician or medical consultations, in another member state without prior authorisation. Patients would be entitled to reimbursement for planned healthcare in other EU Member States if the same or similar healthcare would have been paid for by the social security system in the patient's home country. According to the proposal, reimbursement would be made up to the amount that would have been paid if the same or similar treatment had been provided in the home country, but without exceeding the actual cost of healthcare.

As for hospital care (defined by the European Commission as requiring at least one night of hospitalisation), Member States may introduce a system of prior authorisation for reimbursement in two cases. First, if the care could have been provided and reimbursed in the home country and second, if the outflow of patients is such that it puts in risk either the finances of the national social security systems or the planning of hospital capacity. 

Safety and quality of cross-border healthcare:

The proposal establishes that healthcare is to be provided in accordance with legislation in the Member State of treatment, which in turn will have clear quality and safety standards for healthcare. There shall also be comprehensive liability insurance for providers and possibilities for patients to demand compensation in case of harm arising from healthcare.

The draft directive asks Members States to establish national contact points for cross-border healthcare and to ensure citizens are provided with information on their entitlement to seek healthcare abroad. It also states that non-nationals enjoy the same rights concerning access to care as nationals.

Increased EU cooperation on healthcare:

The draft Directive establishes that the Member States have a general duty of cooperation in matters relating to cross-border healthcare and identifies a number of areas for further cooperation: prescriptions issued in one Member State should be recognized and used in another Member State; European reference networks will be established to allow access to and promote cooperation on highly-specialised healthcare and rare diseases; Member States are expected to cooperate on eHealth by making ICT systems interoperable and send, for example, electronic patient records between countries, and share their efforts regarding the  management of new health technologies, including health technology assessment.

The process at the Council and at the European Parliament

Council of the European Union:

The draft directive was submitted by the Commission to the Member States on 2 July 2008. In December 2008 the proposal was discussed for the first time at the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO). The principles of the proposal were discussed and the positions of the Member States on this issue were checked, on the basis of a progress report on negotiations during the French Presidency. The Czech presidency continued the negotiations during the spring of 2009 and a new progress report was submitted on 9 June 2009 at a Council's meeting. The issues discussed at that meeting included which kind of healthcare should be covered by the Directive, and the forms for future cooperation in healthcare issue (see news).      

European Parliament:

The European Parliament submitted a formal opinion on the Directive on 23 April 2009 and consequently proposed a number of changes or conditions, including:

• Since most patients would only receive reimbursement after they had paid the healthcare costs, Member States should be able to introduce a system of voluntary prior notification with direct payment from the Member States to the provider. Member States must also guarantee that patients with prior authorization only have to pay a fee if this was obligatory in their home country.
• The Commission should check the possibility of setting up a clearing organisation to facilitate reimbursement of costs
• There should be clear rules on the level of reimbursement and the possibility of having the matter reconsidered if problems arise. Central contact points in each Member State and a European patient ombudsman to handle these complaints are advised.  

Future Steps

The directive has to go through a co-decision procedure, where both the European Parliament and the Council must be in agreement in order for the directive to be adopted.

If a political agreement is reached in the upcoming months, the revised proposal will be sent back to Parliament for a second reading. At that point there would probably also be direct negotiations between the Council and the Parliament on the content of the Directive. After the second reading, if the Council and Parliament are not in agreement, a conciliation process would be initiated through a special committee with representatives from the Council and the Parliament. If no agreement is reached between the Council and the Parliament after the conciliation process, there won't be a Directive.

Perceptions of the directive

There are fundamental divisions among European health ministers regarding the directive. Some countries are firmly opposed to the basic principle of the plan. It seems that Spain and Portugal are firmly opposed to the principle of the directive, which could have an impact on how services are planned and funded. Hungary, Poland and Italy also have reservations about what is proposed and may seek to impose limitations on the kinds of treatment that will be reimbursed under the new system. Some smaller member states have consistently expressed concerns that the directive could have a negative impact on their health systems if there is a large outflow of patients or medical specialists to other countries.
Despite this, it seems that the UK, France and Germany could be reaching broad agreement on what the final text could look like.

Proposals have been emitted such as exempting private hospitals and clinics from the directive in certain cases, however this would run contrary to the case law upon which the new legislation is built. A major obstacle can be the circumstances under which countries can refuse to pay for treatment for citizens who have suffered from "undue delays". The definition of this term and the question of who will decide whether a patient has waited too long are yet to be determined. 

Sources: www.EurActiv.com and www.se2009.eu

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