Bottlenecks in the Implementation of the Cross-Border Healthcare Directive

The European Public Health Alliance (EPHA) released a report last October on the implementation of Directive 2011/24/EU (the so-called Cross-Border Healthcare Directive), which clarifies the rights of patients to seek reimbursement when travelling abroad for the purpose of receiving healthcare treatments. The Commission released its first report on the implementation of this Directive in September 2015, where a number of important gaps were identified. In particular, these concern the general low awareness among citizens about their rights as mobile patients, in spite of the National Contact Points established to provide this information, and the substantial differences in the practical implementation of the Directive at national level, with some Member States deliberately placing considerable obstacles to the patients’ rights to cross-border healthcare. The Commission also found that overall, patient flows under the Directive have been quite low so far, whether for planned care (including treatments subject to prior authorisation by the affiliate Member State) or unplanned treatments.

Essentially, the Cross-Border Healthcare Directive states that patients are entitled to receive reimbursement of health services received abroad, up to the value that the same treatment would cost in their home state. This rule was adopted in 2011 following extensive case law of the ECJ on this issue, which ended up with the Court ruling that health falls within the scope of the single market. Further, as per article 8 of the Directive, national health systems may not require patients to obtain prior authorisation to access healthcare abroad, unless the procedure is highly specialised, cost intensive, or involves overnight hospital accommodation. And in any case, Member States cannot refuse to grant the prior authorisation unless they can prove that the same treatment can be received at home without ‘undue delay’, based on an objective assessment of the patient’s condition.

The latest report by EPHA examines the status of cross-border healthcare in the EU based on the findings of the Commission report and puts forward a number of key concerns to be addressed in order to improve the implementation of the Directive:

• Gaps and inadequate collection by Member States about patient inflows and outflows, which makes it difficult to genuinely assess the implementation of the Directive, together with low public knowledge of the rights the Directive offers to citizens;
• Overly cumbersome bureaucratic procedures, including complex procedures and administrative requirements that slow down, inhibit, and simply dissuade citizens from seeking cross-border treatment, due in large part to Member States’ unharmonised health systems;
• Health inequity and pressing financial barriers that aggravate health inequalities between Member States. The current reimbursement framework, which requires Member States to reimburse citizens the amount that the care would have cost at home, disadvantages citizens in poorer Member States with less developed health systems where such services are provided for less money. At the same time, this framework advantages wealthier governments, which effectively pay less for treatments that are administered abroad. Finally, the way in which the Directive functions favours citizens who are already mobile (whether in terms of physical ability, transport, and/or financial capacity), while offering less opportunities for disadvantaged or vulnerable groups;
• The vague meaning of several terms used in the Directive to define the situations in which a prior authorisation may be denied (i.e. ‘necessary’, ‘proportionate’ and ‘undue delay’) sometimes leads to an unjustified obstacle to the free movement of patients.

The most ardent recommendations put forward by the EPHA to address these shortcomings include:

• An increased effort to inform patients of their rights;
• A more efficient and consistent use of the National Contact Points regarding the provision of information;
• Introducing harmonised indicators concerning the safety, quality and waiting times;
• Providing for fair and equal reimbursement rules across Member States; and
• Working towards a non-discriminatory healthcare system that will benefit all citizens and could become a tool capable of reducing health inequalities among Member States.