EU Healthcare across Borders
Patients may choose to go to a different state for many reasons. First of all, some individuals may believe that the quality of healthcare is insufficient in their place of living. Such instances may be caused by one’s high health-related demands, rare conditions, and individual preferences. Another possible reason is the time that some patients have to wait to get their treatment. For example, the existence of waiting lists that ensure that every patient receives treatment may put some individuals in a challenging position.
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On the one hand, these people may be simply anxious about their condition becoming worse. On the other hand, some individuals’ health may be unstable or quickly deteriorating, meaning that they need to receive treatment fast. In these cases, patients may seek care in other countries, usually paying for all services out of their pocket. There can be many other reasons for people to dislike the idea of waiting lists. Nevertheless, the urgency of some situations may encourage people to seek out alternative ways to receive proper care.
Legal Position of Patients
Patients who decide to visit another state to receive care should rely on some particular cases and regulations to make sure that they do not lose their privileges. For example, people seeking cross-border healthcare may depend on Article 114 of the Treaty on the Functioning of the European Union (TFEU), as it encourages the internal movement of the market.1 Still, this does not mean that all patients are encouraged to seek healthcare elsewhere than their home state.
For example, the case of Kohll shows that the Articles of 59 and 60 of the TFEU discourage patients from visiting other countries by giving social security institutions more power to decide whether reimbursement is appropriate2 The ability to receive adequate care is often challenged by the economic concerns of care providers and government officials. The process of reimbursement is the most complex system in this case.
Multiple cases can help one outline which services may be reimbursed by the state after the fact of receiving care. However, most documents and judgments note that some preparatory actions may help patients to secure their ability to get all expenses covered.
Here, patients should consult the Directive 2011/24/EU and official Commission Reports on its operation. According to Article 8(2)(a) of the Directive, most countries may allow reimbursement if the patient received a confirmation to proceed with the services from his or her sickness fund or insurance representative3 However, it remains unclear which the Member States require such actions to be taken. Moreover, the full list of possible services to which this rule applies is also unspecified. The possibility to get a successful reimbursement can be based on the patient’s case as many judgments find the need to address each situation in detail.
The situation is further complicated by the fact that the regulations created by the Directive mentioned above have to coexist with the system of individual rulings.4 The comparison of these two documents can give patients an idea of further actions. For example, the Directive on Patient Rights states that prior authorization of services in the Member State may be required in some special situations, including cost-intensive or hazardous treatments. On the other hand, the Regulation on Coordination of Social Security requires prior authorization for all services except for emergency care. This incongruity creates many new cases in the court and allows social services to avoid reimbursing expenses5
Thus, it may be hard for patients to understand the rules of cross-border healthcare. Interested patients who seek healthcare as visitors can rely on Article 49 of the TFEU, which guarantees the freedom to offer services for all care providers6 For instance, if the waiting list for the operation is long and the health of the patient is quickly becoming worse, this individual can seek care in the other Member States without preliminary confirmations or agreements. In this case, the situation was dependent on the urgency of the situation.
Patients seeking emergency care may rely on such documents to evaluate their position and make the best decision. According to Watts’ case, the waiting time should be assessed regarding the acceptable period, during which a person can wait and not encounter related health problems7 If the waiting time is reasonable, the patient may not receive reimbursement in the case of seeking cross-border care. If the situation requires urgent action, then the court will most likely side with the patient. The decisions of the court, as well as the regulations stated in the directive, show that urgency often becomes the main acceptable reason for cross-border care reimbursement.
People who are residents in another Member State can try to obtain an agreement from their insurer before engaging with other organizations. The idea of agreeing first can serve as a foundation for successfully receiving the necessary financial resources for care. For instance, the issue of acquiring approval from the sickness fund before receiving services is outlined in Müller-Fauré’s case.8 Here, the reason for distrust in local professionals is discussed by the patient.
The final judgment in the case shows that one’s dissatisfaction with the services of the person’s country of residence cannot become a viable reason for the reimbursement of healthcare services from a Member State. Therefore, an emergency can become a reason, while deliberate actions and thought-out personal opinions cannot. Thus, elective care does not fall under the same rules as emergency care.
- Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare  OJ L88/45.
- C-158/96  ECR I-1931.
- Report from the European Commission on the operation of Directive 2011/24/EU COM(2015) 421 final.
- Greer, et al., Everything You Always Wanted to Know about EU Health Policies but were afraid to ask (WHO 2014) 87.
- Greer, et al., Everything about EU Health Policies 87.
- Watts C-372/04  ECR I-4325.
- C-372/04  ECR I-4325.
- Müller-Fauré C-385/99  ECR I-4509.