guestlecture zagreb eu pm 2014
TRANSCRIPT
André den Exter
Inequalities in Healthcare access
under the new Patient Mobility Directive:
A missed Opportunity?
Outline
• Concept of Patient Mobility
• Legal Framework
• Case law CJEU
• Consequences
• Conclusions
Notion of patient mobility
• Central question
• Part of right to health care, social ‘positive’ right
• CJEU: ‘negative’ right to seek medical care anywhere in the EU
• Clash freedoms and finite resources
• Equity implications
Community legal framework
• Art. 168 TFEU (ex Article 152 TEC):
para. 7: ‘Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them.’
• Article 56 and 57 (ex 49, 50): Free movement of services
• Coordination Regulation 883/04 (ex 1408/71/EEC)
• Directive 2011/24/EU on Cross-border healthcare
Social Security Coordination
• General rule:
– Art. 22:
• Right to emergency care
• ‘Planned’ healthcare: Prior authorization
– para 2. conditions: benefit package &
‘undue delay’
• Revision: Regulation 883/04/EC
Legal Challenges
• Prior authorization (PA) requirement
• Diversity health benefit packages
• Differences in prices
• Quality differences
• Diversity national administrative requirements
ECJ/CJEU case law on PA
• Decker & Kohll (C-120/95, 158/96):
• Prior authorization and non-hospital care
• Smits/Peerbooms & Muller-Fauré (C-157/99, C-385/99)
• In-patient health care; criteria: ‘normal’ treatment and
necessity
• Watts (C-372/04):
• Acceptable medical waiting times
• NHS hospital services under art 49 EC
• Justification
• Calculation of costs
• Full of partial reimbursement ?
• Stamatelaki (C-444/05): reimbursement of
private hospital care abroad?
CJEU case law (2)
• Herrera (C-466/04): reimbursement of
ancillary costs?
• EFTA court: Olga Rindal (Case E-11/07)
• Elchinov (C-173/09): same or equally
effective treatment’
• Elena Petru (C-268/13): shortages of material
resources
Consequences (1)
• Prior authorization contrary to Article 56
• Not accepted for out-patient care*
• Hospital services: prior authorisation justified
• Restriction discretionary power MS
Consequences (2)
• Parallel sub-systems of PM:
– Contractual arrangements planned care
– Bilateral agreements in border regions:
regional projects facilitating PM modalities
– ‘Private’ patients cheaper or outlawed
treatment
• Policy response:
– Services Directive; separate initiative CB
Care
Directive on Cross-border Health Care,
2011/24/EU
• Objectives:
– Facilitating access to high quality CB
health care
– Clarity about rules on access and
reimbursement for healthcare received in
another EU country
– Continuity of care
– Common principles for health care
Responsibilities MS
• Establishing National Contact Points (NCPs): Providing
relevant information: ‘easily accessible’
• MS of Treatment:
– Informed consent; prices; insurance; complaint
procedures, system of professional liability insurance;
right to privacy; access/copy medical record; non-
discrimination
• MS of Affiliation:
– Reimbursement CB healthcare; among benefits; level
reimbursement; other costs; transparency cost
calculation
– Conditional PA; art 8(2); notification EC
New Elements
• Mutual recognition of prescriptions another MS
• Developing European Reference Networks
• Facilitating eHealth
– New inequalities
• Cooperation on Health Technology Assessment
Conclusions
• Several modes of patient mobility
• CJEU’s activism in cross-border care has
challenged MS discretionary powers in health
care
• New Directive’s legal clarity and certainty:
some questions remain open
• Inequalities remain and may increase due to
new developments, and diversity health
systems
• Solutions
JEAN MONNET TEACHING PROJECT
• NEW ELECTIVE: EU HEALTH LAW
• METHOD: MOOC AND OPEN ACCESS VIA WEB (VIDEOS,
READINGS)
• MOOT COURTS & FIELD VISITS
• CONTENT
• DURATION: 3 WEEKS CLASSES; START: 11-30 MAY 2015
• REGISTRATION: 1 JAN. 2015
• CONTACT: [email protected]
• INFO: www:
http://www.bmg.eur.nl/onderzoek/eu_projecten/jean_monnet_
programme/teaching