Trans-border access to care : a view from the European Court of Justice

1. Trans-border access to care : a view from the European Court of Justice Piet Van Nuffel European Conference on Rare Diseases Luxembourg 21 June 2005

2. Legal framework for regulating access to health care • Limited powers for the EC • Organisation of healthcare/ maintaining the financial balance = falls mainly to the Member States • Member States must respect • EC Legislation • Free movement principles

3. Right to medical care abroad under EC Regulation • If insured person abroad needs treatment in State of stay (E111) • If insured person is authorised to go to other State to receive there treatment (E112) • Entitlement to benefits under terms of the host State • Authorisation not to be refused by home State if: • benefits covered in home State • treatment not available there within time-limit medically justifiable given patient’s state of health

4. Right to medical care abroad outside EC Regulation (1) • Kohll and Decker • requirement of authorisation under scrutiny: • Barrier to free movement of goods or services • Can it be justified? • Financial balance of social security system • Objective of maintaining a medical and hospital service open to all

5. Right to medical care abroad outside EC Regulation (2) • Requirement of authorisation justified for hospital care (Smits/Peerbooms and Van Riet) • necessity of planning of number of hospitals, geographical distribution, mode of organisation, equipment and nature of the medical services • aim of controlling costs and preventing wastage of financial, technical and human resources • ensuring sufficient and permanent access to high-quality hospital treatment

6. Patient mobility dependent on type of social security system? Scope of application of patient mobility rights (with distinction ambulatory / hospital treatment): • home State with reimbursement system (Kohll and Decker) • home State with system of benefits in kind + agreements with « contracted providers» (Smits/Peerbooms and Müller-Faure/Van Riet) • No discrimination between non-contracted providers in home State and abroad • home State with national health service (Watts?)

7. Conditions for grant of authorisation • Benefits to be covered (Smits/Peerbooms) • Requirement of « necessity » for treatment abroad (Smits/Peerbooms) • No necessity if same or equally effective treatment available without undue delay • Are waiting lists relevant? (Müller-Fauré/Van Riet; Watts?)

8. When is an insured person covered for treatment abroad? • Treatment while staying abroad • no authorisation needed (E111) • covered under host State terms • Ambulatory care abroad • if authorised with E112: covered under host State terms • without prior authorisation: reimbursed under home State terms • Hospital care abroad: prior authorisation needed • if authorised with E112: covered under host State terms • reimbursed under home State terms if authorised otherwise

9. Patients’ mobility rights: challenge for healthcare? • Administrative complication • Stimulus for structural change? • Will the Court eventually get guidance from our political representatives?