REIMBURSEMENT AFTER OBTAINING CARE ABROAD

No EU country can refuse to reimburse a patient for ophthalmic treatment just because the patient failed to obtain prior authorisation for the procedure, the EU’s highest court has ruled.

According to the European Court of Justice, an EU country must reimburse its own citizens for outpatient medical care they receive in another EU country unless that care requires the use of “major and costly equipment.â€

In arriving at its decision, the Court of Justice struck down a Portuguese law that imposed strict rules on patients who wanted to obtain any medical care outside of the country. Unless such patients met strict requirements and received approval before leaving the country for their treatment, they would not be reimbursed for that treatment from the Portuguese health service.

Under the Portuguese law, patients could receive reimbursement of foreign medical care only if such care were “highly specialised†and not provided in Portugal. To prove that the care was of such kind, the patient was required to obtain:

1. Detailed medical report in favour of the treatment from his or her treating doctor;

2. Approval of that report by the medical director of the local hospital service;

3. Consent to the proposed treatment by the director general for hospitals.

The decision of the Court of Justice, handed down from its headquarters in Luxembourg in late 2011, capped a five-year dispute between the Portuguese government and the European Commission. In October of 2006, the commission, which is the EU institution charged with ensuring that EU countries comply with EU law, informed the Portuguese government that the prior authorisation requirements violated EU law. For its part, the Portuguese government insisted that the prior authorisation requirement was necessary and appropriate to maintain the financial stability of the Portuguese health service by limiting the amount of money it spent on citizens travelling abroad for medical treatment that was already available at home. The government also argued that the prior authorisation requirement also protected its citizens by ensuring the quality of the medical service that they received abroad.

Infringement action

After four years of diplomatic and administrative wrangling about the purpose and effect of the prior authorisation requirements, the commission sued the Portuguese government in a so-called infringement action to bring the Portuguese government to the Court of Justice for a definitive ruling about the prior authorisation requirement.

In the action, the commission alleged that the Portuguese system for reimbursement of non-hospital medical care was incompatible with the right of EU doctors to provide medical services to their patients. That right is enshrined under the so-called “freedom to provide services†provision of Article 49 of the EU Treaty.

The court agreed with the commission and ruled that the Portuguese law was illegal because it infringed the freedom to provide services.

The court ruled that freedom to provide services precludes the application of any national laws that make the provision of services between EU countries more difficult than the provision of services within an EU country.

According to the court, the prospect of a possible refusal to reimburse the medical costs as a result of an unfavourable administrative decision is, in itself, clearly liable to deter the patients concerned from approaching a provider of medical services in another EU country.

The court also noted that under Portuguese law, a patient could receive reimbursement for medical costs incurred abroad only in exceptional cases, where the treatment needed by that patient was not available under the Portuguese health system. By its very nature, that condition severely limited the circumstances under which such authorisation could be obtained, the court observed.

After looking at the effect of the Portuguese law, the court then assessed whether the Portuguese government could establish any acceptable grounds for insisting on such restrictive rules. In doing so, the court was following its own previous judgments, in which it had ruled that an EU country could impose prior authorisation requirements on patients who were seeking medical care abroad that involved the use of “major and costly equipment.â€

On that point, the court stated that, on the evidence, there was no indication that removal of the prior authorisation requirement for that type of care would result in patients travelling to other countries in such large numbers that the financial balance of the Portuguese social security system would be seriously upset. The court added that if insured persons go without prior authorisation to an EU country other than that in which their sickness fund is established to receive treatment there, they can claim reimbursement of the cost of the treatment given to them only within the limits of the cover provided by the health insurance scheme in the EU country in which they live.

The court also rejected the Portuguese government’s argument that the prior authorisation requirement would protect its citizens by ensuring the quality of the medical service that they received abroad.

On that basis, the court concluded that Portugal had failed to fulfil its obligations under the principle of the freedom to provide services, by unfairly inhibiting its citizens from obtaining outside of Portugal any highly specialised non-hospital treatment that did not involve the use of major and costly equipment.

For details of the judgment, see the Court of Justice website at: www.curia.eu.