Treatment in the EU: you’re free to choose: Cross-border healthcare under Directive 2011/24/EU

What is Directive 2011/24/EU?

Directive 2011/24/EU is a European piece of legislation regulating the access of European residents to medical treatment in the European Union. It does not deal with treatments beyond the borders of the Union. It covers the rights of people with health insurance in an EU Member State and thus does not concern itself with their citizenship, but rather only with the system they contribute to. The full text of the Directive can be found here.

Making use of rights under the Directive, a patient can choose to receive abroad any treatment that has an equivalent covered by their healthcare package at home. This treatment can be both emergency / unpostponable or routine and can be provided by both public and private medical centres. The patient has to cover out of pocket all costs of the treatment and can then claim reimbursement from their  national healthcare provider, up to the amount allocated for the same treatment in their country of insurance. 

According to Article 34 of the Directive it is also possible to reimburse additional costs which would not have been incurred by a treatment “at home”, such as travel and accommodation costs. This, however, is subject to the decision of each member state. 

Do you need a prior authorisation of your treatment?

A limited number of treatments can  be subject to prior authorisation and it is important for patients to check the full list of these treatments for their healthcare provider. Only treatments that include either highly specialised and cost-intensive medical equipment, a particular risk for the patient or the population and / or an overnight stay in a hospital can be included in the national lists of the treatments requiring prior authorisation. 

If the treatment falls under this list, authorisation has to be requested by the patient and granted by the healthcare provider before the start of  the treatment in order for any costs to be then reimbursed. Where the patient is entitled to healthcare and that healthcare cannot be provided within a time limit which is medically justifiable, the member state of affiliation should in principle be obliged to grant prior authorisation unless it poses a considerable risk to either the patient or the general population. If this is the case, the patient has to be redirected to an alternative (Art. 45).

If the treatment requires prior authorisation, however, the patient also would usually fulfil the requirements of the Twin Regulations of Social Security Coordination. If they do, authorisation for the treatment has to be granted and the benefits have to be provided in accordance with   Regulation   (EC)   No   883/2004   unless   otherwise   requested   by   the   patient (Art. 46 of the Directive). You can find out more about the Regulations here: S1 Procedure, S2 Procedure, and EHIC.

As the cost of treatment differs significantly between countries, it is important to keep in mind that, under the Directive, only the amount allocated for it in the country of affiliation has to be reimbursed, and only up to the actual cost of the treatment. This may mean that, for example, a Bulgarian patient seeking treatment in Germany could be left with having paid a vast sum out of pocket, only to receive back a small portion of it. A German seeking treatment in Bulgaria, on the other hand, could be reimbursed in whole if the cost amount allocated for their treatment in Germany is higher than in Bulgaria. 

What’s behind the Directive?

The European Court of Justice (ECJ), the institution responsible for the settlement of disputes arising between European citizens and their respective national administrations on topics related to the implementation of European legislation, started receiving a growing number of cases dealing with planned cross-border healthcare. It became apparent that a formal procedure for cost coverage should be devised beyond the mere (and voluntary) tweaks of national law in accordance to the newest case rulings of the court. Thus, the process of codifying the already forming case law of planned cross-border healthcare into a designated directive commenced [1,2,3,4].

The first main characteristic distinguishing the newly proposed directive was the shift of frames in regard to the topic of healthcare. It remains connected to the concept of healthcare as being a service, but the recipient is now no longer a “mere” consumer, a recipient of said service. Now, the right to healthcare is put to the forefront. Article 26 of the Directive, for instance, states: “The Treaty provisions on the freedom to provide services include the freedom for the recipients of healthcare, including persons in need of medical treatment, to go to another Member State in order to receive it there. The same should apply to recipients of healthcare seeking to receive health care provided in another Member State through other means […]”.  

Furthermore, the Directive significantly relaxes the constraints to receiving care in another country. Under it, almost all medical care, regardless of its level of urgency or type of provider, can be chosen and paid upfront by the patient, who can then claim reimbursement up to the amount this treatment would have costed at home. Only a limited selection of treatments meeting certain criteria have to undergo the procedure of prior authorization by national healthcare providers. This procedure, along with the rule that the treatment must be included in the regular care package of the country of insurance of the patient, is the only option for national healthcare providers to limit the choice patients have. Thus, opportunities for patients to circumvent both administrative delays and long hospital queues and to receive often lifesaving and previously unattainable treatment have been provided. 

At the same time, however, a plausible threat to both budgetary and organizational independence at the national level was created, prompting heated resistance by some member states and delaying the start of the process of transposing Directive 2011/24/EU into national law by two full years, to October 2013. It soon became apparent, however, that the speed of this process will differ greatly from state to state, along with the practicalities of its implementation [5]. 

It has since been argued that two main determinants for those variations can be defined. Firstly, the readiness of separate member states to adapt their national legal frameworks in real-time in accordance with any new rulings by the European Court of Justice. For highly ready and proactive states, the Directive and its transposition process brought much less need for changes, as the bulk of them had already been implemented preemptively. Secondly, it has been observed that states with a unitary national health provider had taken longer to implement the changes needed, which were also larger in magnitude. Furthermore, and according to expectations, countries which displayed stronger misgivings for the adoption of the Directive in the first place (such as Malta or Poland) also took longer to transpose it into national law [4,6,7]. Lastly, the inherent differences between the healthcare systems of the member states provide for another reason for the mis-paced implementation [8].

[1] European Commission, (2009) The European Parliament and Council on the Application of Patients’ Rights in Cross-Border Healthcare—Impact Assessment. Brussels: Directorate-General for Communication

[2] Baeten R. (2012) “Europeanization of national health systems, National impact and EU codification of the patient mobility case law.” EPSU and OSE.

[3] Frischhut M., Levaggi R., (2015). “Patient mobility in the context of austerity and an enlarged EU: The European Court of Justice’s ruling in the Petru Case”, Health policy (Amsterdam, Netherlands). 119, 1293–1297

[4] Azzopardi-Muscat N., Baeten R., Clemens T. (2018) “The role of the 2011 patients’ rights in cross-border health care directive in shaping seven national health systems: Looking beyond patient mobility”, Health Policy Vol. 122(3), 279-283

[5] European Commission, (2014), Report from the Commission to the Council and the European Parliament compliant with the obligations foreseen under Article 20(3) of 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, Brussels: Directorate-General for Communication

[6] Kowalska-Bobko I., Mokrzycka A., Sagan A. (2016). “Implementation of the cross-border healthcare directive in Poland: How not to encourage patients to seek care abroad?”, Health Policy 120, 1233-1239

[7] Helena, R., (2016). “Cross-border Healthcare Directive: Assessing Stakeholders’ Perspectives in Poland and Portugal”, Health Policy 120(4), 369-376

[8] Wendt, C. (2009). “Mapping European healthcare systems: a comparative analysis of financing, service provision and access to healthcare.” Journal of European Social Policy, 19(5), 432–445