Cross Border Healthcare & Patient Mobility: Public Consultation on Scotland's Transposition and Implementation of Directive 2011/24 EU on the Application of Patients' Rights in Cross-border Healthcare.

Article 7 - General principles for reimbursement of costs

11.1 Article 7 requires the patient's home Member State to reimburse the cost of cross-border healthcare, subject to the derogation in Article 7(2), which deals with healthcare provided under Regulation 883/2004.

11.2 Article 7(2)(a) does not apply to the UK. The derogation at Article 7(2) is a minor but complex adjustment in entitlements for pensioners residing in another Member State and is relevant to the UK. This essentially applies where the UK is what is termed the "Competent Member State" for a person in receipt of a pension (or a member of their family) who resides in another Member State - for example, a person receiving a UK state retirement pension who has retired to another Member State to live.

11.3 Broadly, when such a person returns to the Competent Member State for a visit, then any healthcare obtained during the visit, that is not subject to prior authorisation, shall be provided at the expense of the Competent Member State. "Pension" in this context includes the state retirement pension or any long-term contribution-based social security allowance such as Incapacity Benefit.

11.4 Returning to the provisions of Article 7, this confirms that a patient can seek reimbursement for cross-border healthcare from their home state if the same or equivalent treatment or services would have been made available to the patient by the home state healthcare System. This means that a patent who is entitled to NHS care can seek reimbursement for treatment obtained in another Member State if the NHS would have provided the patient with the equivalent treatment.

11.5 However, if the treatment would not be provided by the NHS it will not be eligible for reimbursement under the Directive. Article 7(3) sets out that it is for the Member State to determine the health services it provides to patients. That determination may be made at national, regional or local level. Article 7(4) allows states to either reimburse the costs to the patient after treatment or, if the State chooses to do so, pay the costs they are responsible for direct to the (EEA) provider.

11.6 Under Article 7(4), Member States may limit the amount of reimbursement to the cost of the treatment if it had been provided in the patient's home state. This is in accordance with existing domestic legislation which enables reimbursement to be capped at the equivalent NHS cost. Nevertheless, under Article 7(6) Member States must also have a transparent mechanism in place for the calculation of costs of cross-border healthcare that will be reimbursed. Any calculation must be based on objective and non-discriminatory criteria known in advance.

11.7 Under Article 7(9), Member States may restrict reimbursement for overriding reasons of general interest if the demand for cross-border healthcare or certain specific services is undermining the home system. Use of this discretion would require robust evidence that the measure was necessary to ensure sufficient access to a balanced range or healthcare or to control costs and avoid waste of resources.

11.8 Scotland would need to be able to show that such a restriction was proportionate and not discriminatory. Given the requirements for Member States to collect information under other parts of the Directive, it is likely that any damaging high level of demand would become apparent relatively quickly.

What to reimburse

11.9 The current mechanisms for reimbursing patients in Scotland are operated at local level by NHS Boards. Following work done in 2009/10, England, Scotland, Wales and Northern Ireland all put reimbursement regulations in place. These measures provide the current basis in law to reimburse patients (subject to certain conditions) and limit the level of patient reimbursement to the cost of equivalent NHS treatment.

11.10 The Directive requires transparent and objective mechanisms for the reimbursement of patient costs and for the criteria for reimbursement to be known in advance. The mechanisms for calculating NHS cost will be dealt with separately by administrative measures but the Directive requires Member State health authorities to be able to explain the reimbursement calculation and be able to justify it to applicants.

11.11 Reimbursement of primary care treatments and services will need to take account of the different arrangements that apply to different services.

Calculating reimbursable costs

11.12 Once the reimbursable items have been confirmed from receipts and any supporting documentation, there will be a need to calculate the cost of the same/equivalent treatment that would have been provided by the NHS and then compare this to the invoices and receipts. If the actual amounts paid for treatment in Europe are lower than the NHS costs, then the reimbursable amount is limited to the actual amounts paid (adjusted to take account of any deductible NHS charges).

11.13 If the actual amounts paid were greater than the calculated NHS cost (adjusted to take account of any deductible charges, etc.), then the calculated NHS cost is the maximum amount that may be reimbursed, in accordance with existing statutory provision.

Equity

11.14 One of the most evident potential inequalities arising from the Directive is the requirement that patients must pay in advance for their healthcare treatment within the EEA and then claim a reimbursement of eligible costs upon their return home. This clearly has the potential to exclude those without the necessary financial resources from accessing cross-border treatment.

11.15 For this reason, and building on the existing discretion of NHS Boards, we believe it would be appropriate for the Boards to have the discretion to make payment directly to overseas providers on behalf of the patient following treatment, in effect acting as a third party, since this is allowable under the Directive. However, it is imperative in allowing this that we do not invoke the NHS duty of care, as the NHS Boards will never be formally commissioning the treatment - they will simply be assisting the patient in exercising his or her individual rights.

11.16 This would not be the normal arrangement of preference under the Directive; we would expect most patients to pay the provider directly at the point of treatment and then seek reimbursement on return home. However, we believe that this is a discretion that should be available to NHS Boards for use where patients would otherwise struggle to meet the cost of treatment in advance, because of their financial circumstances. Any use of provisions to make payments direct to providers would be decided on a case-by-case basis and subject to satisfactory evidence that appropriate treatment has been provide. It would also be necessary for the provider and patient to agree with the relevant NHS Board acting as a third party and being in no way liable for the outcome of treatment.

Consultation questions

• Do you agree that NHS Boards should be able to make payments direct to overseas providers, where this would be beneficial for patients with limited financial means?
• If so, what safeguards would you like to see put in place?
• To what extent do you think these proposals will have a positive or an adverse impact?

11.17 Article 7(4) goes further by allowing Member States to reimburse the full costs of healthcare plus "other related costs", such as accommodation, travel and other expenditure that may be incurred by persons with a disability (e.g. in respect of an accompanying carer). However, the Directive recognises that this is a matter of discretion for Member States and that this may happen in accordance with existing national legislation. The Directive does not therefore create any new entitlements in these areas.

11.18 We have arrangements in place for the consideration of travel costs and those of accompanying carers. Where the cost of travel would be met for patients who need treatment in the UK, this provision will also need to be available where the patient decides to seek treatment in another EEA state. Although accommodation costs are not generally provided for, these may be considered on an exceptions basis.