Bulgaria loses legal case on cross-border healthcare

 

A new legal ruling will affect new EU rules on cross-border health care. A series of rulings by the European Court of Justice (ECJ), beginning over a decade ago, established that healthcare could be sought by EU citizens in any member state, while patients seeking such cross-border healthcare were entitled to have their costs covered by their own health systems. This prompted the European Commission to adopt a proposal for a directive. The proposal was intended to provide more clarity about possibilities to seek healthcare in another member state and to set out rules on responsibility insofar as quality and safety of care in cross-border settings are concerned.

The proposal was confirmation of the ECJ rulings that citizens could seek treatment anywhere in the EU and be entitled to claim reimbursement in their home countries. Patients could therefore seek non-hospital care, such as dental treatment and medical consultations, without prior authorisation but they were obliged to obtain prior authorisation in relation to in-patient procedures, such as surgery.

A ruling delivered in October by the ECJ dealt with cross-border healthcare in the EU. It went one step further from the proposed directive. The court was asked by a Bulgarian court to give a preliminary ruling on whether the national health system of Bulgaria was obliged to pay for the medical treatment abroad of any Bulgarian who was unable to receive treatment in the country within the time normally necessary for the treatment, after taking into account the patient’s current state of health and the probable outcome of the medical problem.

Georgi Elchinov was diagnosed with malignant cancer in his right eye. Bulgarian doctors recommended eye surgery, a procedure that could be carried out in Germany, but could effectively save his eye, unlike the procedure carried out in Bulgaria. He applied with the national health insurance fund to be allowed treatment abroad, but since the case was urgent and the answer took a long time, Elchinov left for Berlin, only to learn later that payment for the surgery had been denied. He underwent treatment in Germany and his eye was saved. Elchinov sued the fund in the Sofia Administrative Court and won. The fund then filed appeal proceedings before the Supreme Administrative Court, and eventually the ECJ was asked to give a preliminary ruling.

In its decision, the European Court held that the refusal on the part of the health insurance fund was out of line, and maintained that the fund was obliged to pay for healthcare and treatment of Bulgarian citizens abroad if they could not receive such treatment in the country at all or on time, depending on the ailment. The court established that excluding in all cases payment for hospital treatment given in another member state without prior authorisation was unreasonable, especially in those situations where the patient is prevented from applying, or unable to wait, for such authorisation.

So, if a patient sought treatment abroad before having the agreement of the fund, the patient is still entitled to reimbursement in circumstances where the member state could not provide timely or alternative cure. In coming to its decision, the court rejected the argument put forth by the insurance fund and the Bulgarian government that the occurrence of such situations could undermine hospital planning and the financial balance of the social security system. The court ruled that Bulgarian law constituted an unjustified restriction on the freedom to provide and obtain services.

This legal ruling is significant, as the legislation of a member state cannot exclude across the board reimbursement for hospital treatment given in another member state to a patient without prior authorisation. While this judgement was given in relation to a specific case, national institutions of other member states are still obliged to follow the guidelines established by this ruling in setting out their own policy on entitlement to reimbursement for cross border healthcare since the court’s decisions are mandatory for all similar institutions with similar cases across the EU.

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