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Closing the gap

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“Countries are opposing the directive for very simple economic and logistical reasons - they feel that as it stands the directive will make them victims rather than beneficiaries”
-Dr Constantine Constantinides

On 2 July 2008, the EU Commission unveiled a healthcare package designed to make it easier for patients to get medical treatment elsewhere in the EU. Aimed at ensuring a clear and transparent framework for the provision of safe and high-quality cross-border healthcare within the EU, the commission issued a proposal for a directive on the application of patients' rights in cross-border healthcare. Under the proposals, patients would not have to get their doctor's approval for non-hospital care abroad and would be able to claim up to the amount of what their treatment would have cost in their home country.

Jo Leinen, Chairman of the European Parliament's ENVI committee on cross-border healthcare, believes that EU health policy should give equal access to all citizens to quality healthcare. He says that policies should be centred on the patients and should aim to reduce inequalities in healthcare between and in the member states. "The EU can offer added value for the member states by providing instruments for sharing good practices, knowledge and information across national borders, by supporting research and by pooling resource," explains Leinen, who goes on to explain the potential benefits of the cross-border healthcare directive. "It aims to introduce rules for the provision of healthcare in member states difference form the patient's country of affiliation, as well as to recognise prescriptions from other member states. The rulings from the European Court of Justice (ECJ) make it clear that there is a need for legislation on patient mobility. The definition and set up of these policies must, however, not be left to the ECJ, but to the elected representatives of the citizens."

Leinen believes that in a 'Europe without borders', freedom of movement should be applied to the healthcare sector and set up in a favourable way to patients, while at the same time ensuring that the principles of access to appropriate healthcare in a geographical proximity is taken into account. He says that the field can become a prime example of how the EU is working to improve the quality of life, and in particular the healthcare conditions, of its citizens. "Already a citizen of one member state is entitled to healthcare in any other member state when the purpose of the stay was not medical treatment - for example, in the case of accidents of sudden illnesses and the costs of the treatment will be covered by the public health insurance system of the home country. Furthermore, planned healthcare in another member state is possible, if the treatment cannot be provided in the home country. However, problems with implementing the underlying EU regulation on the coordination of social security schemes remain and must be addressed in the EU legislation."

Currently, with a lack of legal certainty regarding the entitlements of patients to seek healthcare in other member states and more specifically the limits that member states can impose on such healthcare abroad and the level of financial coverage. "Patients are left in a state of legal uncertainty," claims Leinen. "The EU is now seeking to clarify this situation with the goal to improve the mobility of patients. In particular the issue of pre-authorisation of treatment in other member states needs to be clarified again, in order to ensure that the functioning and the financial liability of national healthcare systems remain intact."

Last April, in the first reading of the directive, the European Parliament made it clear that the proposal was not about the free movement of health service providers but about patient's mobility and underlined that the autonomy of the health systems in member states remained untouched. The parliament also voted in favour of the proposal to establish a European Reference Network of highly specialised centres that will provide high quality care to patients to receive information and to share their experiences. The network could also help maximise the cost effective use of resources, as well as develop standards and benchmarks.

Since the original proposal for a directive in 2008, little progress has been made towards it. In fact in December 2009, almost 18 months on, 11 out of 27 countries, including Spain, Greece, Poland and Lithuania, blocked the ratification of the draft European directive on cross-border healthcare. So why is there such opposition to a directive that is looking to improve healthcare systems across Europe?   

Dr Constantine Constantinides, CEO of healthCare cybernetics, based in Greece, one of the opposing countries to the directive, believes that the impact on healthcare and its delivery will be negligible. He says that while the directive may lead to a 'forced' improvement of the quality of care and increased efficiency at home, as people are discouraged from seeking treatment abroad, it will create a logistical headache. "Some feel that the directive will lead to the emergence of new centres of excellence - facilities specialising in certain conditions - and becoming good at this because of the experience and knowledge associated with treating large number of 'same condition' patients," he says. "Certain technocrats, with incomplete understanding and appreciation of how healthcare delivery and consumption works, felt that this would allow for the more efficient distribution of care provision. For example, they cited the possibility of an EU as opposed to a national waiting list system. This would alleviate congestion at some hospitals whilst providing work and revenue for hospitals with spare capacity."     

In January 2010, a group of 'global health experts' at the London School of Hygiene and Tropical Medicine and the Indian Institute of Management in Bangalore suggested flying British NHS patients to India, where there were no waiting lists and costs were considerably lower. The government ruled it out, probably for political reasons, but even on practical grounds, shunting patients between countries even if it is to 'near-abroad' (less than a three-hour flight), is not feasible, says Constantinides. "At the International TEMOAS Conference in Cologne in November last year, my presentation looked at the concept of distributed healthcare delivery, where the difference elements of the care cycle could be provided at different locations and by different providers - the opposite of a one-stop shop. I had to conclude that this, though technically possible would be a compromise solution as opposed to a choice solution, and definitely not in the best interests of the patient."

And it's not just continuity of care that is an important consideration in the directive, Constantinides believes that the first big challenge to the successful implementation of the directive refers to the provision of 'legal certainty', the definition of which is currently still missing from the proposal. "Countries are opposing the directive for very simple economic and logistical reasons - they feel that as it stands the directive will make them victims rather than beneficiaries."

He also reveals a number of other technical stumbling blocks that he believes mean that the proposal is currently unworkable, including the direction of patient flow, problems around financial responsibility and reimbursement, patient safety and non-implementation of e-health. In terms of direction of flow, some countries fear they would be inundated by foreign patients, whilst others fear the financial and political implication of their citizens feeling the country for treatment abroad.

Financial responsibility and reimbursement, including issues such as costing, pricing and payment procedures, has not been resolved, says Constantinides. He believes the Disease Related Grouping System (DRG) suggested for costing and pricing services is flawed and can only work if there is a large movement of patients and a balanced flow, which will tend to cancel out any credit and debit injustices. 

The third issue - responsibility for ensuring patient safety - will involve the dispatching country taking responsibility for the safety of the patient going for treatment abroad, and, if nothing else, the authorities should be able to advise the patient on suitable and reliable healthcare facilities. Constantinides explains that furthermore, the authorities, or payers, will need to know who they will be dealing with, for example, whether the hospital or facility has some form of accreditation or medical staff with appropriate and adequate insurance cover.

Constantinides also highlights the important issue of e-health. While governments of EU countries have spent millions of Euros on e-health initiatives, almost a decade later there is still no one consistent or broadly implemented system in clinical practice. This poses a huge challenge and Constantinides points out that the other issues of concern cannot be successfully addressed in the absence of universal e-healthcare adoption and implementation.

Constantinides believes that unfortunately the blocking of the directive by certain member states will change very little. He believes that during 2010 governments around Europe will have many other economic and finance related priorities. In fact, as it is, we are seeing even the best-run EU countries announcing freezing or cuts in healthcare-related spending. "Contrary to simplistic reasoning and thinking, during the recession we have documented a sharp drop in patient mobility and medical tourism. During a recession the associated uncertainty about jobs and personal financial viability, means people are put off going abroad for care - unless it is absolutely necessary of course."

Unlike Constantinides who foresees a logistical headache in the formation and implementation of the directive, Dr Uwe Klein, CEO of Germany-based Health Care Strategy International, believes that the healthcare system across Europe will benefit from increased quality and financial aid and sees a certain amount of innovation injected back into the industry, because countries will need to stay competitive in order to keep - and perhaps attract - patients. "The cross-border healthcare directive is important because it gives all the nationals of EU countries the right to select a healthcare provider of their choice. And udoubtedly there will now be a big stimulus for more customer orientation in the healthcare system," he says. "As we all know, a focus on customers is not always a big issue for some medical institutions, so it seems this will become increasingly important as patients become more challenging in the types of services they demand."

While Klein admits that the main challenge for the directive is the highly fragmented situation it is - for instance, there are various regulatory legislations across the region and the delivery system will need to be standardised, he says that this not the intention of the directive, it is simply about opening up more choice for patients to select their healthcare provider. "We're living in a democratic market and as such there are many private initiatives that are trying to ensure patients are as mobile as possible in terms of their healthcare choices. There are German insurers for example who are going abroad and setting up contractual networks with partner clinics. And beyond that there is a very clear jurisdiction from Brussels in the compensation of patients who have a reason to go abroad, such as long waiting lists and so on. If patients knew more about this, or if patients could get legal advice from a host country as opposed to their home country, the national health system would need to pay for it. This has occurred many times and every patient has won their case."

Klein and Constantinides both believe that the setback was not unexpected, however, they also believe that it brings a welcome opportunity for the EU to take the directive back to the drawing board and re-draft it. However, Constantinides is quick point out that a revised draft of the directive is yet to be seen. "If there are any individuals involved in any 'back to the drawing board' activities, they are keeping very quiet - we have not seen any signs that even a draft of a revised directive exists. Practical and logical recommendations submitted during the original consultation, for the most part, seem to have been ignored by those drafting the directive. And it's unlikely we will see a second consultation. All I can say is that unless the identified issues of concern are not only addressed but also resolved, we are unlikely to see any countries having a change of heart and rushing to sign."

Uwe goes on to explain that the current directive discussions have been frozen due to the financial crisis. "I think we will just have to wait and see. But, it all goes back to patient mobility, which has a basis in the philosophy of human rights and thus won't go away - it's the basic right of EU nationals to make a decision about their lifestyle and healthcare has to be part of that - it just needs to be feasible and organised so that the right systems are in place to allow this."

Constantinides agrees that there will absolutely not be a definitive ratification whilst Europe remains in recession. In fact, he goes as far as saying "god only knows" when asked about the next step for the directive. "Even before the directive was vetoed, we started seeing the issue opportunistically included in the agenda of conferences. After the veto, we started seeing 'topic-specific' conferences being opportunistically staged 0 with academic, politicians, techno-bureaucrats and some real medical tourism insiders going round in circles, inconclusively regurgitating the same old mash - what comes out of these debates, presentation and deliberations can be best described as waffling."

Leinen, Chairman of the European Parliament's ENVI committee on cross-border healthcare, concludes by saying that the Spanish presidency have promised to continue working on the directive and that in the meantime, Europe will rely on ECJ rulings when it comes to cross-border healthcare and treatment. "The parliament will certainly not reduce the pressure on the council to work on this proposal and come forward with solutions and it will not allow member states to abandon this important dossier." Indeed, with the proposal at a critical turning point the very success of the directive depends on it.

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Tackling challenges

Dr Constantine Constantinides has a number of recommendations in regard to the challenges currently up against the directive:

Direction of Patient Flow: With regards to patient flow, we recommend that a study be commissioned (which could take the form of European action) to study the direction of patient flow, the volume and economic dimensions. The findings of the study should be used to pre-emptively instigate suitable measures aimed at averting disruptive challenges to the health systems of EU-member states likely to be net recipients of patients.

Financial Responsibility/Reimbursement: As for financial responsibility/reimbursement, we again recommend, as a first step, that an EU-wide survey be conducted to determine which healthcare facilities are DRG and eBilling compliant, and can thus participate in the scheme envisaged by the directive. Furthermore, laggards should be encouraged or helped to conform. And as I commented already, the DRG system is flawed, but this is the best we have for now.

Responsibility for ensuring patient safety: When it comes to responsibility for ensuring patient safety, we suggest that the authorities in the EU-member states involved in cross-border healthcare, collaborate to compile a (dynamic) database of assessed and approved healthcare facilities/providers. This database should be centrally stored and accessible by all interested parties. This database could be consulted by patients, authorities and referring physicians - for the obvious reasons.

Implementation of eHealth: Finally, on the issue of implementation of e-health, we have a similar recommendation - that an EU-wide survey be conducted to determine which healthcare facilities are e-health compliant, and can thus participate in the provision of cross-border health services. Furthermore, laggards should again, be encouraged or helped to conform. And of course, we will need to establish a new profession, that of Professional Medical Coder. In this regard, healthCare cybernetics has taken the initiative of developing a Medical Coder Course and plans to soon offer seminars on the subject.

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Aims

The three stated aims of the cross-border healthcare directive are:

  • To help patients exercise their rights to access cross-border care
  • To give patients assurances about the safety and quality of cross-border healthcare
  • To help national health systems cooperate and achieve economies of scale

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