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Lecture 7 European Labour Law and Social Security Law
This document contains all the notes I took during lecture 7 of the course 'European Labour Law and Social Security Law'. I passed this course with an 8!
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Voorbeeld van de inhoud
Lecture 7 Coordination of Healthcare and Health Insurance SchemesCertain directives about this topic are not included in the Blackstone. You will receive the
relevant articles attached to the exam. That will only be the articles of regulation 883. With
this topic, we don’t give you the patients’ right directive. You can answer it on the bases of
case law during the exam, or when you know the articles by hard of the patients right
directive, you can of course write this down. The relevant articles are 7, 8 and 9. If you read
these articles once, you will find out that it is the codification of the case law.
Overview
This is a social security topic. The question is not whether or not you are entitled to have
treatment in the other Member State. This is most of the times guaranteed at national level.
The question is always: who is going to pay the bill? Does your insurance have to pay for the
costs? What we have seen two weeks ago, if you want to answer a social security question,
in this case a healthcare question, first look in regulation 883. If you can benefit from 883, it
is the best. There is the guarantee that you get the healthcare and that your sickness fund
will have to pay the bill in full. This is laid down in article 35 of Regulation 883. Often there
will be a reimbursement of the costs. If you go to the Belgium doctor, they will pay your costs
but they will reimburse the costs from the Dutch insurance.
So main rule: when 883 applies, the bill is paid fully. We have more sources for cross border
access to healthcare, because 883 does not cover all the topics of cross border access to
health care. In brief, almost all situations are covered by 883, with the partial exception of
planned care. The individual is working and living in one member state and wants to travel to
another member state for the sole purpose of obtaining health care. There 883 has
limitations. To overcome these limitations, we have to look at the case law of the court that
has now been codified in the patients’ right directive.
Regulation 883/2004
The Decker-Kohll Revolution
The case law meant here was referred to as the Decker Kohll Revolution. Until these rulings
of 1998, if you wanted to go as an insured patient to another Member State, for the sole
purpose of getting healthcare, you had to pay the bill yourself. In these provisions the court
applied the freedom of goods and services and held that these rules, which don’t apply for
the reimbursement for planned care, are a prohibited obstacle in principle for the freedom of
movement. This lead to so much controversy. The Member States, supported by the EU
institutions, tried to stop the court by adopting the patients’ right directive.
Patients’ Rights Directive of 28 Februari 2011
It codifies the case law of the court. Since 2011 you can say that the expansion of the case
law of the court has come to a standstill. The court is no longer so progressive, in fact it is
quit conservative these days.
Regulation 883/2004
1
,First you need to know whether or not 883/2004 is applicable. You have to check the
personal scope, the material scope and establish what the competence state is. We saw this
2 weeks ago, look at articles 11, 12 and 13. These articles will give you an answer to the
question: where am I ensured for health care?
Then we have all separate chapters for the different benefits. There is one chapter on
sickness benefit. There rules are simple, but quite tricky. This has to do with the fact that the
whole chapter covers two types of benefits, which are referred to as:
Benefits in Kind
In essence, this is healthcare and every imbursement for healthcare. What are you ensured
for? What should your insurance pay?
Cash benefits
This is unrelated to the medical care that you need. These are income replacing benefits for
people who become sick. When somebody becomes sick, you need to see a doctor and
secondly you are not able to work and are depending on unemployment benefit.
These are two different types of benefits which are both included in the chapter on sickness
and maternity benefits. It is important to keep in mind the difference between these two
benefits. The coordination rules differ on one point fundamentally. First of all there is one
thing the same. In both cases, the competent institution pays and has to bear the costs.
Example: I am living and working in the NL, I get healthcare somewhere else, when I am
covered by 883, the costs will be bared by my sickness fund or insurance. When I am in
another Member State and I get sick, I am entitled to get an income replacing sickness
benefit and again, my social security institution has to pay. This is a very logical starting
point. The competent state is also the one who receives the premiums for both types of
benefits. So you can say that there are two types of benefits, one for healthcare one for
sickness benefits, and in real life you have to pay premiums for both separately. Both are
related to sickness.
The difference is, that with benefits in kind, these are provided in accordance with the
legislation of State of treatment. Cash benefits are provided in accordance with legislation of
competent state (export). What does this mean?
Example: I work and live in Belgium and I go to Germany for health care. What am I entitled
to? The German legislation is answering the question. According to German legislation,
physiotherapy is covered. This is not the case in Belgium. When I only work and live in
Belgium and I go the Belgium doctor, it is not reimbursed. Because it is not in the insurance
package. When I go to the doctor or to a physiotherapist in Germany and it is covered by the
German legislation, then I am entitled to it. Even though I don’t pay premiums for
physiotherapy in Belgium. So to know what is covered, you need to look at the legislation of
the country where you seek treatment.
2
, With cash benefits, it is different. When I am living and working in Belgium, and I happen to
be in Germany or I live in Germany and I only work in Belgium and I become sick, what am I
entitled to? Sickness benefit provided in accordance with Belgium legislation. This make
sense, the one who is receiving the premiums should also pay. With benefits in Kind it is
weird, you are entitled to physiotherapy although Belgium deliberately has chosen to exclude
this from the insurance package.
This makes sense if you look at it the following way. The benefits in kind are provided in
accordance with the legislation of the State of Treatment. If I am a doctor, a doctor gets
patients from all the Member States, and he wants to know whether or not the insurance is
covering the costs. Is he going to get his money? If the rules were different, he would have to
check every time the legislation of the Member States were the patient come from to find out
whether or not he would get his money. This is very impractical, so they have decided that
German doctors (in our example) only apply German legislation. They only have to know
German legislation. In some situations, it is for the insurance negative. For example in the
case of physiotherapy. It does not provide physiotherapy, yet it still has to pay. The other
way around can be possible too. If orthodontists are covered by German law, but not by
Belgium law, then that person who is insured in Belgium but living in Germany, has to look at
German legislation and he will find out that he is not entitled to it. Then it works out positive
for the institution, but negative for the patient. Same holds for students or tourists. To find out
whether or not your insurance will pay the costs, look at the legislation of the state where you
receive the procedure. It is irrelevant what your own insurance states in the country where
you are insured for benefits in kind of healthcare. For cash benefits however, you go to the
standard rule of the state where you are insured.
With cash benefits, there is one controversially issue in cross border situations. That is the
question: who is determining whether or not somebody is actually sick? In the case law we
have seen Italians who were insured in Germany. They went on a holiday to Italy for three
weeks. In the last week they went to an Italian doctor, and the doctor concluded that they
were sick. The whole family was suddenly sick. In all these cases the question arises: who
should determine whether or not someone is actually sick?
The starting point is that Italian doctors establish whether someone is sick or not. In these
cases however, the doctor who was telling them that these people were sick was a good
family friend. How do we correct that? In essence, the German insurer (in the Germany
system it is the employer) is entitled to ask a second opinion and pick an own doctor in Italy.
If there is a suspicion of abuse / misuse, the insurer can ask for a second opinion by a doctor
he chooses. In practice, the misuse and the abuse form a big problem.
Molenaar
We have seen that there are different rules for benefits in kind and cash benefits. Different
legislation is applicable. What is the difference between a cash benefit and a benefit in kind?
3
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