The EU directive on cross-border healthcare is likely to bring with it dramatic changes to the provision of and access to healthcare. Elisabetta Zanon explains what it means for organisations in the UK.

With the implementation of the EU directive on cross-border healthcare, the way healthcare in Europe is planned and the range of providers to which patients have access could look very different in the years to come.

The directive clarifies the rights of patients to receive healthcare in other EU member states. Legislation that will extend patient choice beyond national borders, with significant implications for both NHS commissioners and providers, will come into force in the NHS in October 2013, following a consultation with the Department of Health.

The rationale underpinning the directive is that it should be as easy as possible for patients to access healthcare abroad, subject to the same conditions that apply to accessing it at home. The legislation confirms that it is always the home health system that decides which healthcare is available to its citizens, regardless of whether they are treated at home or abroad.

In the case of the NHS, patients will be required to have their eligibility to healthcare assessed by a GP. This provision is particularly important to the NHS which, unlike social insurance systems, does not have a “basket” of healthcare to which all patients are entitled.

The directive gives EU member states the option of introducing prior authorisation for patients seeking care abroad for healthcare that is subject to planning requirements and involves at least one night in hospital, or that requires the use of highly specialised and cost-intensive medical equipment.

Authorisation can only be refused in limited circumstances – for example, when a patient could be exposed to a high safety risk that cannot be regarded as acceptable – and decisions have to be taken in an objective and non-discriminatory manner. Authorisation cannot be refused when a patient is experiencing “undue delay” in receiving treatment. If there is no formal definition of what constitutes undue delay, judgements must be based on a clinical assessment of what is a medically acceptable period for the individual clinical circumstances of the patient.

The cost of care

The directive clarifies that commissioners are not required to pay more than the cost of a patient’s treatment if it were provided by the NHS. There is no requirement to pay travel, accommodation or other expenses that would not be covered if treatment were provided by the NHS.

One of the biggest issues about cross-border healthcare is how domestic costs are determined. The directive states that each country should have a transparent mechanism for calculating the reimbursement to which a patient is entitled, but the detail of this is left for each country to determine.

For NHS healthcare that is not covered by tariff – currently around 60 per cent of care – defining reimbursement levels could be tricky given that prices are subject to negotiations and variations between providers and commissioners. Where tariff does not exist and it is not possible to determine an average cost or to unbundle costs, the NHS will have to pay the full cost of the treatment in another member state, even if that is higher than the NHS cost. This is because there is an absolute requirement for transparency on reimbursement levels and, if commissioners cannot be clear, the NHS must pay the actual cost.

In terms of quality, safety and liability of care, responsibility rests with the country in which the healthcare is provided. This means that standards set by the Care Quality Commission will not apply to treatment provided abroad and NHS hospitals treating patients from other EU countries will do so according to the NHS and its regulators’ standards.

So what will be the main implications for providers and commissioners? It is unlikely there will be a large increase in the numbers of patients travelling abroad. Currently, these are small – it has been estimated that roughly 1,000 UK NHS patients a year go abroad for care. But commissioners should be mindful that one of the reasons given by patients for travelling abroad is the opportunity to receive treatment more quickly. So if NHS waiting times increase in the coming years, there could be larger numbers of patients looking to access NHS funded healthcare abroad.

The directive is also not expected to have major impact on budgets because, in principle, reimbursements are no higher than the costs of NHS treatment. Commissioners must, however, bear in mind that authorisation cannot be refused in cases of undue delay.

With the NHS expected to move to a system of greater local variation under government reforms, a key issue will be for commissioners to have a clear “list” of the types of healthcare they do and do not provide. This will be crucial for minimising uncertainty for both commissioners and patients, and for reducing the possibility of legal challenge from patients who want to access treatments that are not routinely available on the NHS.

Looking at the impact on providers, the NHS could see an increase in requests for access to treatment in some clinical areas, especially for those trusts that provide highly specialised care and have an international reputation. In such cases, where providers are looking to diversify their income, it is vital sufficient capacity is planned so additional patients can be treated to the benefit, and not the detriment, of NHS patients.

Assessing the benefits

The proposed removal of the private patient income cap will allow trusts to move to greater diversification of their income, but it should be emphasised that European patients must not automatically be classed as private patients – this would be discriminatory and contrary to EU law. Instead, providers will have to offer these patients the option to be classed as either paying NHS or private patients, with only the latter subject to private fees.

One issue for providers seeking more overseas patients is that NHS tariffs are often higher than the prices in other EU countries. Patients will only be reimbursed up to the cost of healthcare in their own country and would have to cover the difference personally wherever NHS care is more expensive.

There are real opportunities for those trusts with specialist expertise – especially in the diagnosis and treatment of rare diseases – that will emerge from the establishment of European reference networks. The directive states that these networks will concentrate knowledge in medical areas where expertise is rare, which could have a positive impact on participating NHS trusts in terms of international reputation, collaboration and improved patient care.

The directive is due to be fully implemented in the UK by October 2013 – the same time that NHS reforms are underway and when key issues about the practical implementation of the directive will be decided. This includes how the authorisation process will work in practice and how the cost of cross-border healthcare will be calculated, in particular for those procedures not subject to NHS tariffs.

Until the new directive is implemented into national law, the existing rules on cross-border healthcare, established in a number of European court cases, remain in force. It is important that NHS trusts are aware of these.