The final judgement?
On 30 May, the European Commission (EC) announced it had issued a Letter of Formal Notice to Spain, signalling the launch of an Infringement Procedure over allegations that Spanish hospitals providing public healthcare are refusing to recognise the European Health Insurance Card (EHIC) when it is presented to them. In August, Spanish authorities responded. Mandy Langfield offers the latest update on the EHICgate saga
On 30 May, the European Commission (EC) announced it had issued a Letter of Formal Notice to Spain, signalling the launch of an Infringement Procedure over allegations that Spanish hospitals providing public healthcare are refusing to recognise the European Health Insurance Card (EHIC) when it is presented to them. In August, Spanish authorities responded. Mandy Langfield offers the latest update on the EHICgate saga
Change in the air
The EC has received a reply from the Spanish authorities, but ITIJ cannot report on the letter of reply as it forms part of ongoing legal proceedings. So, although we cannot know for sure what the letter contained, it’s a fairly safe bet that it went something like: ‘All public hospitals in Spain accept the EHIC when it is presented to them’ – which is basically the same response that ITIJ has received when it asked the Spanish Ministry of Health about the letter of response. Although from the Spanish side there has never been any suggestion that EHICs weren’t being accepted, a meeting was held at the end of July in which the Spanish Ministry of Health, Social Services and Equality (MSSSI) met with the EC. During the meeting, an agreement was reached that establishes exactly the procedure that public hospitals must adhere to with regards to patients from the European Union who present an EHIC.
The procedure states that when a patient presents their EHIC, they will be treated in exactly the same way that a Spanish national would be. In the case that no card is presented, the patient will be billed and they will be able to reclaim the cost of their treatment either from their national health service or from their private insurance company. The instructions also state that hospitals providing public treatment should not ask European Union nationals with an EHIC or Provisional Replacement Certificate for any other insurance policies. The procedure also states that in the case that the patient is not in possession of an EHIC, but he or she claims to be entitled to the benefits of the card, the hospital must be pro-active and inform the patient about the possibility of obtaining a Replacement Certificate. Furthermore, in the case that the patient is billed, the hospital must only bill them for the same price as the care would cost under state provision – as per the agreed Diagnosis Related Group (DRG) system.
This agreed procedure has been communicated to the various autonomous health authorities around the country at an Inter-territorial Health Council meeting, said Rosa Serrano, press spokesperson for the MSSSI. The EC has said it is studying the guidance issues and ‘awaits information as to how this is being applied in practice’.
ITIJ spoke to José Farré of Spanish law firm Ramallo Pallast & Partner to ask him about what effect the agreed new procedures would have on the ground in Spanish hospitals. He said that the firm ‘remains sceptical in the short term’ as to the efficacy of the agreement, adding: “We are keenly aware of the interpretive creativity, or even straight disregard of instructions, by those entrusted with the implementation of the new instructions … which are not keen on seeing their current business model obliterated by the European Commission.” On the other hand, Farré was more positive about the long-term effects: “We know that time is in favour of the private insurers and the EC. Eventually, the proper interpretation of the EC law will prevail (as has happened in similar cases in the past), but we’d be surprised to see a sudden surrender at the practical level (hospitals and collection agencies), unless the Spanish government really flexes its muscles.”
Still to come
What hasn’t been addressed is the issue of Spanish judicial decisions that seem to now be in almost direct opposition to the guidance. In particular, we note that the previous statement from the Spanish Ministry of Health declared that the patient has the ‘right to choose’ if they are treated under their EHIC or under their private travel insurance policy. The EC has said that it does not agree with this policy and has disputed the issue of choice with the Spanish authorities.
And what of judicial decisions that have already been made? Firm judgements remain just that – firm. However, there are also many ongoing cases, and cases that are subject to appeal, on which these new instructions will have two ‘profound implications’, according to José Farré. The first implication is the new authoritative interpretation of the law: “The European Commission has made clear that ‘creative’ interpretations against the spirit of EC law will not be tolerated. Furthermore, the Spanish government has acquiesced to the interpretation of the EC. However, the judiciary is independent, and thus, we cannot rule out that some particular judge will dare to uphold ‘creative’ interpretations disregarding the interpretation of her/his own government,” said Farré, adding: “We have more faith, though, in Appeal Courts. Appeal Courts are made of three judges, and normally, their judges are more seasoned judges than first instance judges. If judges remained oblivious to the proper interpretation of EC law, a preliminary ruling before the European Court of Justice would be in order.”
The second point that could affect legal proceedings in Spain is the document resulting from the minutes of the meeting between the Spanish Ministry of Health and the regional health authorities, in which the new procedures were established. Farré said: “New documents according to Spanish procedural law may be submitted before the Court as evidence and are not subject to the legal limitations affecting the late submission of documents within legal proceedings.”
A final thought offered by Farré was interesting. Will the payments made in good faith by insurers with patients who were in possession of an EHIC be recoverable from the hospital/cost collection agency to whom payment was given? Farré explained: “We are talking about cases without litigation, where the insurers in good faith and under pressure (duress), accepted to give coverage, given the refusal of the hospital to accept the EHIC. We are of the opinion that there is a right to recoup such expenditures, provided evidence as to the existence of the EHIC can be submitted.” He warned, though, that insurers seeking to recover costs in this manner would be in for a protracted fight.
Real progress?
So, has the series of meetings between the EC and the Spanish health authorities, and the Spanish Ministry of Health and its regional counterparts, had any measurable effect as yet? Anecdotally, yes. Ian Jones of AXA Insurance told ITIJ that the company has seen the EHIC being accepted, but was cautious about whether or not AXA would later receive a bill for the care given. Farré of Ramallo Pallast & Partner said that his firm had seen no change of tactics from the collection agencies working on behalf of public hospitals to recover treatment costs, but added: “We know of some hospitals (at least two) that have stopped having relationships with one cost collection agency. We know that there was disagreement, not so much in the handling of the EHIC, but rather the way that patients were being invoiced (disregard of DRGs).”
So maybe, just maybe, the practice of billing private travel insurers inappropriately could be coming to an end. Whether or not the bills will keep coming is hard to tell, given the persistence in the past of some in disregarding EU rules in this area. ITIJ will, however, continue to report on EHICgate developments as and when they occur.