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Application of EU Single Market rules to providers of healthcare in Ireland anticipating move to Universal Health Insurance - legal and practical arguments
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How does European law and the administration of the Single Market influence the design of a Money Follows the Patient system for Ireland? Jarleth Burke and Oliver O’Connor Introduction1
1. The Irish Government has made a policy commitment in its Programme for Government to take steps towards the creation of a system of Universal Health Insurance (‘UHI’).2 In terms of funding and providers, this represents a move away from a taxation-‐funded, block granted, public providers sitting alongside a voluntary health insurance system that pays both private patient units in public hospitals and private hospital providers (albeit on different bases). In its place, eventually, it is hoped that there will be a plurality of insurers paying a variety of providers most likely on a price-‐per-‐procedure basis, at least in the acute hospital sector. It is assumed that the plurality of providers will include presently public sector and private providers without distinction, that is, all will be free to provide services to each any every insurer.
2. As one of the steps towards such a system, the Government envisages the introduction of a ‘Money Follows the Patient’ (‘MFtP’) payment system for the application of public funding for the acute hospital sector. Essentially, this would replace the prospective block grant to publicly-‐funded hospitals with a prospective price per procedure or per episode of care. The precise nature of this payment has yet to be determined: it may be constructed from existing Casemix Diagnostic Related Group rates (which are an average of cost across hospitals for certain procedures) or it may be closer to the procedure rates paid by insurance companies presently to private hospital providers. The present per diem rate (or rates) paid by insurers for private bed activity in public hospitals is not likely to be the basis for the payment. The Programme for Government has identified a Hospital Care Purchase Agency (to be combined with the National Treatment Purchase Fund) as directing payment to providers in the run-‐up to UHI, so it might be expected to administer some form of MFtP.
3. It remains to be confirmed by the Minister whether the Money Follows
the Patient system, implemented in advance of universal health insurance, will allow current private providers to bid for or provide services at the specified tariff or price. It is an open question whether the MFtP system will be implemented for the current group of publicly-‐funded hospitals only, as an alternative to the present block grant method of allocating public funds to them. If this is the case, and anticipating a system of
1 This discussion paper does not purport to give legal advice and should not be relied upon as such. 2 See Government for National Recovery 2011-‐2016, p.34-‐38
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universal health insurance implemented through a diversity of insurance companies, there will still need to be a day when the MFtP funding does indeed become open to all providers – at the limit, that day is when insurers take over the purchase or commissioning of care. This is a key consideration in the policy for the design of MFtP, and an important fact in looking at the European law context.
4. Depending on how UHI is implemented, competing health insurers could become the purchasers of all of the care currently delivered through a combination of public and private hospitals. An immediate issue will arise as to the basis on which purchasing decisions will be made, and in particular whether insurers will be free to purchase hospital treatment from providers of their choice. While insurers might be expected to want to have a good geographic spread for hospitals, regulation apart, there might be cases where the insurer decides not to cover a particular provider, including potentially, a public hospital.3 Similarly, it is not difficult to imagine that an insurer might prefer to provide cover for particular treatments at a number of restricted locations so as to realise lower prices or a particular combination of quality and cost. MFtP therefore looks like a logical precursor to UHI in that it will begin the movement away from block granted funding of public hospitals in particular.
5. It is worth also noting that a review of the Fair Deal Nursing Home
Support Scheme is being prepared in the Department of Health.4 In some ways, this Scheme already implements a Money Follows the Patient payment system, where a patient can choose between a public and private nursing home for service. While the State contracts for a price per patient from private nursing homes, it still pays public nursing homes on a block grant basis; however, the latter are required to account for costs on a per patient basis, and their notional rates per patient per week of stay are published alongside the prices paid to private nursing homes. The review is likely to address the question of a method for setting a tariff for a set level of care for each patient, to apply to all providers equally, with perhaps some regional variations. The same challenge of finding a tariff per episode or level of care that is fair to all providers will arise for acute hospital services if private providers are included in the system.
Questions and issues that arise for Money Follows the Patient
6. There are many technical and legal issues to be addressed so that a full MFtP system can be implemented, and even more so for the full transition to universal health insurance. It is worth thinking about one aspect: the role that European law may affect the design of policy if only to begin to
3 There is of course the possibility that regulations would be adopted under the promised Universal Health Insurance Act that requiring insurers to cover specified hospitals, perhaps even all HIQA approved hospitals. That would go beyond the requirements of currently applicable Minimum Benefit Regulations and may necessitate complex dispute resolution mechanisms. 4 See Department of Health press release of 14 June 2012, accessible at http://www.dohc.ie
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seriously consider its application. Questions that arise include the following: Policy scope
i. in the Money Follows the Patient phase in advance of an insurance-‐based system, is the State free, according to European law and practice, to confine payments to those providers (hospitals) that are currently publicly-‐funded by block grant?
ii. in that case, what, if anything, does European Union (‘EU’) law say about publicly-‐funded hospitals’ private patient services to insurers? Is there a State Aid issue involved in public hospitals competing for a private source of funding while receiving public funding? Are such hospitals to be considered as ‘undertakings’ for EU competition law purposes? What are the implications of those hospitals being undertakings?
Price setting iii. If MFtP does not include private providers, would the
continuation of the present system whereby the Minister sets private bed-‐night charges for public hospitals be acceptable?
iv. If the State decides to allow private hospitals to provide services to the State under the MFtP, is it required under EU law that that the same price/tariff be paid to all providers for the same service? How precisely does such a service or episode of care have to be defined?
v. Specifically, would the EU rules allow for a price/tariff to be set that did not reflect the cost of pensions or capital investment, with the effect that private providers were not remunerated for these costs while the public sector providers were provided for funding for these costs from other State sources?
Eligible Providers vi. Does EU law allow the State to confine MFtP eligible providers
to a limited set of providers, e.g. not-‐for-‐profit groups? vii. Must any new hospital be allowed to provide services under
the MFtP system or can the State limit the number of providers, including private providers, for capacity control or other reasons?
viii. In a situation where both public and private hospitals are providing services under MFtP, do Irish and European competition law provisions apply to mergers or co-‐operative agreements between them and, for example, in relation to their primary care referral sources (GPs,primary care centres)?
These are just some of the main questions that arise in the design of the MFtP system. The question for this paper is the extent to which EU law, EU Court decisions and Commission decisions/guidance affects the design
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of pricing, which providers are part of the system and the rules governing each.
Relevant European law and guidance
7. Without providing a full description of the role of European law in health care policy and provision in Member States – which were discussed at the Ceohealthmatters Forum on Competition in Health in January 2012 – there are several points worth mentioning in general before addressing the questions above.
8. First, the European Union does not get involved in the fundamental design of health services in each Member State, for example, in relation to policy choices as between a taxation-‐funded system, a private health insurance system or a social health insurance system. Under Article 152 of the Treaty on the Functioning of the European Union (‘TFEU’), the Member States retain primary competence in the field of health, with the Union only capable of taking forward initiatives of a complementary nature. While the principles of universality of services and equity are shared in various guises by the Member States, it is fundamentally up to each Member State to decide how to give effect to them. So, for example, EU policy would not require Ireland to offer free primary care to the whole population or to remove all payments for Emergency Department services or drugs.
9. Alongside this, it is accepted in European law that Member States may
organise health services, including the funding of public sector providers, without being constrained by State Aid or Competition law provisions. That applies when the delivery mechanism (whether on the funding or delivery side) is regarded as ‘non-‐economic’ in nature, and where the underlying organisation of the activity is regarded as social in nature, or entails what is referred to as the ‘exercise of official authority’. The key criterion for qualification under the non-‐economic exception is that the system/providers not be regarded as ‘undertakings’. In very general terms an ‘undertaking’ is an entity engaged in economic activity usually for gain. Instances of the exercise of official authority are bound up with the traditional functions of the State and limited to those functions necessarily undertaken by the Member States.5
10. Leaving aside those exclusions, there are a number of interacting areas of
European law under which policy issues relevant to Money Follows the Patient can be examined:
a. Free Movement rules: freedom to provide services within the
whole European Union area and the requirement for States not to create barriers to the freedom of any commercial entity to
5 The classic example would be licensing, but other more operational activities, such for example as surveillance against pollution have been accepted as falling within this category,
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establish and offer products or services are core principles of EU law. Medical treatment has long been regarded as a service under EU law when availed of on a cross-‐border basis. This attracts the operation of the free movement rules, which in turn have even been interpreted as allowing citizens of one Member State to avail of medical services in another to claim a degree of reimbursement from the home Member State.6
b. State Aids rules: These prohibit selective subsidies or other interventions of a fiscal or para-‐fiscal nature to certain undertakings in a way that distorts competition. The design of State-‐originated payments for health services and their compliance with State aid rules is important, since any form of excess compensation being at risk of being unlawful State aid. Member State can be obliged to recover from beneficiaries, with receipt in good faith not being a defence. In 2003, the Court of Justice adopted a very significant ruling in the Altmark case concerning the conditions that need to be satisfied in order that payments for public services will not be treated as State aid. 7
c. Competition law provisions: these regulate the actions of ‘undertakings’, broadly, commercial enterprises or the commercial actions of an otherwise non-‐commercial entity, so as to prevent actions that diminish consumer welfare, such as price collusion, restrictions on trade, and monopolistic practices. The principal prohibitions are Article 101 TFEU, on collusive arrangements, and Article 102 on the abuse of a dominant position. In addition to the rules that are application to undertakings in their own right, there are a number of competition rules (principally Article 106 TFEU) that apply to the State in terms of its relationship with what are termed ‘public undertakings’ (in other words State controlled entities), and holders of ‘special or exclusive rights’, which are entities that enjoy a monopoly or otherwise protected position within a given sector.
d. In addition, there is a special defence built in to EU law in respect of what are known as Services of General Economic Interest (‘SGEIs’). Broadly speaking this exception applies to services that on account of their public importance, and criteria such as universality, amount to SGEIs. Other TFEU provisions (including free movement, State aid and competition rules) may be limited to the extent that this is necessary in order to support the provision of a particular SGEI that has been entrusted to one or more undertakings.
6 Case C-‐372/04 R (Watts) v Bedford Primary Trust et al [2006] ECR I 04325 7 Case 280/00 Altmark Trans GmbH [2003] ECR I 07747
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11. All these factors have to be considered in setting general and specific policies involved in the Money Follows the Patient system, leading to universal health insurance. European law and practice is evolving in relation to these areas as they interact with health services. New EU Court cases develop in novel ways and give certain latitude to Member States and the Commission, but it is not easy to describe a few simple rules of thumb as to how the different provisions are to be interpreted in every circumstance. The key challenge is to determine the classification of various entities and practices within a given sector, with health presenting a special challenge given that aspects of its organisation are purely social in some contexts, entirely economic in others, and very frequently, mixed. With that in mind, the following tentative answers are offered in response to the questions posed above.
Policy scope
i. in the Money Follows the Patient phase in advance of an insurance-‐based system, is the State free, according to European law and practice, to confine payments to those providers (hospitals) that are currently publicly-‐funded by block grant?
To answer this question, it is necessary to consider the legality of the current system and to then try and assess how MFtP might impact on that. In legal terms, the current public system in Ireland is, in so far as it concerns with the delivery of limited or full eligibility under the Health Acts is likely to be regarded as outside the competition rules entirely, on the basis that it is financed through mandatory contributions and provides for cover on a non-‐discriminatory basis that seems to accord with the EU principle of solidarity.8 A corollary of that is that the State in reimbursing the cost of care (even through the HSE) is probably not engaged in economic activity (i.e. is not an undertaking). On one view, the transition from block grants to MFtP is not such a big change, in that it just replaces the basis on which the State reimburses public providers for treating public patients. MFtP in whatever form it is initially introduced is likely to be an administrative matter between the reconstituted HSE and individual public providers.9 Provided that the introduction of MFtP does not detract from the solidarity related features of the Irish public health
8 It is true that the Irish systems is not universal in the same way as the UK NHS (free at the point of use and covering primary and acute care), but it still is arguable that, even with liability for statutory hospital charges and no statutory entitlement to State-‐provided primary care for a non-‐medical card holders, it exhibits a sufficient degree of solidarity for a substantial portion of the population. See in particular, Case C-‐205/03 P FENIN [2006] ECR I 06295. 9 In that regard, see the comments of Minister Reilly before the Seanad on 14 February 2012 concerning a pilot of the MFtP system: “The Health Service Executive has also implemented a pilot project in regard to prospective funding for certain elective orthopaedic procedures. That has yielded a saving of nearly €6 million in its first year. Where hip and knee orthopaedic procedures were being paid for under the money follows the patient system, the hospitals were reimbursed immediately on submission of the bill as long as the patient was admitted on the day of surgery. That had a dramatic effect in both Navan hospital, Cappagh hospital and elsewhere.”
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system, then the State would appear to have broad legal latitude in framing its implementation. An argument can be made in opposition to that based on Article 106(1) because although public hospitals are not undertaking in this context (being the delivery mechanism for public eligibilities), they might be regarded as holders of ‘special or exclusive rights’ under Article 106(1) TFEU, in which case the competition rules apply to prevent the State unduly restricting competition. While there is some basis for arguing that public hospitals at least hold special rights, the State’s system of purchasing care from them (and in turn block funding) is likely to be regarded as an incident of the operation of a solidarity-‐based public health system. According to the FENIN case, it is not possible to separate the prior purchasing activity from its subsequent use.10 If it is lawful for private hospitals to be excluded from the current system of block funding (i.e. not allowing them to be eligible to provide services to meet public eligibilities and in turn be paid by the State) then it would not appear that the introduction of MFtP would affect the legality of that restriction under EU law, it being assumed that the deployment of MFtP will be an administrative and accounting matter within the HSE. As such, it would appear that Ireland may restrict participation within a MFtP system to public hospitals.
ii. in that case, what, if anything, does European law say about publicly funded hospitals’ private patient services to insurers? Are such hospitals to be considered as ‘undertakings’ for EU Competition law purposes? What are the implications of those hospitals being undertakings?
There are a number of questions here. There are many instances across the European Union where publicly-‐funded hospitals also provide private services. In the NHS in the UK, for example, there are Private Patient Units (‘PPUs’) within NHS hospitals, both Foundation Trusts and non-‐foundation NHS hospitals. The UK effectively takes the view that the activities of these PPUs are subject to EU and national competition law provisions, as implemented by the Competition and Co-‐operation Panel and the Office of Fair Trading and ultimately the Competition Commission.11 Separating out in which respect they are acting as undertakings and when they are not can be practically very difficult.
10 See footnote 8. 11 See OFT Press Release 71/12 of 16 August 2012 concerning assurances that a number of NHS trusts gave not to continue to share pricing information in respect of their private services delivered within Private Patient Units.
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The reason the EU has not been involved in the UK, so as to speak, is that there has not been any significant European Commission decisions or EU court judgments directing the UK authorities on competition-‐related matters. Furthermore, it is difficult to establish whether private hospitals have made a case that NHS Foundation Trust Hospitals PPUs, for example, receive unwarranted State Aid by virtue of the public funding of their NHS activities.12 However, it is accepted that sophisticated accounting systems are necessary to ensure traceability of funding so that PPUs do not in fact receive a cross-‐subsidy from NHS funds. The position concerning public hospitals in Ireland in so far as there is a system of designating private beds in public hospitals is not very different to that of NHS hospitals providing private services. In respect of the provision of that capacity, the hospitals are to be regarded as undertakings under EU (and national) competition law since they are competing in the ordinary course for the provision of hospital treatment mainly to the insurers. The fact that the pricing of beds in public hospitals is ultimately determined by the Minister for Health has no bearing on that. It does though on one hand limit the scope for certain types of abuse by the hospitals, but on the other as will be discussed immediately below, creates potential for potential forms of liability for the State when setting those prices. Given that prices are set by the Minister, a public hospital is not likely to price below that level but it might nevertheless be able to offer ancillary benefits as a method of competing with private providers. As such, there is some potential for anti-‐competitive behavior.
Price setting
i. If MFtP does not include private providers, would the continuation of the present system whereby the Minister sets private bed-‐night charges for public hospitals be acceptable?
The ability of the Minister to set the price of private beds in public hospitals has not been challenged. In this instance the output (namely private hospital accommodation) is sold on separate market in which public providers compete with private providers. Public hospitals are undoubtedly undertakings under EU law in this particular context. That said, the Minister’s power to set those prices is probably justifiable on at least two separate bases. First, the public functions are de facto State controlled and the Minister’s determination of price is in effect an incident of that control. This is not very different to Ministerial determination of the price charged by a State-‐owned company for a particular commodity. As a result,
12 There are no recorded decisions on this point.
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while an insurer might well prefer to be able to negotiate prices directly with individual hospitals, the Minister appears to be entitled to make a pricing decision. In this context, the position of the Minister is analogous to that of the controller of a ‘single economic entity’, and there is no obvious basis to allege any freestanding breach of the competition rules. Second, and drawing on the theory of the exercise of Official Authority, the State has a legitimate interest in controlling the price of private beds in public hospitals in order to indirectly control the cost of private health insurance. There will no doubt be a respectable argument to be made that there is an optimum price to be selected which maximises the contribution of private payers into the system while minimising their use of public beds.13 Perhaps a bigger issue connected with the system of Ministerial setting charges for private beds is whether those charges are in line with economic costs and in turn whether in practice private hospitals are recovering charges for beds that are used, there being longstanding concerns that public hospitals are allowing holders of private insurance to occupy beds on a private basis that have not been designated as such. 14 These concerns have significant implications for private hospitals seeking to compete and for prospective entrants to the hospital market, both of which may be confronted by a market price that is below cost. In this scenario, the argument would be that the State is in breach of Article 106(1) in conjunction with Article 102, in that in respect of public undertakings (the VHI being one), it has adopted measures (namely the legal and administrative system for bed designation) that restricts competition by completely distorting the market for private hospital accommodation.15 Insurers such as the VHI have little incentive to buy private hospital accommodation from exclusively private providers if at present it can be secured below cost from public hospitals. There is also the theoretical possibility of an insurer arguing that the rates set for private accommodation in public hospitals are excessive, although the current evidence if anything points in the opposite direction. An argument for State aid might be viable in this context, although an argument that the State has brought about excessive pricing (and therefore breached Article 106(1) in conjunction with Article 102) looks like a better fit for the facts. As against that, excessive pricing claims are notoriously difficulty to establish under EU law and in this instance, the Minister will be able
13 Ireland can point to the CFI judgement in Case T-‐289/03 BUPA Ireland v Commission where the Court accepted the argument that regulated health insurance was a “pillar” of overall health policy and provided important relief to the public system by directing patients elsewhere. While the Court may have overstated the diversion point, nevertheless, private medical insurance is an important source of funding for public hospitals for private beds. 14 See for example, Irish Times, Thursday, 8 December 2011, ‘Hospitals could earn €120 million from Better Management’ 15 In this paper we make a general assumption that an effect on trade under EU law is present. That though needs to be established on the facts.
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to point to quite detailed cost calculations that have been built up over time on which to base more recent decisions setting the price of private hospital accommodation.
ii. If the State does decide to allow private hospitals to provide
services to the State under the MFtP, is it required under EU law that that the same price/tariff be paid to all providers for the same service? How precisely does such a service or episode of care have to be defined?
As previously noted, the State is unlikely to be obliged to allow private providers to participate in a MFtP systems, but some degree of participation looks unavoidable if private hospitals are to get some prior experience of how UHI might operate in terms of insurers having freedom to decide which hospitals to cover and on what terms. It is true that MFtP can be deployed in an entirely internal way and with the use of benchmarking across public hospitals could result in more cost-‐oriented tariffs for hospital episodes. That however is unlikely to simulate in a meaningful way what may transpire under UHI, which in principle will effect a big shift in negotiation power to insurers. The moment the State decides to allow private participation in a MFtP system, this will necessitate very careful consideration of the justification for any form of price discrimination in terms of tariff setting. The current system of block funding obscures the underlying prices, which will become much more apparent under the MFtP system. As previously noted, a critical issue will be the legal classification of the underlying public system and its components following the introduction of MFtP and in turn its extension to private providers. On one view, this will not according to the FENIN ruling entail such a radical change, or for that matter attract the application of rules that would significantly restrict Ireland’s freedom of action. In FENIN, the fact that particular goods were bought for the Spanish public health system was ruled by the Court of Justice not to be severable from their use within that system. Earlier in the proceedings, the European Court of First Instance accepted that the Spanish system was based on solidarity having regard to its method of financing and the benefits offered. In other words, the argument is that the State entity that is engaged in the procurement of services under a MFtP system would not be regarded as an undertaking. This conclusion rests on a single legal point determined by the Court of Justice in FENIN, namely that the purchasing activity may not be dissociated from the subsequent use. While in FENIN the Court of Justice did not pronounce on whether the Spanish public health system satisfied all of the solidarity and
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related criteria, overall the analysis of the Court of First Instance to that effect looks compelling. By contrast if the same approach was take as had been by the UK’s Competition Appeal Tribunal in BetterCare II, then the situation would be completely different.16 In that case, the Tribunal treated the purchase of care by NHS entities in Northern Ireland as distinct economic activity. This meant that in that context those entities were undertakings. Taking that logic a step further for present purposes, if in Ireland the HSE was to introduce MFtP and make private providers eligible, then it would make the HSE a public undertaking under Article 106(1) when purchasing hospital care, and then the argument would be that differential pricing would, all things being equal, mean that Article 106(1) was breached in conjunction with Article 102. Article 102 prohibits most forms of price discrimination by dominant firms. If then, the State wished to justify differential pricing (i.e. different prices for public and private providers of the same service), it would need to show that the public providers were entrusted with an SGEI and that the burden was such as to justify different tariffs.17 Justifying a differential tariff on the basis of an SGEI might be difficult since the nature of the obligation imposed on public and private hospitals for a specified procedure is likely to be identical. That said, while similar delivery criteria might be applied to certain procedure, it is unlikely (at least in the short term) that private hospitals would assume all of the day to day characteristics of public hospitals, although the latter would probably need to be formalised into concrete obligations of a legal or regulatory nature so as to meet the ‘entrustment’ requirement of SGEIs under Article 106(2).
iii. Specifically, would the EU rules allow for a price/tariff to be set that did not reflect the cost of pensions or capital investment, with the effect that private providers were not remunerated for these costs while the public sector providers were provided for funding for these costs from other State sources?
The principal basis for attack of differential tariffs (leaving aside the issue of whether Irish public hospitals would be regarded as undertaking in this context) is whether or not this would amount to unlawful State aid. There is however a very significant qualification to the application of State aid rules to the funding of hospitals in the
16 Case 1006/2/1/01 BetterCare Group Ltd v Director General of Fair Trading [2002] CAT 17 Note that the Court of Justice ruling in FENIN came after the CAT ruling BetterCare II. Since FENIN indirectly over-‐rules BetterCare II, the approach taken in the latter case, although intellectually rigorous, is unlikely to be followed. The OFT takes the view that FENIN is conclusive on the severability point including as to the interpretation of UK competition law.
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form of Article 2(b) of Commission Decision 2005/842/EC, which provides a complete exemption from the State aid rules for: “public service compensation granted to hospitals and social housing undertakings carrying out activities qualified as services of general economic interest by the Member State concerned;’ 18 Unusually for an exemption, this provision is completely unlimited in monetary terms and moreover, may be relied upon by the Member States through the mere assertion that a hospital is engaged in the provision of an SGEI.19 On its face, the exemption would block off a challenge on State aid grounds to higher payments to public providers for identical levels of service provision for public providers. This decision was recently replaced by Decision 2012/21/EU, entering into force on 31 December 2012, which in Article 2(b) provides a complete exemption from the State aid rules for: compensation for the provision of services of general economic interest by hospitals providing medical care, including, where applicable, emergency services; the pursuit of ancillary activities directly related to the main activities, notably in the field of research, does not, however, prevent the application of this paragraph;20
There is a very significant case pending before the General Court in Luxembourg in relation to the deficit funding of certain public hospitals in the Brussels region. In summary, they had over a number of years been recipients of funding going beyond payments for service provision to ‘social patients’, of whom some 67% were catered for by private hospitals, who typically were reimbursed less for patients that their public counterparts.21 Although disputed to some degree it would appear that both public and private hospitals were under the same SGEI obligations. Applying Decision 2005/842/EC, the Commission held that top-‐up payments running from after the date of its entry into force of that instrument were entirely exempt from the State aid rules, but that earlier payments were not.22 Turning to those earlier top-‐up payments, they were found not to comply with the Altmark criteria, and as a result were State Aid. Nevertheless, the European Commission approved the compensation, subject to certain observations about the need for
18 This Decision was introduced to assist with legal certainty in the light of the Altmark judgment referred to above. 19 In other words, the usual ‘entrustment’ requirement for SGEIs under Article 106(2) is not applied. 20 Commission Decision of 20 December 2011 on the application of Article 106(2) TFEU to State aid in the form of public service compensation granted to certain undertaking entrusted with the operation of SGEIs (OJ L 7, 11.01.2012, p. 3-‐10). Attempts by private hospital operators to have the open-‐ended exemption for payments to hospitals ended were unsuccessful. 21 Those are patients who are unable to cover the cost of hospital treatment. 22 State Aid Notification, Belgium, NN54/2009
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greater transparency, on the basis that the burden of SGEI obligations on public providers justified the supplemental compensation. Part of the alleged difference in circumstances is understood to be greater pension and other costs for public employees.23
Eligible Providers
i. Does EU law allow the State to confine MFtP eligible providers to a limited set of providers, e.g. not-‐for-‐profit groups? Restricting participation in MFtP to public providers and not-‐for-‐profits would has the potential advantage from a supply-‐limitation perspective of introducing a new source of supply short of the full panoply of private providers. That said, the criteria for defining ‘not for profit’ would require careful definition since there are a myriad of ways in which profit can be effectively extracted from a business that is styled otherwise. For example, not even charitable status would guarantee that no economic profits were being extracted.
If the principle that the State is free to decide which entities and on what terms any provider (public or private) can participate in a MFtP systems, then it would appear to be open to a Member State to limit participation in MFtP to not-‐for-‐profit providers. Separate to that first principles approach, there is EU precedent to the effect that under certain conditions, Member States may limit the pursuit of certain kinds of activity to not-‐for-‐profit actors. In particular in Sodemare, the European Court of Justice upheld the legality of restricting reimbursement by the Italian social security system for home care for the elderly for not-‐for profit entities only.24 The restriction was challenged by a Luxembourg-‐based operator who had been authorised to operate a home in Italy. An interesting feature of this case is that although the Court of Justice could have decided the case solely on the basis of whether the freedom of establishment principle was violated, not only did it do that, it also grounded its conclusion in a Member State’s freedom to define its own social security system. So while the Court accepted that this was a restriction that applied without reference to nationality, it also set out that it was open to Italy to decide that not-‐for profit delivery of these services was most appropriate method of provision for
23 It will be noted that the underlying features of the Belgian system were regarded as an SGEI. While the system of private health insurance in Ireland has been approved as an SGEI, the public health system is arguably outside the competition rules in their entirety. 24 Case C-‐70/95 Sodermare [1997] ECR I 03395
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home care services. In this context, it mentioned that the Italian system was founded on the basis of the solidarity principle. Although this judgment only concerned the free movement and not the competition rules, it is hard to envisage that the case would have been decided any differently is they had been relied upon.
ii. Must any new hospital be allowed to provide services under the MFtP system or can the State limit the number of providers, including private providers, for capacity control reasons?
The State would appear to have a very broad discretion to limit the number of providers, at least under EU law in so far as it can point to some need connected with the operation of the public health system. To the extent that Ireland introduced MFtP in part to prepare public providers for UHI, then there might be valid reasons why the extension of MFtP to the entire private hospital sector should be phased, if only because of the potential strain on public hospitals finding that some of the funding that automatically that now goes to them is instead allocated to private providers. In the context of a static or declining health budget this could leave some public hospitals in major difficulty.25 The State though would need to take care not to engage in subjective decisions in the choice of providers admitted to the MFtP system since domestic law protection, including the principle of equality before the law might be invoked.
iii. In a situation where both public and private hospitals are providing services under MFtP, do Irish and European competition law provisions apply to mergers or co-‐operative agreements between them and, for example, in relation to their primary care referral sources (GPs, primary care centres)?
The fact that both public and private providers provide services under MFtP would not as such affect the applicability of these regimes, although as a general principle Irish and EU law requirements concerning mergers and co-‐operative agreements only apply to undertakings. Currently, public hospitals would be regarded as undertakings when they provide private beds, so for example, any arrangement between them and a private hospital (for example sharing capacity) could fall within section 4 of the Competition Act 2002 (and possibly Article 101 TFEU), although such
25 Interestingly, in Universal Health Insurance – the Labour Party’s Health Policy, there is explicit mention of the likelihood that certain hospitals (in particular local hospitals) may struggle to attract business under UHI. The suggested policy response is some sort of residual funding under the control of the Minister.
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arrangement might well enhance rather than restrict competition, or be otherwise capable of exemption under those rules. The position is broadly similar with respect to mergers. Conclusions A principal purpose of this discussion paper is to focus attention on the modalities of MFtP by asking how the operation of EU law might impact on its introduction. Currently, we do not know whether MFtP will be an internal matter within the HSE or will be developed to the point whether private providers begin to participate in it. A crucial feature of MFtP is that it is to be a precursor to UHI where payments to providers are made by insurers. Thus, the inclusion of private hospitals in MFtP would signal the beginning of greater reliance by the State on the procurement of hospital services from private sources. Decisions about pricing of services and about which providers are included will have to be made, even in a phased way, if MFtP is truly a transition to UHI. In principle also, the advent of UHI creates the possibility of insurers contracting with providers of their choice and in turn striking individual tariff bargains. From an EU law perspective, just as the operation of the current public health system gives Ireland very significant authority over its design, the introduction of MFtP seems to be largely a discretionary matter for the Irish authorities. That said, the need to simulate some of the effects of UHI may lead the State to admit parts of the non-‐public sector into MFtP. Separately, while objections might be taken to differential tariffs by provider, Ireland appears to be in a position to defend those arrangements on several bases, although the transparency inherent in MFtP will create its own set of pressures for change. Finally, whatever the formal requirements of EU or national law, there is always room for initiatives that seek to minimise competitive distortions and which give effect to the spirit if not the letter of EU requirements, even where they might not be technically applicable. The UK has already taken several initiatives in that direction concerning the NHS. There undoubtedly are crucial distributional issues at play in health policy and the challenge is to reconcile their realisation with the curtailment of monopolistic practices. Just as it is foolish to rely on competition as a panacea, equally mistaken is the assumption that just because the competition rules do not apply, there is no reason to give careful consideration to
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competition related matters. In this context, the promise to move to UHI will probably necessitate much more than current EU law requires. Paper presented to Ceohealthmatters Forum on Price and Tariff-‐setting 4th September 2012 www.ceohealthmatters.com/4Sept © Ceohealthmatters Ltd.