Strasbourg, 14 December 2006

Dear Mr X,

On 29 March 2005, you made a complaint to the European Ombudsman concerning the decision of 7 April 2003 of the Appointing Authority on your complaint submitted under Article 90(2) of the Staff Regulations.

On 27 May 2005, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 2 August 2005. I forwarded it to you with an invitation to make observations, which you sent on 23 October 2005.

I am writing now to let you know the results of the inquiries that have been made.

I apologise for the length of time it has take to complete my inquiry.

THE COMPLAINT

In his complaint to the Ombudsman, the complainant made the following submissions. The Joint Sickness Insurance Scheme (JSIS) of the European Communities had, between 27 April 2000 and 22 August 2002, reimbursed him for his spouse's medical expenses, in accordance with the Rules on sickness insurance for officials of the European Communities. Based on the analysis provided by the Appointing Authority, the Settlement Office's refusal to reimburse costs concerned, inter alia, consultation visits and products bought at a Centre for natural health ("the Centre").

On 28 August 2002, the complainant sent an e-mail to the Helpdesk of the Settlement Office requesting clarifications on the reasons why it refused his claim for reimbursement of the doctor's fees, which the complainant had submitted on 9 August 2002 (statement no 94). In its reply of 2 September 2002, the Helpdesk explained that the expenses which were subject to statement no 94 were not reimbursed following the opinion of the medical officer that these treatments were non-medical(1). The Helpdesk provided to the complainant the contact details of the medical officer. On 20 September 2002, the complainant contacted the medical officer who replied on 23 September 2002 that Mr Y who is working in the Centre "(...) is not a medical doctor. It is why the outpatient visits are not reimbursable." The complainant maintained in an e-mail of 2 October 2002 that Mr Y and Dr Z have a joint medical practice in the Centre and that Mr Y worked under the supervision of Dr Z who is a medical doctor. The complainant underlined in the same e-mail that the bills submitted bore the name of Dr Z. In his reply of 3 October 2002 the medical officer explained that "[t]he consultations of nonphysician therapeuts (even under supervision of a doctor) are never reimbursed." The complainant maintained that, insofar as the JSIS had acknowledged in the past the claims for bills of Dr Z, the Settlement Office should proceed with the reimbursement. On 24 October 2002, the medical officer replied confirming, after discussions with the Head of the Brussels Settlement Office, that the bills of the Centre were not reimbursable.

On 19 November 2002, the complainant made a complaint titled "Refusal to reimburse doctor's fees" to the Appointing Authority, under Article 90(2) of the Staff Regulations. In his Article 90(2) complaint, the complainant put forward, in essence, the following arguments:

(i) The submitted bills were official as well as stamped and signed by Dr Z. According to the complainant, the refusal to reimburse the submitted bills is a violation of Article 9 of the Rules on Sickness Insurance for Officials of the European Communities (Rules) on the freedom to choose a practitioner and hospital or clinic;

(ii) There are no grounds for the refusal to reimburse the bills of Dr Z, because he works in the Centre. According to the complainant, if this were the case, all bills from all doctors working in medical centres should be excluded from reimbursement, which is not the case. Since bills from other centres are reimbursed, the present refusal by the Settlement Office is a violation of the above-mentioned Article 9 of the Rules;

(iii) The argument that Mr Y, who is not a medical doctor, also works in the Centre, cannot be the reason for the refusal to reimburse the doctor's fees charged by Dr Z;

(iv) The argument that treatments using "paramedicine" are never reimbursed is false, as the JSIS reimburses paramedical treatment in many cases: for example, physiotherapy and radiotherapy carried out by non-medical persons;

(v) The argument that bills originating from the Centre are never reimbursed is false, since these bills have already been reimbursed in the past;

(vi) According to the complainant, there was lack of independence of the medical officer and a lack of independence in the relation between the medical officer as a doctor who advises the Settlement Office and the executive role of the Settlement Office. First, the Settlement Office refuses the reimbursement because of the medical officer's opinion; later on, the medical officer refers to the Head of the Settlement Office in Brussels who decided in an unsubstantiated manner that bills of the Centre are not reimbursed.

The complainant concluded his Article 90(2) complaint by stating that the refusal to reimburse Dr Z' fees is a violation of Article 9 of the Rules. According to the complainant, the other arguments raised by the Settlement Office were not to the point. Moreover, these arguments were not based on an independent position of the medical officer, who acts as an advisor for the Settlement Office. The complainant underlined that his complaint concerning statement no 94 also applied to statements nos 95, 96, 97, 98 and 99.

On 7 April 2003, the Appointing Authority rejected the Article 90(2) complaint. In the first part of its decision ("Les Faits"), it noted the following. During July and December 2001 the complainant had requested from the Settlement Office the reimbursement of expenses for consultations and products billed by the Centre. The Centre is an establishment which exclusively uses natural products for the treatment of patients. It is managed by Mr Y, naturopath, and Dr Z, doctor. The Settlement Office refused these requests for reimbursement, in its statements nos 94 - 99 dated 22, 26 August and 2 September 2002. Following the lodging of the complainant's Article 90(2) complaint, the Appointing Authority referred the matter to the Inter-institutional Management Committee of the Sickness Insurance which gave a negative opinion on the complaint in February 2003.

In the second part of its decision ("En Droit"), the Appointing Authority, first, observed that the Centre is an establishment which bases its activity exclusively on natural products and not on medical ones, in the traditional sense of the term. The Centre's personnel is not only medical and it is directed by Mr Y, who is a naturopath and not a doctor and by Mr Z, a doctor. The Appointing Authority further referred to Title I of Annex I of the Rules on sickness insurance for officials of the European Communities, which, as the Appointing Authority noted, provides that consultations are reimbursed when they are carried out by doctors. Therefore any prescriptions emanating from Mr Y are not reimbursable. More generally, the Appointing Authority remarked the absence of elements which would allow the Settlement Office to identify with certainty the person consulted, taking into account that, although the invoices presented by the complainant originated from the Centre and the headed paper mentioned the names of both managers, these bills indicated solely a price for consultation and not the person consulted, (for example, through a personal stamp or signature).

The Appointing Authority concluded that, in these conditions, the Settlement Office had justifiably refused the requests for reimbursement.

In his complaint to the Ombudsman, the complainant alleged that the decision of the Appointing Authority of 7 April 2003 regarding his complaint, confirming the refusal of the Joint Sickness Insurance Scheme to reimburse doctor's fees ("honoraria") for medical treatments provided at the Centre, was unjustified. The complainant claimed that this decision should be reversed. He considered that, as his claims for reimbursement of doctor's fees at the Centre were reimbursed from 27 April 2000 until 22 May 2002, this was an unjustified change in the JSIS' reimbursement practice concerning bills from this Center. The complainant also stated that it had submitted evidence to the Appointing Authority that reimbursement regarding such bills was made by the national sickness insurance scheme of the Member State where the Centre is established.

THE INQUIRY

The Commission's opinion

In its opinion on the complaint, the Commission made reference to the reasoning of the challenged decision of the Appointing Authority. The Commission stressed that both Opinion of the Inter-institutional Management Committee of the Sickness Insurance and the decision of the Appointing Authority, taken in response to the complaint submitted by the complainant, refused to reimburse the bills in question because of the absence of information which would make it possible to identify beyond doubt who the person consulted was. In fact, the complainant has never disputed the fact that the care was given by Mr Y, who is not a medical doctor. The relevant expenses were therefore not reimbursable, irrespective of the question of whether the care was provided under the supervision of Dr Z.

As regards the complainant's argument that the Appointing Authority reimbursed "honoraria" between 27 April 2000 and 23 May 2002, the Commission noted that the complainant did not refer to any specific reimbursement made prior to his claim. It added that it is not clear from the annexes to the complaint which "honoraria" are involved in this instance. Moreover, contrary to the claims of the complainant, there was no "change" in the provisions applicable to the reimbursements, as argued by the complainant. Furthermore, the Commission stressed that, even if the Settlement Office had previously reimbursed the costs for "identical" consultations requested by the complainant, an error does not constitute a precedent. Once the officer responsible believes that he has found a possible irregularity, he must consult the medical officer. In cases of this kind, the Settlement Office does not recover what has already been reimbursed, except in cases of fraud, for large sums, or in cases in which it should have been very clear to the insured that invoices would not be covered, which was not the case here.

In light of the above, the Commission concluded that the present complaint was not justified.

The complainant's observations

The complainant made, in essence, the following observations.

The complainant's spouse sought treatment by the Centre, which is directed by Dr Z, a medical doctor. According to the complainant, doctor's fees (honoraria) by this Centre are reimbursed by the national insurance scheme of the Member State where the Centre is.

After the treatments started, the complainant sent the bills for doctor's fees on normal GP rates to the JSIS, which were reimbursed up to August 2002. Since the complainant's spouse's recovery was progressing the treatments at the Centre were continued and the spouse's condition improved. The interruption of the reimbursements was contrary to the principle of respect of legitimate expectations.

THE DECISION

1 Alleged unjustified decision of the Appointing Authority of 7 April 2003 on Article 90(2) complaint confirming the refusal of the Joint Sickness Insurance Scheme to reimburse expenses for treatments at the Centre

1.1 The complainant made, under Article 90(2) of the Staff Regulations, a complaint titled "Refusal to reimburse doctor's fees" by the Joint Sickness Insurance Scheme (JSIS). The complaint concerned the Settlement Office's refusal to reimburse costs for consultation visits at the Centre. On 7 April 2003, the Appointing Authority rejected the complainant's Article 90(2) complaint, in essence on the basis of the following: (i) under Title I of Annex I to the Rules on sickness insurance for officials of the European Communities, consultations are reimbursed when they are carried out by doctors; (ii) the personnel providing care at the Centre at issue is not exclusively medical and it is directed by Mr Y, who is a naturopath (and not a doctor) and by Mr Z, a doctor; (iii) with regard to the complainant's requests for reimbursement, there were no elements that would allow the Settlement Office to identify with certainty the person consulted, taking into account that, although the invoices presented by the complainant originated from the Centre and the headed paper mentioned the names of both managers, these bills indicated solely a price for consultation and not the person consulted, (for example, through a personal stamp or signature). In his complaint to the Ombudsman, the complainant alleged that the above decision of the Appointing Authority was unjustified. In its opinion, the Commission rejected the allegation.

1.2 The Ombudsman, first, notes that Article 1 of the Rules on sickness insurance for officials of the European Communities ("the Rules") provides that "A Sickness Insurance Scheme common to the institutions of the European Communities is hereby set up. Within the limits and under the conditions set forth in these Rules and the Annexes thereto the Scheme will guarantee to persons covered by it the reimbursement of expenses incurred as a result of illness, accident ..." (emphasis added). Annex I to the Rules provides, inter alia: "Medical expenses shall be reimbursed subject to the limits and conditions hereinafter specified. "I. ... Fees for surgery, visits and home calls shall be reimbursed at the rate of 85%, subject to a maximum limit of: 1. General practitioners (a) Visit to the doctor's consulting room ... 2. Specialists (a) Visit to the doctor's consulting room ..."(2) (emphasis added). Point I of Annex I to the Rules does not provide for the reimbursement of medical expenses for visits to the consulting room of a practitioner who is not a "doctor". Moreover, it does not contain provisions concerning consultations by a practitioner who is not a "doctor", but acts under the "supervision" of a "doctor".

1.3 In the case at hand, the Appointing Authority rejected the complainant's Article 90(2) complaint, noting in particular that the consultation invoices submitted by the complainant did not contain information which would make it possible to identify beyond doubt who the person consulted was. Relatedly, the complainant argued in his Article 90(2) complaint that the invoices that he had submitted were stamped and signed by Dr Z. The complainant attached to his complaint to the Ombudsman copies of these invoices. The Ombudsman observes that the following data appears on these documents: (i) the name, address and phone number of the establishment; (ii) right after these elements, the titles of both Mr Y and Dr Z; (iii) the date and cost of the relevant consultation and products; (iv) the method and date of payment; and (v) the stamp of the establishment accompanied by an illegible signature. In light of the above, the Ombudsman finds that the documents at issue do not provide any clear information on the identity (and capacity) of the person(s) consulted. Hence, these documents are not such as to enable the competent authority to ascertain whether the conditions laid down in point I of Annex I to the Rules are met. In such a case, where a claim for reimbursement is based on such documents, rejection of the claim under point 1 of Annex 1 to the Rules, may not be considered as unjustified(3).

1.4 Further, the complainant has invoked the principle of protection of legitimate expectations, arguing that the JSIS had reimbursed him for doctor's fees from 27 April 2000 until 23 May 2002. In reply, the Commission noted that the complainant did not refer to any specific reimbursement made prior to his claim. It added that, it is not clear from the annexes to the complaint which "honoraria" are involved in this instance. The Commission stressed that, even if the Settlement Office had previously reimbursed the costs for "identical" consultations requested by the complainant, an error does not constitute a precedent.

In this context, it must, first, be noted that the complainant has not submitted to the Ombudsman any specific information and documentation showing that the JSIS reimbursed him for consultation expenses proved by invoices of the kind here concerned. He further recalls that, a ccording to established case-law of the Community Courts, three conditions must be satisfied in order to claim entitlement to the protection of legitimate expectations. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the Community authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. And third, the assurances given must comply with the applicable rules(4). In the present case, it has not been established that these conditions are met.

1.5 In light of the above, the Ombudsman does not accept the complainant's allegation. Hence, he finds no corresponding instance of maladministration. Consequently he does not accept the complainant's claims.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Helpdesk replied in an e-mail of 2 September 2002 regarding statement no 94: "les faits faisant l'objet du décompte 94 n'ont pas été remboursés suite à l'avis du médecin conseil de considérer ces prestations comme non-médicales."

(2) According to Article 9 of the Rules "1. Persons covered by this Scheme shall be free to choose their practitioners and hospitals or clinics. 2. The institutions shall, wherever possible, endeavour to negotiate with the representatives of the medical profession and/or the competent authorities, associations and establishments agreements specifying the rates for both medical treatment and hospitalization applicable to persons covered by this Scheme, account being taken of local conditions and, where appropriate, the scales already in force." The complainant has invoked the first paragraph of this article, which, however, must be read in light of Article 1 of the Rules and its reference to the limits and conditions laid down in Annex I to the Rules.

(3) In this regard the Ombudsman notes that the possibility that reimbursement on the basis of such bills may be made under a national sickness insurance scheme is not relevant.

(4) See Case T-203/97 Forvass v Commission [1999] ECR-SC I-A-129 and II-705, paragraph 70; Case T-199/01 G v Commission [2002] ECR-SC I-A-217 and II-1085, paragraph 38; Case T-347/03 Branco v Commission, judgment of 30 June 2005, not yet reported, paragraph 102.