EU staff members and their families are covered by a sickness insurance scheme, known as the Joint Sickness Insurance Scheme (‘JSIS’). In October 2015, following a review conducted under the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’), the UN Committee recommended that the European Union should revise the JSIS so as to comprehensively cover disability-related health needs in a manner compliant with the Convention.
This inquiry focused primarily on the criteria used by the JSIS for the recognition of “serious illnesses” in relation to disabilities. This issue has important implications for persons with disabilities since medical costs are fully reimbursed only if the illness being treated is classified as “serious”.
Currently the JSIS has three levels of reimbursement of costs (80%, 85% or 100%). The 100% reimbursement level applies to cases of tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognized by the appointing authority as of “comparable seriousness”.
The European Commission has adopted General Implementing Provisions (‘GIPs’), which govern the reimbursement of medical costs.[Field] According to these Provisions, serious illnesses typically involve, to varying degrees, the following four elements:
- a shortened life expectancy;
- an illness which is likely to be drawn-out;
- the need for aggressive diagnostic and/or therapeutic procedures;
- the presence or risk of a serious handicap.
Since 2014 the Ombudsman has received three complaints from staff members with disabilities, or whose children have disabilities, about the Commission’s refusal to recognize these disabilities as being “serious illnesses” under the JSIS. As the cases raised a systemic issue, and given her role as a member of the Framework, the Ombudsman decided to open a strategic inquiry on her own initiative.
The strategic inquiry
The Ombudsman opened this inquiry in May 2016 with a letter to the Commission asking how it intends to follow up on the UN Committee’s concluding observation on the JSIS and whether it intends to introduce separate criteria and/or special provisions for the reimbursement of medical costs for persons with disabilities.
Following the Commission’s reply, the Ombudsman’s inquiry team met with Commission representatives to discuss the case. The meeting report is available on the Ombudsman’s website.
Arising from these contacts with the Commission, the Ombudsman identified a range of issues on which she expected to make suggestions to the Commission. In November 2017, she launched a targeted consultation asking for views on the issues identified. The consultation was addressed to the European Parliament’s Disability Support Group, the European Commission’s Disability Support Group, the Association of Staff with a Disability in the European Commission, as well as to the European Disability Forum.
The Ombudsman’s assessment
In its comments, the UN Committee focused on the treatment of persons with disabilities under the JSIS. The purpose of the JSIS is to provide insurance against “sickness”. While persons with disabilities are likely to have costs arising from sickness, their needs arising from their disabilities are generally far wider than those arising from sickness only. Persons with disabilities may need special appliances, adaptive technology, a range of therapies in addition to medication and drugs. The JSIS is not designed to cater for these wider, disability-related needs; though, in practice, it does cover some of these needs, for example, some therapies as well as the costs of institutional care and of carers in the home – covered under the GIPs’ heading “Services associated with dependence”.
The focus of this Ombudsman inquiry is on how the JSIS can be operated, and if necessary revised, in order to ensure that persons with disabilities are treated correctly and in a non-discriminatory manner. In any future revision of the Staff Regulations it would be good to consider the inclusion of provisions dealing with the wider needs of persons with disabilities.
The Staff Regulations already deal with the employment situation of persons with disabilities as well as providing, in certain circumstances, for increased financial allowances for a dependent child with a disability or for EU staff or family members with a disability.
The Ombudsman finds that the failure of the European Commission to take any effective action, in response to the UN Committee’s recommendation of 2 October 2015 to revise the JSIS, amounts to maladministration. The UN Committee’s recommendation in this regard was designed to ensure that the JSIS will deal with the disability-related health needs of persons with disabilities in a manner which complies with the UNCRPD. The Ombudsman therefore makes a corresponding recommendation below, in accordance with Article 3(6) of the Statute of the European Ombudsman.
On the basis of her inquiry, the Ombudsman makes the following recommendation to the European Commission:
The Ombudsman recommends that the European Commission should immediately set about the task of revising the General Implementing Provisions (which govern the operation of the JSIS) with a view to ensuring that persons with disabilities will, in future, be dealt with under the JSIS in a manner which complies with the UNCRPD. For the purposes of its revision of the General Implementing Provisions, the Commission should set out a clear timeline for consulting relevant representatives of staff members with disabilities as well as representatives of staff members with dependants with disabilities. The revision process should focus on the criteria for the full reimbursement of medical costs but other issues may also need to be considered.
Suggestions for improvement
- The Commission should publish a non-exhaustive list of assistive devices which are reimbursable under the General Implementing Provisions.
- The Commission should carry out an assessment to identify – in a non-exhaustive way – non-medical needs relating to disabilities. It should initiate a procedure to ensure that the non-medical needs of EU staff members – and their families – with disabilities are addressed in a satisfactory way, through the allocation of sufficient resources and within an appropriate framework, under the EU institutions’ social schemes.
- The Commission should review its current rules on “reasonable accommodation” for staff with disabilities in the light of the provisions of the UNCRPD.
- The Commission should ensure, where it is not already happening, that special training on how to deal with disability is part of the induction programme for its staff working on related issues, as well as for staff at management level.
- The Commission should establish regular contacts with the associations of EU staff members with disabilities, or who have family members with disabilities, in order to receive feedback on the day-to-day application of the JSIS and of the social schemes for persons with disabilities. The Commission should also consult these associations in a meaningful, timely and structured way in the development and implementation of legislation and policies concerning them.
The Commission will be informed of this recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 16 October 2018.