Federal Administrative Court, Decision C-4236/2020 of 22 December 2020
15. Januar 2021 – As of 1 July 2020, 1 October 2020 and 1 January 2021, the Federal Department of Home Affairs (FDHA) changed the maximum reimbursement amount for certain means and objects, including respiratory therapy devices. Three affected companies contested this amendment to the list of means and objects (MiGeL). As a precautionary measure, the Federal Administrative Court ordered the FDHA to immediately remove the publication that had taken place, which the Federal Supreme Court upheld (Decision 9C_746/2020 of 22 December 2020). The complainants considered the MiGeL to be similar to the list of specialities (SL) and deduced from this that the changes must be based on a (contestable) order and not as an ordinance. They therefore claimed that these amendments were null and void because the complainants' rights of participation had not been respected. The Federal Administrative Court began by stating that it can examine the MiGeL as a component of the Health Care Benefits Ordinance (KLV), although in a limited manner, since the FDHA is entitled to a wide scope of discretion. On the merits, however, the court disagreed with the complainants: In contrast to the SL, the MiGeL does not provide an exhaustive list of devices with prices and does not list individual brand names, but only general product groups. Nor does the MiGeL regulate anything conclusively, because an obligation to pay for the products also requires that these may be placed on the market (article 23 KLV) and are in a ready-to-use condition (article 24 para. 4 KLV). Consequently, the MiGeL, in contrast to the SL, is addressed to an undefined group of addressees. Contrary to the complainants' view, the MiGeL is thus not an order, but a regulation. Accordingly, its entries do not need to be based on contestable individual decisions and the complainants thus have neither party status nor a right to be heard.
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