Decision 9C_126/2023 of 4 March 2024

19. April 2024 – In its decision of 4 March 2024, the Federal Supreme Court partially upheld the appeal of a doctor (Dr. med. A.) against the decision of a Cantonal Arbitration Court for Health Insurance Disputes regarding repayment of compensation for uneconomic treatment in the year 2020. The "polypragmatic billing" respectively a violation of the principle of cost-effectiveness was disputed.

The Court ruled on the performance audit of doctors. The case centred on the question of whether the self-dispensing of medication by doctors and the fact that Dr. med. A. treats mainly multi-morbid patients, i.e. the average age of his patients is considerably higher than that of the comparison practices, leads to higher costs and whether this practice characteristic must be tak-en into account in the performance audit.

In principle, the services covered by compulsory health insurance must be effective, appropriate and economical (Art. 32 para. 1 Health Insurance Act (Bundesgesetz über die Krankenversicherung; KVG)). The service provider must limit its services to what is in the interest of the insured person and necessary for the purpose of treatment (Art. 56 para. 1 KVG). "Polypragmatic billing", as claimed by the opposing party (15 health insurance companies), occurs when a doctor charges considerably more than other doctors in the same area without being able to claim any special features. Cost-effectiveness can be verified using either the statistical method (comparison of average costs), the analytical method (case-by-case examination), or a combination of both methods.

The complainant was right in arguing that the screening as such does not in itself establish une conomic treatment and therefore cannot form the basis for a claim for recovery. The case-by-case examination indicated in this case, in which in particular the individual characteristics of the medical practice are considered, then brings to light whether the previously questioned economic efficiency of service provision has actually been violated within the meaning of Art. 59 KVG. Only this complete assessment can form the basis of an action for a reimbursement before the Cantonal Arbitration Court for Health Insurance Disputes (see Art. 59 para. 2 KVG). The case-by-case examination was not carried out in full. In view of the foregoing, the basis for the decision of the previous court was incomplete. The appellant therefore has rightly criticised the fact that the opposing party respectively the Cantonal Arbitration Court for Health Insurance Disputes did not fully implement the individual case analysis as the second part of the performance audit. This was a violation of Art. 56 KVG.

Furthermore, the court held that the Cantonal Arbitration Court for Health Insurance Dispute was wrong to set a fixed tolerance margin of 120 points for the regression index. The tolerance margin should also be determined on a case-by-case basis within a range of a minimum of 20 points and a maximum of 30 points.

The court's decision to refer the case back to the Cantonal Arbitration Court for Health Insurance Dispute of Bern for reconsideration includes consideration of the unique practice of "self-dispensing" and the fact that Dr. med. A primarily treats multi-morbid patients. On the same day, the Federal Supreme Court ruled on three further cases concerning the same matter involving different parties. As far as the legal reasoning is concerned, the decisions are largely identical (Decision 9C_127/2023 of 4 March 2024, see here; Decision 9C_128/2023 of 4 March 2024, see here; Decision 9C_129/2023 of 4 March 2024, see here).