Federal Administrative Court, Decision C-2827/2019 of 18 March 2021
2 April 2021 – In this decision, the Federal Administrative Court ruled on an appeal by a private hospital regarding the cantonal hospital list. Although the hospital had proven its ability to provide the services in question, the court ruled that the canton of Bern had in principle lawfully decided not to award the hospital a service mandate or not to include the hospital in the cantonal hospital list. Thus, it is not contrary to federal law that the lower court did not award the appellant a service mandate for the specific service groups due to its failure to meet the criteria for relevance to the provision of care. In this context, it is also not decisive whether the appellant fulfils the service-specific requirements in terms of infrastructure and required specialist staff and would be able to reach the threshold for relevance to provision in the future. There is no legal entitlement for the individual hospitals to be included in the hospital list for the provision of services at the expense of the OKP.
However, because the lower court did not sufficiently clarify the relevant facts with regard to the relevance of the appellant's services, the Federal Supreme Court partially upheld the appeal and referred it back to the lower court for further clarification and a reassessment.
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