Federal Administrative Court, Decision C-1306/2019, C-2651/2019 of 21 September 2021

8 October 2021 – The Court combined the two appeals on the grounds that both proceedings were based on the same facts, the same legal questions arose, and both appeals concerned de facto the same decision of the lower instance. Materially, the court had to examine whether the deciding body of the intercantonal agreement on highly specialised medicine (IVHSM) (here the lower instance) wrongfully refrained from awarding a performance mandate in the area of pancreatic resection to the appellant. Art. 4 para. 4 IVHSM defines the relevant criteria for allocating a performance mandate. However, the court clarified that the lower instance has wide discretion in the allocation of such a mandate. The question arose whether the lower instance was correct in basing its decision on the minimum case numbers. The court held that by treating at least such a minimum number of cases, a hospital respectively the treating team gains routine and experience, and thus minimum numbers are demanded in order to ensure the quality of treatment. The number of cases treated and/or procedures performed is thereby a general indicator of existing expertise in a hospital and accordingly, the lower instance had understandably used the minimum case numbers. In addition, hospitals that had already reached the minimum case numbers in the relevant years and therefore received the mandate, will in future most likely increase their case numbers due to the concentration based on the planning, which is in line with the goal of the HSM-planning. The court added that a default threshold also promotes the efficiency, concentration and economical character. Furthermore, the court iterated that there is no legal entitlement to be included in the HSM hospital list; even if the minimal threshold of cases should be reached. Consequently, the Court dismissed the appeal.

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