Federal Administrative Court, C–4236/2020 of 22 December 2020
15 October 2021 – As of 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 appellants 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 on an ordinance. They therefore claimed that these amendments were null and void because the appellants' rights of participation had not been respected. The Federal Administrative Court began by stating that it could examine the MiGeL as a component of the Health Care Benefits Ordinance (KLV), although in a limited manner, since the FDHA has wide discretion. On the merits, however, the court disagreed with the appellants: In contrast to the SL, the MiGeL did not provide an exhaustive list of devices with prices and did not list individual brand names, but only general product groups. Nor did 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, was addressed to an undefined group of addressees. Contrary to the appellants' view, the MiGeL was thus not an order, but an ordinance. Accordingly, its entries did not need to be based on contestable individual decisions and the appellants thus did not have neither status or a right to be heard, according to the court.
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