Federal Administrative Court, Decision C-3194_2019 from 20 January 2022

18 February 2022 – In this case, the Federal Administrative Court had to examine whether the allocation decision made by the decision-making body of Highly Specialized Medicine (HSM) under the Inter-cantonal Agreement on Highly Specialized Medicine (IVHSM) was lawful.

The HSM-decision-making body did not award Spital Thurgau AG a performance mandate for the area of complex highly visceral surgery – pancreas resection in adults since the hospital did not reach the minimum number of cases. Spital Thurgau AG appealed this decision.

After careful examination, the Court decided that the allocation decision did not violate federal law. It was not unlawful that the HSM-decision-making body did not award the appellant a performance mandate in the area of pancreas resection because the minimum number of cases was not reached in the relevant time period of three years. According to the Court, it is not decisive in this case whether the appellant has fulfilled the service-specific requirements with regards to the infrastructure and the necessary specialist staff as well as the potential of reaching the minimum number of cases in the future. The HSM-decision-making body has considerable discretionary power regarding the selection of HSM-hospitals. The applicable law does not give individual hospitals the legal right to be included in the HSM-hospital list. Hence, the Court dismissed the appeal.

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