Federal Administrative Court, Decision C-1361/2019 from 9 March 2022

31 March 2022 – In this case, the appellant contested the allocation of service contracts in the area of complex highly specialised visceral surgery by the HSM decision-making body and in particular the fact that it did not receive such a service contract. The underlying demand forecast was not controversial. Rather, the appellant contested the selection of service providers to meet the identified need. According to the Court, the shortfall in coverage as brought forward by the appellant was only a slight shortfall, which was acceptable in terms of the assessment and the broad discretion of the HSM decision-making body and thus did not constitute inadequate care planning. The Court further rejected all other arguments of appellant in this regard and concluded that the HSM decision-making body did comply with the legal requirements for ensuring needs-oriented planning in accordance with art 58a ff. of the Ordinance on health insurance.

In addition, the appellant argued that based on the files it was not established that the relevant threshold regarding the quality of treatment was 12 cases (with regard to the minimum number of cases criterion). The Court held that minimum case numbers per hospital are recognised quality indicators. However, no exact threshold value can be derived for most treatments, i.e. no statements can be made with a high degree of probability about the number of cases above which the quality increases significantly or below which the quality of a certain intervention is no longer sufficient. The Court also stated that, in accordance with the case law of the Federal Administrative Court on cantonal hospital planning, the Court should not comment on the appropriateness of the level of the minimum case numbers. The minimum number of cases - per surgeon in the cases assessed - would only be problematic if they were set at such a high level that they would lead to a restriction of supply that would jeopardise the provision of care. In the case at hand, however, the minimum case numbers of 12 operations per hospital site were not high enough to do so. In addition, the Court held that that the retrospective assessment of the case numbers by the HSM decision-making body was appropriate in the present case.

Finally, the Court rejected all arguments of the appellant in relation with the examination of the economic viability and its non-consideration in the allocation of services.

Therefore, the Court rejected the appeal.

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