Decision 9C_672/2021 dated 19 July 2023

11 August 2023 – 16 August 2023 – On 24 November 2021, the Government Council of the Canton of Bern had enacted the Ordinance on Social Service Provision (Verordnung über die sozialen Leistungsangebote, SLV/BE) and decided to put it into effect on 1 January 2022. With an appeal in matters of public law, the Berne section of the Swiss professional association for nursing professionals (Schweizer Berufsverband für Pflegefachpersonal, Sektion Bern, SBK), the professional association Curacasa, A., and B. request that Art. 29 and Art. 30 of the SLV/BE be repealed, and that the government council be obliged to redefine the standard costs and further compensation valid from 1 January 2022. While the Canton of Berne concluded that the appeal should be dismissed insofar as it is to be upheld, the Federal Office of Public Health waives its right to a consultation procedure. In its concluding remarks of 13 December 2022, the Canton of Bern drew attention to the fact that the contested articles of the SLV/BE will be revised as of 1 January 2023.

Because no cantonal legal remedy was available in the canton of Bern, the decree could be appealed directly to the Federal Supreme Court. The Federal Supreme Court examined the conformity of Art. 29 para. 3 lit. b SLV/BE and the non-granting of a claim corresponding to Art. 30 SLV/BE with federal law. The two articles in dispute concern the residual costs, i.e., the share of costs not covered by compulsory health insurance that the canton of Berne covers. The complainants argued that the SBK Section Bern was not sufficiently involved in the legislative and tariff-setting process. However, the Federal Supreme Court emphasized that in general there is no right to be heard in the legislative process. Further, the complainants objected to the fact that they were deprived of the compensation according to Art. 30 SLV/BE compared to Spitex organizations with a service contract. However, the Federal Supreme Court held that the non-award of these compensations to non-contractual partners does not violate Art. 25a para. 5 of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG). Also, the Federal Supreme Court denied an unequal treatment violating the requirement of equality of rights under Art. 8 para. 1 of the Federal Constitution (Bundesverfassung, BV). According to the given circumstances and the additional obligations assumed by the relevant Spitex organizations, the unequal treatment is justified. Furthermore, the Federal Supreme Court examined whether the procedure of the canton to examine the cost structure of thirteen service providers that are representative for the supply relevant Spitex organizations violated federal law. The Federal Supreme Court finds that the approach is in line with the general principle of economic efficiency and is thus justified. Lastly, the complainants criticize the differentiation of the standard costs according to the category of service providers. However, the Federal Supreme Court held that the different standard costs are justified because they are based on comprehensible and factually tenable considerations.

The appeal was dismissed, insofar as it must be upheld.

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