11 December 2023 – In its decision of 29 November 2023, the Federal Administrative Court concluded that the service mandate "AVQ Acute Somatic Care of Paraplegics" could not be assumed to be (predominantly) acute somatic hospital services, which is why the granting of the service mandate to the respondent on the hospital list of the Canton of Aargau was qualified as contrary to federal law.

It was disputed whether the service group “AVQ Acute Somatic Care for Paraplegics”, created specifically by the government council of the Canton of Aargau for the respondent, included hospital services – as distinct from nursing home services – and could therefore be granted to the respondent as a service mandate on the hospital list. The Federal Administrative Court held that cantons had a wide discretion in hospital planning and in issuing the hospital list. However, cantons can only include facilities in their hospital list that meet the federal requirements for a hospital (e.g., acute care hospital, rehabilitation clinic, psychiatric hospital). The specific service and infrastructure prerequisites under which hospitals are admitted as service providers under Art. 35 para. 2 let. h of the Federal Act on Health Insurance (HIA) are defined in Art. 39 para. 1 HIA. In particular, a hospital must comply with the planning jointly drawn up by one or more cantons for needs-based hospital care, whereby private sponsors must be appropriately included in the planning (Art. 39 para. 1 let. d HIA). In addition, hospitals or the individual departments must be included in the canton's hospital list, which is divided into categories according to service mandates (Art. 39 para. 1 let. e HIA). These requirements apply analogously to nursing homes (Art. 39 para. 3 HIA). According to the Federal Administrative Court, the fact that the services offered are to be provided on an inpatient basis in hospitals - in contrast to other possible service providers pursuant to Art. 35 para. 2 HIA - and are therefore hospital services is an implicit prerequisite for a canton to be able to issue a service mandate within the meaning of Art. 39 para. 1 let. e HIA. The Federal Administrative Court stated that despite the granting of a cantonal establishment license by the cantonal health authority, it could not be concluded that the respondent fulfilled the requirements of Art. 39 para. 1 HIA for hospitals. As there is no longer an acute hospital care need for the services provided by the respondent, and these services do not serve the treatment or conclusion of an acute phase, the Federal Administrative Court concluded that the service mandate "AVQ Acute Somatic Care of Paraplegics" could not be assumed to be (predominantly) acute somatic hospital services, which is why the granting of the service mandate to the respondent on the hospital list of the Canton of Aargau was qualified as contrary to federal law.

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