Federal Supreme Court, Decision 9C_460/2021 from 1 April 2022

29 avril 2022 – In the present case, the Federal Supreme Court had to decide whether there was an obligation of the canton of Geneva to bear residual care costs within the meaning of Article 25a para. 5 Health Insurance Act (HIA). After having stayed with her daughter in the canton of Zurich for some time, the complainant, albeit being resident in Geneva, had entered a medical institution located in the canton of Zurich. Subsequently, the complainant had requested from the Department of Security, Employment and Health of the Canton of Geneva that the canton of Geneva (Département de la sécurité, de la population et de la santé, DSPS) assume the residual care costs of her stay in the said medical institution. The DSPS denied this request and stated that the canton of Geneva only payed residual care costs for residents staying in a medical institution of geographic proximity, while this perimeter exclusively included the French-speaking cantons of Switzerland. The lower court (Court of Justice of the Republic and Canton of Geneva, Social Insurance Chamber), however, priorly recognized the obligation of the canton of Geneva to pay the residual care costs to the complainant based on Article 25a para. 4 HIA.

The Federal Supreme Court (hereinafter the Court) first examined the legislative steps that led to the revision of Article 25a para. 5 HIA (into its current wording). After careful consideration of the parliamentary initiative “Amending the system for financing healthcare” as well as the parliamentary debates on the initiative and the resulting draft, the Court held that it was the will of the legislator that the canton of residence was competent to determine and obliged to pay residual care costs. Furthermore, the Court stated that if a person stayed in a medical institution outside the canton, the canton of residence applies its cantonal rules and regulations to determine the amount of residual care costs to bear, unless at the time of admission to the medical institution of the person concerned, no other place could be made available in a medical institution close to the place of residence, in which case the canton was obliged to take over the residual care costs according to the rules of the canton where this institution is located. Thus, the canton of Geneva could not evade its competence to bear the residual care costs merely based on the grounds that the person concerned was staying in a medical institution outside the canton or in an institution which was not geographically close to the canton of Geneva. As Article 25a para. 5 HIA precisely aims at ensuring that the residual care costs, i.e. the entirety of the actual care costs that neither the compulsory health insurance nor the insured person would bear, are borne by the public authorities, i.e. by the canton or (if the latter decides to make them contribute) by the concerned municipalities, the canton of residence is also obliged to assume the care costs when a person chooses to stay in a medical institution outside the canton. Moreover, the Court came to the conclusion that the principle of the assumption of residual care costs by the canton of residence did not depend on whether a place in a medical institution in the canton of residence could be made available to the insured person on admission to the institution. On the one hand, this factor is only relevant for the determination of the rules applying to the assumption of care costs, i.e. whether the rules and regulations of the canton where the medical institution is located are applicable if there is no place available in a nearby medical institution in the canton of residence. On the other hand, if such a place is available, the canton of residence determines the bearing of the care costs according to its own rules.

Therefore, the Court ruled that the Court of Justice of the Republic and Canton of Geneva, Social Insurance Chamber, rightly decided that the canton of Geneva was obliged to bear the residual care costs of the complainant and that the appeal of the canton of Geneva was thus unfounded.

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