Decision 9C_508/2022 dated 15 May 2023

8 juin 2023 – A. SA operates medical laboratories throughout Switzerland. By decree dated 10 November 2015, the Department of Finance and Social Affairs of the Canton of Thurgau (Departement für Finanzen und Soziales des Kantons Thurgau) authorized A. SA to operate a medical laboratory at the U. site for the period until 30 November 2020. On 22 February 2019, tarifsuisse ag filed a lawsuit on behalf of 33 health insurers against A. SA before the Administrative Court of the Canton of Thurgau as a court of arbitration and requested that the latter be obliged to repay the plaintiffs a total of CHF 1,391,562.67 due to laboratory services allegedly wrongly invoiced by A. SA at the expense of the mandatory health care insurance. In addition, the defendant was to be threatened with exclusion from activities at the expense of the mandatory health care insurance if it (also) violated the billing requirements in the future.

In its decision of 21 September 2022, the cantonal arbitration court dismissed the claim in its entirety. This decision was appealed by 24 health insurers.

First, the Federal Supreme Court held that compulsory health insurance only reimburses services provided by licensed providers. If reimbursements are paid to non-approved service providers, they are unlawfully provided and must therefore be refunded in accordance with art. 25 of the Act on General Aspects of Social Security Law (Bundesgesetz über den Allgemeinen Teil des Sozialversicherungsrechts, ATSG) in conjunction with art. 1 para. 1 Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG). In accordance with art. 53 para. 2 of the Ordinance on Health Insurance (Verordnung über die Krankenversicherung, KVV), laboratories were and are only approved if they are licensed under cantonal law. For laboratories that perform other analyses in addition to the basic care analyses on behalf of another licensed service provider, certain professional qualification requirements (Art. 53 para. 4 KVV) for the person in charge of leading the laboratory are also necessary.

In the Canton of Thurgau, medical laboratories require an operating license. The license is only granted if the licensing authority is notified of a management with overall responsibility and a member of the management with overall responsibility who is responsible for compliance with health care regulations and has the necessary professional qualifications. According to the relevant Thurgau ordinance, the provisions on health care professions apply mutatis mutandis to health care institutions. The independent practice of the profession of the head of a laboratory requires a separate permit, which is subject to professional requirements (Art. 54 Para. 3 KVV). The permit allows laboratory managers to perform medical analyses, but diagnostic and therapeutic activities are not permitted.

The cantonal court of arbitration had held in this regard that the field of activity of a medical laboratory was not determined solely by the further training title of the member of the management responsible for health regulations compliance. This interpretation of the cantonal licensing requirements would not be practical, since it would hardly be possible to find potential managers on the labour market who had the corresponding recognised further training titles for every type of medical analysis. The court had held that it was permissible to employ, in addition, other managers with other further training titles on a dependent basis. The consequence of this was that the laboratory was approved for other types of medical analyses. In the present case, the member of the management responsible for health regulations compliance had been trained in laboratory-medical analysis in clinical chemistry, but the laboratory’s employed leading persons had covered the other areas (hematology, immunology and microbiology). Thus, according to the cantonal court, no analyses had been performed and invoiced for which the license had been lacking.

The Federal Supreme Court held that the cantonal court’s interpretation does not violate the prohibition of arbitrariness. Thus, if the approval of the medical laboratory included not only laboratory analysis in clinical chemistry, but also in hematology, immunology and microbiology, the performance of such analyses and their billing at the expense of the mandatory health insurance did not violate federal law.

The appeal was dismissed.

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