Decision C-3051/2021 dated 25 August 2023

14 septembre 2023 – 20 September 2023 – Ergolz Klinik AG was listed on the 2018-2020 acute somatic hospital list by the Canton of Basel Stadt with a service mandate for 18 service groups in various service areas. In September 2019, the application process for the identical 2021 hospital lists by the Cantons of Basel Stadt and Basel Landschaft was started. In October 2019, the Ergolz Klinik AG applied for a service mandate in eighteen existing and five new service groups. In May 2021, the Ergolz Klinik AG received a decision concerning the hospital list. The Cantonal Council no longer awarded the Ergolz Klinik AG any service mandates in eleven existing service groups and rejected all new applications. These service mandates concerned the service groups DER1, URO1.1., URO1.1.1, BEW1, BEW2, BEW3, BEW4, BEW5, BEW6, GYN1, GYN2, DER1.1, KIE1, BEW7, GYNT and KINB. Ergolz Klinik AG appealed this decision, with the Cantonal Council requesting the appeal to be dismissed.

The Federal Administrative Court stated that the interested hospitals should be sufficiently informed about specific service groups’ requirements. Insofar as (minimum) case numbers are to be used as a basis, the authority must disclose how the relevant case numbers are determined before it makes any decision regarding the hospital list. However, a (separate) hearing on this is not required.

The Federal Administrative Court further held that both the relevant level of the minimum case numbers as well as their application per hospital and/or per surgeon must be evident.

The court held that the relevant minimum number of cases and its determination were not clear from the hospital planning principles or from the justification of the hospital list decision, insofar as the latter referred to minimum case numbers (DER1.1, GYNT, URO1.1.1 und GYN2). The requirements of art. 29 para. 2 of the Federal Constitution of the Swiss Confederation (Cst.) were therefore not met. Furthermore, with regard to the other performance groups (KIE1, KINB, DER1, URO1.1, BEW1, BEW2, BEW3, BEW4, BEW5, BEW6, BEW7and GYN1), the court examined whether the justification met the requirements of art. 29 para. 2 Cst. The court concluded that Ego Klinik AG had not been informed of a material basis for the decision with regard to groups URO1.1, BEW1, BEW2, BEW3, BEW4, BEW5 and BEW6 and GYN1. In addition, regarding the service groups DER1, URO1.1, URO1.1.1, BEW1, BEW2, BEW3, BEW4, BEW5, BEW6, GYN1 and GYN2, it was not clear which period of time was decisive for the collection of the case numbers and to what extent any consideration of the 2019 case numbers affected Ergolz Klinik AG. Finally, the court also affirmed a violation of the obligation to state reasons due to the lack of clarity with regard to the decisive selection criteria for the quantity-controlled performance groups BEW1, BEW2, BEW3, BEW5 and BEW7.

Moreover, Ergolz Klinik AG was not granted access to the files relevant to the decision by the Administrative Commissions involved in the hospital planning procedure.

The Federal Administrative Court concluded that the Court had violated Ergolz Klinik AG’s right to be heard in accordance with art. 29 para. 2 Cst., art. 1 para. 3 in conjunction with art. 35 para. 1 of the Federal Act on Administrative Procedure and §12 para. 1 lit. b of the Cantonal Constitution of Basel-Stadt, since the decision on the hospital list, as far as it concerned their legal relationship, was inadequately substantiated in several respects. In addition, the Ergolz Klinik AG’s right to inspect the files was also violated.

The Federal Administrative Court annulled the decision on the hospital list insofar as it concerned the non-award of a services mandates to Ergolz Klinik AG in the service groups DER1, URO1.1, URO1.1.1, BEW1, BEW2, BEW3, BEW4, BEW5, BEW6, GYN1, GYN2, DER1.1, KIE1, BEW7, GYNT and KINB. In addition, the case was remanded to the lower instance for a new ruling in compliance with the right to be heard.

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