Decision 9C_512/2022 dated 6 April 2023

4 maggio 2023 – A. is compulsory insured with Atupri Health Insurance (Atupri). By decision of 10 January 2022, the Social Insurance Institution of the Canton of Aargau (Sozialversicherungsanstalt des Kantons Aargau, SVA) included A. in the list of insured persons in default (hereinafter: list). The SVA also upheld this in its appeal decision of 25 January 2022. A.’s appeal against this decision was approved by the Insurance Court of the Canton of Aargau in its decision of 20 September 2022 and the SVA was instructed to remove A. from the list. The SVA appealed against this decision.

According to art. 64a para. 7 of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG), the cantons can record insured persons who do not meet their premium obligation despite debt collection on a list that is only accessible to the service providers, the municipality, and the canton. The canton of Aargau has made use of the option provided for in art. 64a para. 7 KVG and has commissioned the SVA to implement the list of defaulting insured persons. According to § 22 para. 1 of the Act on the Federal Health Insurance Act (Gesetz zum Bundesgesetz über die Krankenversicherung des Kantons Aargau, KVGG), the SVA makes the entry in the list of defaulting insured persons, among other things, if a) the municipality has not expressly requested non-inclusion in the list of defaulting insured persons within 30 days of receipt of the debt enforcement notice and clarification of the facts. Ultimately, the entry has the consequence that the insurers defer the assumption of the costs for benefits except for emergency treatments and notify the competent cantonal authority of the deferral of benefits and its cancellation after settlement of the outstanding claims.

In the present case, Atupri filed a debt collection request against A. with the competent debt collection office on 6 December 2021 (after numerous reminders), whereupon the latter issued the order for payment on 7 December 2021. Ultimately, the order for payment could only be served on A. on 11 January 2022. However, A. was already on the list of defaulting premium payers as of 10 January 2022. In this regard, the Insurance Court of the Canton of Aargau held that, according to the clear wording of art. 38 para. 2 of the Act on Debt Collection and Bankruptcy (Bundesgesetz über Schuldbetreibung und Konkurs, SchKG), debt collection began with the service of the payment order, which meant that the debt collection proceedings had not yet begun before that date and that no debt collection could be reported. Thus, a debt enforcement notification within the meaning of § 20 para. 1 KVGG, and thus the commencement of the 30-day period under § 22 para. 1 lit. a KVGG, was possible at the earliest with the service of the order for payment, i.e. in the present case on 12 January 2022. Consequently, an entry would have been admissible at the earliest after the expiry of a 30-day period on 10 February 2022.

The SVA considers this view to be arbitrary and argues that the procedure for inclusion in the list is independent of the debt enforcement and bankruptcy proceedings and that it also does not follow from the message on the KVGG that the 30-day period should be based on the service of the payment order. The decisive point in time for the beginning of the 30-day period according to § 22 para. 1 KVGG could only be the notification of the debt collection or the debt collection request by the health insurer. The court then had to deal with the question of the point in time from which entry in the list can take place and whether the interpretation of the Insurance Court of the Canton of Aargau can withstand the prohibition of arbitrariness.

In this regard, the court summarises that the interpretation made in the contested judgment, according to which the time of service of the order for payment is to be decisive for the beginning of the 30-day period pursuant to § 22 para. 1 KVGG, is not justifiable but arbitrary. Particularly according to its legislative history, but also according to its wording as well as its meaning and purpose, the provision of § 22 para. 1 KVGG is to be interpreted to the effect that the notification of debt collection as this a quo is to be understood as the information of the insured person and the municipality about the debt collection raised by the health insurer, emanating from the SVA (as the implementing agency for the list of defaulters).

Accordingly, the appeal was approved, the verdict of the Insurance Court of the Canton of Aargau overruled and the appeal decision of the SVA confirmed.

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