Decision 9C_256/2023 dated 18 July 2023

27 luglio 2023 – On 23 January 2020, A. purchased two packs of 112 tablets each of the medication B., a product for smoking cessation, at the expense of SWICA Krankenversicherung AG (“SWICA”), with which he is insured under mandatory health care insurance. After A. had again purchased the medication B. on 18 January 2021, SWICA charged the insured person for this purchase, as it was outside the limits of the list of pharmaceutical specialties (Spezialitätenliste, SL). The health insurance company subsequently upheld this decision in its ruling of 23 March 2022 and objection decision of 1 November 2022. The appeal filed by A. against this decision was dismissed by the Social Insurance Court of the Canton of Zurich in its ruling of 24 February 2023. A. appealed against this decision to the Federal Supreme Court and requested that the health insurance company be obliged to incur the costs for the purchase of the B. medication of 18 January 2021.

The court points out that the authorities have determined which medicinal products are to be covered by the compulsory health insurance (obligatorische Krankenpflegeversicherung, OKP). Based on the list principle anchored in Art. 34 para. 1 of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG), health insurers can, in principle, only cover the medicinal products provided for in the SL. A medicinal product can be included in the SL under the conditions stipulated in art. 65 of the Ordinance on Health Insurance (Verordnung über die Krankenversicherung, KVV). If not in the SL, it can still be reimbursed by the OKP in exceptional cases if the conditions according to Art. 71a ff. KVV are met.

The drug B. is listed in the SL with a limit; according to this, only a single therapy of 12 weeks per 18 months can be reimbursed by the OKP. Since the insured person had already purchased two packs of 112 tablets of this medication on 23 January 2020, it is clear that cost coverage within the SL limit is out of the question in this case. In principle, therefore, only cost coverage in accordance with art. 71a ff. KVV is possible. When deciding on whether there was a major therapeutic benefit in the meaning of Art. 71a para. 1 lit. b KVV, the court states that for such major therapeutic benefit, there must be corresponding evidence from clinical studies or other published findings. Whether the insured person subjectively feels a benefit is irrelevant for the assessment. In the specific case, according to the binding findings of the cantonal court, the complainant suffers from an obstructive pneumopathy of primarily allergic origin. However, a major therapeutic benefit of a (long-term) intake of the drug B., which only aims at a reduction but not a complete cessation of cigarette consumption, has not been scientifically established. The fact that the health insurance may have to cover "expensive and lengthy treatments precisely because of the denied access to medication" does not change this.