Decision 9C_135/2022 of 12 December 2023

16 febbraio 2024 – In its decision of 12 December 2023, the Federal Supreme Court partially approved the appeal of a doctor who had appealed against the decision of a cantonal arbitration tribunal regarding repayment for uneconomical treatment. The "polypragmatic billing" respectively a violation of economic efficiency requirement was disputed.

The Court has ruled on the performance audit of doctors. The case centred on the question of whether the self-dispensing of medication by doctors leads to higher costs and whether this practice peculiarity must be taken into account in the performance audit.

In principle, the services covered by compulsory health insurance must be effective, appropriate and economical (Art. 32 para. 1 Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG)). The service provider must limit its services to what is in the interest of the insured person and necessary for the purpose of treatment (Art. 56 para. 1 KVG). "Polypragmatic billing", as claimed by the opposing party (26 health insurance companies), occurs when a doctor charges considerably more than other doctors in the same area without being able to claim any special features. Cost-effectiveness can be verified using either the statistical method (comparison of average costs), the analytical method (case-by-case examination), or a combination of both methods.

The complainant was right in arguing that the screening as such does not in itself establish uneconomic treatment and therefore cannot form the basis for a claim for recovery. The case-by-case examination indicated in this case, in which in particular the individual characteristics of the medical practice are considered, then brings to light whether the previously questioned economic efficiency of service provision has actually been violated within the meaning of Art. 59 KVG. Only this complete assessment can form the basis of an action for a reimbursement before the cantonal court of arbitration (see Art. 59 para. 2 KVG). The case-by-case examination was not carried out in full. In view of the foregoing, the basis for the decision of the previous court was incomplete. The appellant therefore has rightly criticised the fact that the opposing party respectively the Arbitration Court of Bern did not fully implement the individual case analysis as the second part of the performance audit. This was a violation of Art. 56 KVG.

The Court's decision to refer the case back to the Arbitration Court of Bern for reconsideration includes consideration of the unique practice of "self-dispensing".

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