The Federal Administrative Court is annulling the decision handed down in the Geneva Council of State hospital planning proceedings in respect of La Tour Hôpital Privé SA, which provided for restrictions on the maximum overall budget and the annual number of cases for each area of activity allocated to La Tour.
By a judgement of the Geneva Council of State dated 24 June 2015, La Tour Hôpital Privé SA was authorised to treat patients with retroactive effect from 1 January 2015 onwards on behalf of the compulsory health insurance cover (AOS) in various areas of activity. These areas include cardiovascular surgery, interventional cardiology, and gynaecology. The Council of State asked La Tour hospital in Geneva to restrict their overall budget to an amount not exceeding CHF 3,462,751. It also limited the number of cases for each area of activity. The hospital objects to this decision and criticises the Council of State for the unlawful way in which it determined the hospital planning and quantitative restrictions (budget and annual number of cases). Consequently, La Tour hospital lodged an appeal against this decision with the Federal Administrative Court (FAC) on 13 July 2015.
Failure to observe planning criteria and processes
The Court notes that Geneva’s hospital planning when assessing requirements and selecting tenders deviates from the mandatory minimum criteria set out in federal legislation on health insurance and the corresponding regulations. For example, issues such as patient flow between cantons and the criterion of cost effectiveness were not taken into account as they should have been. Since this basic assessment was flawed, so were the subsequent stages of hospital planning, in particular the award of the performance mandate to La Tour.
Quantitative restrictions unlawful
The quantitative restriction on the number of cases – as applied in the present case – goes against the meaning and spirit of the law. Specifically, said restriction was applied systematically to "private" hospital establishments in Geneva and to all areas of activity (as a means of steering policy), resulting in hospital planning that tends towards establishment-based funding rather than service-based funding. Furthermore, because this steering is static, it makes competition between hospitals impossible. Lastly, as this restriction is imposed solely on "private" hospitals and not on "public" hospitals, it contravenes the principle of equal treatment between competitors, as it is not based on any objective criteria.
Overall budget also unlawful
The FAC concludes that setting an overall budget also contravenes the law for the same reasons as quantitatively restricting the number of cases. Specifically, as the overall budget is derived from the number of cases allocated to the hospitals, the corresponding calculation is distorted. The Court thus revokes the hospital list and refers the judgement to the State Council of Geneva for further examination.
This judgement is final and may not be appealed to the Federal Supreme Court.
Judgment & Press release