12. Juli 2024 – In its decision of 29 May 2024, the Federal Administrative Court ruled on the appeal by Spitalverband Limmattal against the allocation decision made by the Decision-Making Body of Highly Specialized Medicine (Beschlussorgan der Interkantonalen Vereinbarung über die hochspezialisierte Medizin, HSM-Decision-Making Body) under the Inter-cantonal Agreement on Highly Specialized Medicine (IVHSM). The HSM-Decision-Making Body did not award Spitalverband Limmattal a performance mandate in the field of complex urological treatments for adults, specifically radical and simple cystectomy. In the context of the appeal proceedings, Spitalverband Limmattal submitted a request for the granting of a provisional performance mandate until the final decision is rendered by the Court.

In its considerations, the Court referenced its established case law, which permits the provisional grant of a disputed service mandate to an appealing hospital that has not been awarded a fixed-term performance mandate. This was justified from the perspective of continuity. However, this case law should not be extended to the case at hand, where the hospital in question has not yet been awarded a fixed-term service mandate in the relevant field. In such a constellation it was reasonable to impose stricter criteria for the issuance of a provisional performance mandate, as including the hospital on the cantonal list of hospitals (Spitalliste) would not be in the best interests of legal certainty. For potential patients of the hospital in question, this would indicate that the costs of services provided by the hospital would be reimbursed by compulsory health insurance (Obligatorische Krankenpflegeversicherung), although such reimbursement was rather uncertain. Furthermore, it would not be in line with the ratio legis of hospital planning – needs-based hospital care and cost containment – if a hospital not yet on the hospital list were to be granted a provisional performance mandate.

In light of the Court's determination that the prediction regarding the final decision, as a mere summary examination, lacked sufficient clarity, the Court rejected the appeal.

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