Lack of Appeal Legitimacy of Health Insurers against the Inclusion of a Medication in the Specialty List

Facts

On June 28, 1999, the Federal Social Insurance Office (BSV) ordered, after hearing the Federal Pharmaceutical Commission, the inclusion of the anti-obesity drug XENICAL, distributed by Roche Pharma (Switzerland) AG, in the Specialty List at certain prices as of October 1, 1999.

The Concordat of Swiss Health Insurers (KSK) and Sanitas Health Insurance then filed an appeal with the Federal Appeals Commission for the Specialty List and requested the revocation of the order. Roche and the Federal Department of the Interior (EDI), represented by the BSV, filed an administrative court appeal against the decision of the Appeals Commission of September 28, 2000 that granted the appeal.

Considerations

The Federal Insurance Court first examined ex officio the legitimacy of the KSK and Sanitas to appeal. It concluded that neither the individual health insurers nor their associations have a legitimate interest within the meaning of Art. 48 lit. a VwVG and Art. 103 lit. a OG in the revocation of the order to include XENICAL in the Specialty List.

Although health insurers have a certain scope of discretion in the area of medical services, such as in the assessment of effectiveness, appropriateness and cost-effectiveness, this scope is not to be qualified as autonomy within the meaning of the case law, which would give them a legitimate interest of their own in challenging the inclusion of a preparation in the Specialty List.

Rather, the impact on health insurers of the inclusion of a medication in the Specialty List is no different than in…