Annulment of the cantonal admission regulation for physicians in the outpatient sector due to lack of statutory basis

Facts

The Government Council of the Canton of Bern issued on 22 November 2023 the Ordinance on Admission to Activities at the Expense of the Compulsory Health Insurance (ZulaV), which entered into force on 1 January 2024. The ZulaV sets maximum numbers for physicians per medical specialty and region to ensure demand-oriented and economically viable medical care in the Canton of Bern. The maximum numbers were determined for various specialties such as general internal medicine, surgery, gastroenterology, orthopaedic surgery and pneumology in the Bern-Mittelland region as well as in the Emmental-Oberaargau, Oberland and Biel-Seeland regions. The maximum supply level was set at 115%.

The Association A. (an association representing the interests of invasively active specialist and attending physicians) and Dr. med. B. (a specialist in general internal medicine and cardiology) filed a public-law appeal with the Federal Supreme Court against the ZulaV. They requested the annulment of the ZulaV, alternatively the annulment of the maximum numbers pursuant to Art. 2 para. 3 and 4 ZulaV and the granting of a transitional period until the entry into force of the maximum numbers. The Government Council of the Canton of Bern requested the dismissal of the appeal. The Federal Supreme Court admitted the appeal and dismissed it.

Considerations

1. Standing of the Association A. and Dr. med. B.

The Federal Supreme Court confirmed the standing of the Association A. as a legal entity pursuant to Art. 89 para. 1 lit. b and c FSCA. The association statutorily represents the interests of its members, who are affected by the ZulaV, as they would not be able to obtain new billing authorisation at the expense of the compulsory health insurance (HIA) upon reaching the maximum numbers. This constitutes a legally protectable interest. Dr. med. B., as an already admitted service provider, is not directly affected by the ZulaV, but indirectly, as he might not be able to obtain admission for additional physicians employed in his practice. This also constitutes a legally protectable interest.

2. Lawfulness of the ZulaV as a cantonal implementing ordinance

The Federal Supreme Court found that Art. 55a HIA, in the version in force since 1 July 2021, constitutes a directly applicable provision that already contains the principle and the essential elements of the needs clause. The cantons are merely authorised to concretise this provision by implementing ordinances. An additional formal cantonal statutory basis is not required. The ZulaV is based on Art. 55a HIA and the Maximum Numbers Ordinance (HZV) of the Federal Council, which sets out the methodological principles for determining the maximum…