Facts

The [A. AG] , a Spitex organisation operating in the canton of Thurgau, and its managing director [B.] jointly filed an appeal against the Government Council of the canton of Thurgau. The subject of the appeals were the amendment of the Thurgau Cantonal Health Insurance Ordinance (TG HIO) of 11 June 2024 as well as two decisions of the Government Council dated 25 June 2024 (RRB No. 495) and 27 August 2024 (RRB No. 582).

The contested provisions of the TG HIO introduced new obligations for Spitex organisations, including:

  • Determination of the need for non-university training and continuing education (§ 70a TG HIO),
  • Determination of training capacities for Spitex organisations (§ 70b TG HIO),
  • Criteria for determining training capacities (§ 70c TG HIO),
  • Measures in case of failure to achieve training capacities (§ 70d TG HIO),
  • Replacement levy for failure to fulfil the training obligation (§ 70e TG HIO),
  • Contribution to practical training (§ 70f TG HIO),
  • Obligation to provide data (§ 70g TG HIO).

The appellants argued that these regulations neither had sufficient legal basis in federal or cantonal law nor were compatible with fundamental rights (freedom of trade and industry, guarantee of property). In addition, the criteria for determining training capacities (§ 70c TG HIO) were not compliant with federal law, as they did not comply with the requirements of the Federal Act on the Promotion of Training in the Nursing Sector (FAPA). The replacement levy of CHF 3,600 per week of missed internship was disproportionately high.

The Government Council of the canton of Thurgau requested the dismissal of the appeals and referred to the implementation of the Nursing Initiative (Art. 117b Cst.) as well as the need to increase the number of qualified nursing staff. The Federal Office of Public Health did not submit a statement.

Considerations

The Federal Supreme Court first examined the admissibility of the appeals. It found that the amendment of the TG HIO of 11 June 2024 was contestable as a cantonal enactment within the meaning of Art. 82 lit. b FSCA, since no cantonal legal remedy was available. The decisions RRB No. 495 and RRB No. 582, however, were to be qualified as individual rulings and had to be challenged before the cantonal administrative court first. Therefore, the appeals against these decisions were not entertained, and the matter was referred to the Administrative Court of the canton of Thurgau for the purpose of establishing jurisdiction.

Insofar as the appeal against the amendment of the TG HIO was admissible, the Federal Supreme Court examined the compatibility of the new provisions with federal law. It found that the cantons were authorised under Art. 3 FAPA to enact criteria for determining training capacities, and that the provisions in §§ 70a–70e TG HIO were generally in line with the FAPA. The appellants were unable to demonstrate that the cantonal regulation violated the constitutional requirements (Art. 117b Cst.) or fundamental rights (Art. 27, 26 Cst.). In particular, the legal basis in § 22a TG HIA was sufficiently specific, and the proportionality of the measures was given, since they served the public interest in an adequate nursing supply.

The appellants argued that the provisions on training capacity (§ 70c TG HIO) did not comply with the criteria of the FAPA, as they did not take into account the number of employees, the structure or the service offering of the Spitex…