Dismissal of appeals against cantonal ordinance on medical practitioner admission in outpatient sector

Facts

The appellants, three specialist physicians in orthopaedic surgery and traumatology of the musculoskeletal system, filed two public-law appeals with the Cantonal Government of SocRA against the Ordinance of the Canton of SocRA on the admission of physicians in the outpatient sector (GamblA 842.13) and its Annex containing the maximum numbers in full-time equivalents (FTE) per specialist field (GamblA 842.13-A1), which were issued on 27 June 2023 and entered into force on 1 July 2023. The contested ordinance and annex are based on Art. 36 and Art. 55a HIA (as amended on 1 July 2021), Art. 5 HZV and cantonal legal bases (§ 3 EG HIA/ZG and § 24 HIA/ZG). They stipulate that the number of physicians providing services in the outpatient sector at the expense of mandatory health insurance (OKP) is limited by maximum numbers per specialist field. For the specialist field of orthopaedic surgery and traumatology of the musculoskeletal system, a maximum number of 21.9 FTE was set. The appellants sought the annulment of the ordinance and annex or, at least, an adjustment of the maximum number for their specialist field and the granting of suspensive effect.

The Cantonal Government of SocRA opposed the appeals and requested their dismissal. The Federal Supreme Court joined the two proceedings and treated them together. The appellants had previously also filed an appeal with the Administrative Court of the Canton of SocRA against the annex, which proceeding was however suspended. The Federal Supreme Court rejected the request for suspensive effect and confirmed the jurisdiction of the IIIrd Public Law Division for the assessment of the appeals.

Considerations

1. Admissibility of the appeals and jurisdiction of the Federal Supreme Court

The Federal Supreme Court first examined its jurisdiction and the admissibility requirements ex officio. It found that the contested ordinance and annex qualify as normative acts within the meaning of Art. 82 lit. b FSCA, as they contain general and abstract provisions that affect the legal situation of individuals. The annex was not classified as a generally-concrete general administrative act, since it does not regulate individually determined addressees but merely sets maximum numbers per specialist field. The appellants, as already admitted service providers, were affected by the provisions, as they might not be able to obtain further admissions for new physicians in the event of a practice succession or expansion. Thus, their standing to appeal was given.

2. Compliance of the cantonal ordinance with fundamental rights

The Federal Supreme Court examined the contested ordinance in the context of an abstract cantonal norm review for its compatibility with higher-ranking law, in particular the Federal Constitution and the ECHR. It emphasised the restraint in reviewing cantonal norms, in particular with due regard to the principle of federalism and proportionality. A cantonal norm is only annulled if it cannot be interpreted in conformity with the Federal Constitution or the ECHR. The Court also took into account the likelihood of a fundamental-rights-compliant application of the provision.

3. Division of powers and separation of powers

The appellants alleged a violation of the separation of powers and cantonal rules on jurisdiction, as the ordinance had been issued at cantonal level without a formal statutory basis. The Federal Supreme Court dismissed this objection and found that the ordinance is based on a valid cantonal delegation norm (§ 3 EG HIA/ZG and § 24 HIA/ZG). Moreover, Art. 55a HIA is to be qualified as a directly applicable federal statutory provision that merely leaves the cantons the task of concretising it through implementing ordinances. The cantons have no discretionary power that would require an additional formal statutory basis.

4. Intercantonal coordination and need clause

The appellants complained that the Canton of SocRA had set the maximum numbers without sufficient coordination with other cantons. The Federal Supreme Court, however, found that the Cantonal Government had complied with the required intercantonal coordination pursuant to Art. 55a para. 3 HIA and Art. 7 HZV. It referred to the regular exchange between the cantons and the consideration of cantonal particularities. Moreover, the need clause of Art. 55a HIA is to be qualified as a permissible socio-political objective that justifies the restriction of the admission of service providers in order to curb health care costs. The appellants were unable to convincingly demonstrate that the maximum numbers are not a suitable means of cost control.

5. Arbitrary legislation and calculation bases

The appellants alleged arbitrary legislation, in particular due to the allegedly insufficient data basis for determining the medical supply and demand. The Federal Supreme Court dismissed this objection and found that the Canton of SocRA had used data from the Federal Statistical Office (FSO) and the Federal Office of Public Health (FOPH) for the calculation of the maximum numbers. The methods and data sources used were comprehensible and complied with the federal legal requirements. The appellants were unable to demonstrate any concrete errors in the calculation. Moreover, the…