No cost coverage for a hypospadias operation performed abroad for lack of relevant reasons (disability insurance, congenital disabilities)

Facts

Parties and proceedings: The appellant is [A.] , represented by his parents [B.A.] and [C.A.] , and represented by attorney Michèle Wehrli Roth. The respondent is the IV Office of Nidwalden. The contested decision is that of the Cantonal Administrative Court of Nidwalden dated 27 September 2021 (SlAO 21 5). The Federal Supreme Court (I. Social Law Division, Judgment 8C_782/2021 of 3 May 2022) decides on an appeal in public law matters in the area of disability insurance (congenital disabilities; medical measure).

Facts: [A.] , born on 21 January 2020, suffers from hypospadias and epispadias (urogenital malformation, congenital disability item 352 ConDisO). On 21 July 2020 the parents applied to the disability insurance for coverage of the operation by Prof. Dr. med. [B.] at the [C.] Clinic in Germany. On 23 September 2020 the IV Office stated that the procedure was also possible in Switzerland, so the operation in Germany was not considered simple and appropriate. By decision of 14 January 2021 the IV Office rejected the request for cost coverage for measures abroad. The Cantonal Administrative Court of Nidwalden dismissed the appeal by decision of 27 September 2021.

Requests: Before the Federal Supreme Court, the parents request that the IV Office be ordered to cover the costs to the extent that the benefit would have been provided in Switzerland; in the alternative, that the matter be remanded to the lower court to supplement the facts and determine the amount of the entitlement. The IV Office requests dismissal. The FSIO waived submission of an opinion.

Central question: Whether the lower court violated federal law by denying the entitlement to cost coverage for treatment abroad (Art. 23bis para. 1 and 3 InvIO; right of substitution).

Considerations

Admissibility of the request: The Federal Supreme Court first examines whether the request made at the last instance is an impermissible new claim under Art. 99 para. 2 FSCA. The subject matter of the dispute may be narrowed before the Federal Supreme Court, but not expanded or changed. In the proceedings before the lower court, it was disputed whether the IV Office must cover all costs of treatment abroad. The request to cover the costs only to the extent of the domestic benefit narrows the subject matter of the dispute; it does not expand or change it. The appeal is therefore admissible.

Standard of review of the facts and applicable law: The Federal Supreme Court bases its decision on the facts established by the lower court (Art. 105 para. 1 FSCA) and examines only the objections raised (Art. 106 para. 2 FSCA, strict principle of objections). A finding of fact is manifestly incorrect (arbitrary) only if it is clearly and obviously inaccurate. Since the decision was issued before 1 January 2022, the InvIA and the InvIO in the version valid until 31 December 2021 are applicable; the ConDisO likewise.

Statutory basis: Insured persons are entitled, up to the age of 20 completed years, to the medical measures necessary to treat congenital disabilities (Art. 13 para. 1 InvIA). Integration measures are granted in principle in Switzerland and only exceptionally abroad (Art. 9 para. 1 InvIA). Under Art. 23bis para. 1 InvIO, costs are covered abroad if implementation in Switzerland is impossible; under para. 2 in emergency measures; under para. 3 when implementation is carried out for other relevant reasons, but only up to the extent of the benefit to be provided in Switzerland.

No application of Art. 23bis para. 1 InvIO: The lower court correctly denied that implementation in Switzerland was impossible. The appellant does not dispute this.

Relevant reasons under Art. 23bis para. 3 InvIO: Relevant reasons must be of considerable weight, which is to be assessed prospectively (BGE 143 V 190 E. 7.2; 110 V 99 E. 2). Otherwise Art. 23bis para. 1 InvIO would become meaningless and Art. 9 para. 1 InvIA would be undermined. The mere experience of a foreign specialist clinic is not sufficient. Relevant reasons may exist, for example, in the case of rare diseases, unsuccessful domestic therapy, or the sustained medical recommendation of a therapy not available domestically. According to the KSME (margin no. 1239), these include the…