No coverage of hippotherapy costs by mandatory health insurance after age 20 for congenital conditions

Facts

The insured person A., born on 28 April 1998, is compulsorily insured for health care with Arcosana AG. Since birth she has suffered from a severe multiple disability within the meaning of congenital condition No. 390 of the Annex to the ConDisO (congenital cerebral palsy).

Until she reached the age of 20, the Disability Insurance (IV) granted, among other things, weekly hippotherapy-K as a medical integration measure. In the first half of 2018, the insured person asked the health insurer to cover the therapy costs from 1 May 2018. The health insurer refused by decision of 10 August 2018 and by objection decision of 29 March 2019.

The Cantonal Court of Basel-Landschaft upheld the appeal, set aside the objection decision and ordered the health insurer to reimburse the hippotherapeutic measures. Arcosana AG lodges an appeal in public law matters against this, requesting that its obligation to provide benefits be denied. The insured person requests dismissal of the appeal; the Federal Office of Public Health waived submission of a response.

Subject matter of the dispute: Whether the lower court violated federal law by ordering the health insurer to reimburse hippotherapy-K from 1 May 2018.

Considerations

Under Art. 25 para. 2 lit. a HIA and the HIBO, mandatory health insurance covers costs of physiotherapeutic measures on horseback only where these are caused by multiple sclerosis (Art. 5 para. 1 lit. b No. 8 HIBO). The compulsory benefits are therefore exhaustively categorised in this respect.

Under Art. 27 HIA, for congenital conditions not covered by the IV, mandatory health insurance covers the costs of the same benefits as for illness. The general conditions for benefits under the HIA also apply here; congenital conditions are not privileged over other illnesses. An exception is Art. 52 para. 2 HIA in conjunction with Art. 35 HIO, under which IV benefits for congenital conditions that belong to the IV benefits catalogue must be included in the lists under Art. 52 para. 1 HIA (analyses, medicines, means and appliances) and must be covered by mandatory health insurance after age 20.

The lower court had emphasised the broad concept of 'therapeutic measures' in Art. 52 para. 2 HIA and subsumed hippotherapy under it, relying on BGE 142 V 425. The Federal Supreme Court examines the interpretation according to wording, legislative history, systematic structure and purpose. The wording ('therapeutic measures') goes beyond the heading terms but is not unambiguous in conjunction with the marginal heading, which is why further elements of interpretation must be consulted.

The legislative history (motion by National Councillor Wick, statement by Federal Councillor Dreifuss, minutes of the SGK-SR) shows that only the assumption of costs charged to the lists named in Art. 52 para. 1 HIA was intended. Forms of therapy outside these lists (analysis list, medicines list, MiGel, SL) were not up for discussion, which is why hippotherapy does not fall under them. Systematically, Art. 25 para. 2 HIA clearly distinguishes between examinations/treatments and analyses/medicines/means, and Art. 35 HIO expressly refers to Art. 52 para. 2 HIA and thus to these lists; the ordinance provision is an implementing provision.

Teleologically, Art. 52 para. 2 HIA does aim at a…