Economic efficiency review of a specialist in general internal medicine with self-dispensing: formation of comparison group in case of repayment under Art. 59 HIA

Facts

Proceedings 9C_259/2019 and 9C_260/2019 concern health insurance and were joined before the II. Social Law Division of the Federal Supreme Court in a judgment of 29 August 2019. The appellant is a specialist in general internal medicine in the Canton of Bern, represented by a lawyer. The respondents are sixteen health insurers, acting through the association santésuisse.

On 13 July 2017 sixteen health insurers filed an action with the Arbitral Tribunal for Social Insurance Disputes of the Canton of Bern (proceedings 200 17 661). They demanded repayment of amounts which the physician had wrongly collected for the billing-provider statistical year 2015 due to uneconomical or possibly non-statutory treatment. The reclaimed amount was quantified in the reasons at CHF 106'346.-, but was not quantified in the request for relief. On 11 July 2018 fifteen insurers filed a further action for the year 2016 (proceedings 200 18 531) for CHF 52'347.- as well as the definitive exclusion of the physician from practice at the charge of the OKP.

By decisions of 19 February 2019 the Arbitral Tribunal partially upheld the actions and ordered the physician to repay CHF 75'703.10 (2015) and CHF 70'956.05 (2016). For the remainder it dismissed the actions.

The physician filed a public law appeal with the principal request to set aside the decisions and dismiss the actions; he also requested suspensive effect. The insurers requested dismissal. The Federal Office of Public Health waived a response.

The Arbitral Tribunal's calculation was based on the statistical method of average cost comparison, evaluating the billing-provider statistics 2015 and 2016 and the ANOVA index (analysis of variance model). The comparison group consisted of physicians in the specialty of general internal medicine practising in the Canton of Bern. The ANOVA index of total costs was 162 points (2015 and 2016), the tolerance value 130 points. The index of direct costs excluding medicines was 229 (2015) and 235 (2016). A correction was made for medicines, since the physician had a below-average index of costs incurred (46 and 52 respectively). The direct costs amounted to CHF 175'111.20 (2015) and CHF 158'806.35 (2016).

The physician relied on the fact that the Federal Supreme Court, in judgment 9C_67/2018 of 20 December 2018, had qualified the cantonal authorisation to run a practice pharmacy as a practice characteristic, so that non-self-dispensing physicians had to be excluded from the comparison group. The Arbitral Tribunal considered this irrelevant, since in earlier decisions (2013 and 2014) the physician had not been classified as a self-dispensing physician in a separate group, and it proceeded on the basis that he was to be counted among the non-self-dispensing physicians.

Considerations

The appeals concern the same legal questions on the basis of the same factual findings of the cantonal Arbitral Tribunal, which is why the proceedings are joined under Art. 24 FCPA in conjunction with Art. 71 FSCA. As regards the reply, the Federal Supreme Court clarifies that criticism and requests which could already have been raised in the appeal are excluded in the reply proceedings (Art. 97 para. 1 and Art. 105 paras. 1 and 2 FSCA; BGE 133 I 100).

As to the quantification of the action in proceedings 2015, the Federal Supreme Court notes that the applicability of the CPC in the cantonal action proceedings under Bernese law (Art. 1 para. 2 VRPG, Art. 41 and 46 EG KUMV, Art. 89 para. 5 HIA) does not follow, which is why the admissibility requirements were correctly affirmed. In proceedings 2016 the Arbitral Tribunal could, under Art. 92 para. 3 VRPG and BGE 135 V 23, decide independently of the requests for relief and award more than was requested; there is no violation of the right to be heard.

The subject matter of the dispute concerns the repayment obligation under Art. 59 para. 1 let. b HIA due to violation of the economic efficiency requirement under Art. 56 para. 1 HIA. The Federal Supreme Court applies the law of its own motion, but within the scope of the duty to give reasons it only examines the points raised, unless there is a manifest violation of law (Art. 42 para. 2 and Art. 106 para. 2 FSCA).

The application of the ANOVA model and of the statistical method of average cost comparison is confirmed (BGE 144 V 79). The physician's objections are poorly substantiated. The physician's right of inspection (Art. 29 para. 2 Cst.) extends to the documents needed to verify the indices, but not to an explanation of how age and sex were taken into account in the ANOVA index. A small number of patients is not a practice peculiarity justifying a surcharge on the tolerance value.

The central…