16. September 2024 – In its decision of 3 April 2024, the Federal Supreme Court partially upheld the appeal of a hospital against the decision of the Cantonal Arbitration Court for Health Insurance Disputes (Schiedsgericht in Sozialversicherungssachen) of the Canton of Basel-Stadt regarding the invoicing of TARMED tariff items 39.5070 («MRI Facial Skull/Paranasal Sinuses») and 39.5050 («MRI Neurocranium Overview»).

The Cantonal Arbitration Court had ordered the hospital to repay a total of CHF 1,688,511.34 to 28 health insurance companies for alleged overcharging of MRI scans. The health insurers claimed that the hospital had systematically invoiced both an MRI of the neurocranium (overview) (tariff item 39.5050) and an MRI of the face and paranasal sinuses (tariff item 39.5070), even though only one of these services had been necessary.

The hospital argued that the decision of the Cantonal Arbitration Court was based on an unrepresentative sample of 40 cases, which did not accurately reflect the broader population of 10,793 cases. The hospital contended that the individual circumstances of each case had not been sufficiently considered and that in some of the cases for which it had been ordered to reimburse, the MRI scans had actually been medically necessary.

The Federal Supreme Court found that the sample of 40 cases used as a basis was too small and not representative of the entire population of cases. The sample represented only 0.37 % of the total cases, and it was not clear how it had been compiled. Furthermore, the Court criticized the fact that the individual circumstances of each case were not sufficiently considered. The question of whether both, an MRI of the neurocranium (overview) and an MRI of the face and paranasal sinuses, were necessary could not be answered in a generalized manner for all cases.

Additionally, the Court confirmed that the relative limitation period under Article 25 para. 2 of the Federal Act on the General Part of Social Security Law (Bundesgesetz über den Allgemeinen Teil des Sozialversicherungsrechts, ATSG; [as in force until the end of 2020 and applicable in the case at hand]) had been correctly applied by the Cantonal Arbitration Court.

The Court overturned the judgment of the Cantonal Arbitration Court and referred the case back to it for reconsideration.

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