In its decisions of 16 July 2024, the Federal Administrative Court did not admit the appeals from several Swiss health insurers against a provisional TARMED tariff set by Canton F. to avoid a tariff-free period.

The Departments E and D. of Canton F. and Canton E. had set a provisional TARMED tariff of CHF 0.91 per tax point, starting from 1 January 2024, to prevent a gap in tariff coverage until a final tariff could be approved. Several Swiss health insurers challenged this provisional tariff, requesting a reduction to CHF 0.89 or a rejection for reassessment.

The court confirmed its jurisdiction to review tariff approvals and determinations (including provisional measures) pursuant to Art. 46 et seq. of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG). It further stated that appeals against interim decisions are only admissible if they cause irreparable harm or if the upholding of the appeal would result in an immediate final decision and thus save a considerable amount of time or money for extensive evidentiary proceedings.

The court concluded that that the appealing parties had not substantiated any irreparable disadvantage. In particular, the approval of the appeal would not result in an immediate final decision. Rather, the application for a (lower) provisional tariff would imply that a final tariff is required. It would therefore merely replace one provisional measure with another. Additionally, setting the final tariff involves consulting the price supervisor, which falls outside the scope of interim measures. Therefore, for formal reasons alone, resolving the issue of reimbursement obligations through the provisional tariff complaint was not feasible.

Moreover, the mere fact that a tariff difference may be claimed retroactively could not constitute an irreparable disadvantage. A legally relevant disadvantage could only be considered if the insurers were threatened in their existence by the provisionally determined tariff or if they were unable to enforce their claims for repayment in the event of an unfavorable decision.

The court also rejected the appellants' claim of "incorrect practice". In particular, the appellants argued that the practice of always using the lowest of the rates requested by the parties, or ordered, or approved by the lower authority had been violated. The court held that the "practice of the lowest tariff" does not apply without exception. Rather, the lowest tariff should be exceeded if it is evident that this is necessary to avoid irreparable disadvantages for the service providers.

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