In its decision of 9 December 2024, which is set for official publication, the Federal Supreme Court partially upheld the appeal of A. AG, a provider of outpatient healthcare services, against the ruling of the Arbitration Court in Social Insurance Disputes (Schiedsgericht in Sozialversicherungsangelegenheiten) of the Canton of Bern. Several health insurers had sought reimbursements totaling CHF 719,451.70 before the Arbitration Court alleging excessive billing (Überarztung) under the compulsory health insurance (obligatorische Krankenpflegeverischerung, OKP).

The appellant argued that the Arbitration Court had conducted the cost-effectiveness review without a detailed individual case examination and without considering the specific characteristics of the practice. After summarising the legal basis for cost-effectiveness reviews (Art. 32 para. 1, Art. 56 para. 1 and para. 6 of the Health Insurance Act [Krankenversicherungsgesetz, KVG]), the court held that, as per the legal mandate, the tariff partners had agreed on the screening method on 20 March 2018. The court emphasized that conspicuous costs did not automatically equate to inefficient practices. Whether this was the case had to be clarified in detail through an individual case analysis.

The court explained that the cost-effectiveness and potential reimbursement of an outpatient medical practice are assessed differently. It stated that the total cost index includes all costs related to the doctor's behavior, such as prescribed medications, laboratory services, and physiotherapy. If the practice’s total cost index (minus the tolerance margin) exceeds the reference group’s index, the question of economic treatment must be examined further. However, only direct costs per patient are refundable. Therefore, the court clarified that the cost index from the screening could not be directly used for reimbursement calculations and that the tolerance margin and specific practice characteristics must be deducted.

The court held that the reimbursement claim before the cantonal arbitration court must be based on the results of a full individual case assessment and could not be shifted to the arbitration process. It noted that the adversarial and formal litigation process, where the authority responsible for cost-effectiveness becomes a party, was unsuitable for addressing the technical review of the reimbursement claim. The court concluded that the Arbitration Court had violated Art. 56 para. 6 KVG in methodological terms.

Furthermore, the court examined the appellant's other submissions, which partly concerned the screening procedure (i.e., the choice of comparison group and the use of an outdated pharmaceutical cost group list [pharmazeutische Kostengruppe, PCG list]) and partly the phase of the individual case review (extended hours and special medical qualifications, as well as a high number of multimorbid patients).

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