In its decision of 29 April 2025, the Federal Supreme Court partially upheld the appeal filed by a doctor against 21 insurances acting through santésuisse regarding the decision of the Arbitration Tribunal in Social Security Disputes Bern (Schiedsgericht in Sozialversicherungsstreitigkeiten des Kantons Bern). The Arbitration Tribunal had condemned the appellant to reimburse the amount of CHF 156'455.75 for the year 2019 based on uneconomical treatment methods (Art. 59 para. 1 let. b Health Insurance Act (Krankenversicherungsgesetz, KVG)).

Initially, the court emphasized that economic efficiency in this case must be assessed trough a two-step method. The first step involves a regression analysis to calculate the individual case value (regression index) and compare it to the group case value. Based on the outcome, a more detailed review of economic efficiency is conducted in the second step.

Regarding the first step, the appellant criticized the composition of the reference group (the reference collective) used for comparing the regression index. He argued that the comparison group should include only service providers similar to his practice in terms of their medical specialty and service profile, particularly regarding their main areas of treatment. However, the court held that the specific characteristics of the service provider should be considered in the case-by-case examination rather than in the construction of the reference group. Accordingly, the reference group composed of specialists in general internal medicine was 'sufficiently similar' to the appellant's status, provided that the group was limited to internal medicine practices acting as primary care providers.

Furthermore, the appellant argued that applying a tolerance margin of only 120 index points to determine the individual case value was unlawful. The court concluded that the parties involved in the contract had not specified a general tolerance value but rather had referred to existing case law. In case law, the tolerance range had always been assumed to be between 120 and 130 index points. Therefore, the margin of tolerance to be deducted from the appellant's individual index value was at least 20 and at most 30 percentage points. Therefore, the lower court must determine the tolerance deduction at its discretion. Hence, the court referred the issue back to the Arbitration Tribunal.

The appellant also pointed out various special features of the practice that should be considered in the individual case review. The court held, that the cost of general medical and delegated psychotherapeutic treatments would need to be determined separately and compared with corresponding reference groups. Additionally, the court found that special features of the practice that deviate from the services of the reference group in a legally relevant manner would need to lead to an adjustment of the index value.

Finally, the appellant argued, that the Arbitration Tribunal had calculated the amount to be reimbursed in violation of federal law. The court stated that a violation of the economic treatment requirement exists if the total cost index of direct and induced costs per billed patient is greater than 100 after deducting the tolerance margin and the quota attributable to the practice's special features. A claim for reimbursement may be considered if the same applies to the similarly adjusted index of direct costs. However, the basis for reimbursement is limited to total direct costs. Due to the requirement to consider direct and incurred costs in their entirety, the reimbursement rate and the amount to be reimbursed are calculated based on the total cost index. The calculation formula is therefore: Total direct costs multiplied by the quotient of the total cost index adjusted for the tolerance range and the quota for special circumstances in practice (minus 100) and the (unadjusted) total cost index. Therefore, the court concluded that, if the Arbitration Tribunal finds that the adjusted total cost index and the total direct cost index indicate that the service was uneconomical, the reimbursement amount would be calculated using this formula.

Consequently, the court referred the case back to the Arbitration Tribunal for a new decision.

The decision is scheduled for publication.

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