In its judgment, the Federal Administrative Court (the Court) upheld the appeal of a private clinic against a decision of the Government Council of the Canton of Vaud and referred the matter back for a new decision on the clinic's admission to the cantonal hospital list. The clinic had applied for service mandates covering various areas of acute somatic care, including orthopaedics, hand surgery, knee arthroscopy, hip and knee prostheses, and spinal surgery. The Government Council had refused to include the clinic in the hospital list applicable from 1 January 2024, considering, among other things, that demand was already covered by better-ranked hospitals.

The Court first confirmed that cantons enjoy considerable discretion in hospital planning under art. 39 of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG). It therefore rejected the clinic's objections to the Canton of Vaud's decision not to adopt the elective basic package used under the Zurich hospital planning model and to concentrate certain services among a limited number of providers. Provided that healthcare needs are adequately covered, cantons may select the most suitable providers and concentrate services in order to promote synergies, quality, and cost-effectiveness.

However, the Court found several aspects of the canton’s selection methodology incompatible with federal law. In particular, the canton had assigned different weighting factors to its planning criteria, thereby establishing a hierarchy between criteria such as quality, cost-effectiveness, working conditions, remuneration models, and admission obligations. Referring to its previous case law, the Court held that while cantons have discretion in defining planning criteria, they may not establish an order of importance between them. The weighting system therefore violated the requirements of art. 39 KVG.

The Court further held that additional cantonal planning criteria must be demonstrably linked to the statutory objectives of quality and cost-effectiveness. The canton’s broad requirements concerning compliance with collective employment agreements did not satisfy this requirement, as their relationship to quality and cost-effectiveness had not been sufficiently substantiated. While remuneration rules aimed at preventing inappropriate economic incentives were in principle permissible, the canton could likewise not simply apply the salary cap used by the University Hospital of Lausanne (CHUV) without demonstrating its compatibility with the KVG. Finally, the assessment of cost-effectiveness could not disadvantage a new applicant merely because comparable historical cost data or established accounting models were unavailable; the canton was required to assess suitable alternative information where necessary.

The Court therefore annulled the decision and referred the matter back to the Government Council for reassessment in accordance with these principles.

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