In its judgment, the Federal Administrative Court (the Court) upheld the appeal of Spital Thurgau AG against a ruling of the Decision-Making Body of the Intercantonal Agreement on Highly Specialised Medicine (HSM-Decision-Making Body). The ruling had denied the hospital a service mandate for low rectal resection. The Court set it aside on account of serious violations of the right to be heard and remanded the matter.

Under art. 39 para. 2^bis of the Federal Act of 18 March 1994 on Health Insurance (HIA), the cantons jointly plan highly specialised medicine (HSM) in two steps: the assignment of a field to HSM and the subsequent allocation of service mandates. Rarity is a mandatory criterion for any assignment. The HSM-Decision-Making Body had assigned low rectal resection to HSM in 2016 on the basis of an estimated 500 procedures per year. The hospital submitted that the assignment was no longer lawful, as case numbers had averaged 783 per year and were forecast to reach 1’045 by 2028. The HSM-Decision-Making Body had declined to examine this claim, citing its discretion.

The Court held that the assignment was subject to incidental review in allocation proceedings. Whether rarity was still satisfied constituted a question of law, not of appropriateness. Given clear indications of materially changed case numbers, the HSM- Decision-Making Body had been required to reassess its rarity calculation, including the total number of digestive tract operations. By merely assuming unchanged circumstances, it had breached its duty to state reasons.

The Court further found a partial violation of the right of access to files. The minutes of the HSM bodies' meetings did not qualify as internal documents, as they summarised expert discussions and served to establish the facts. The Court expressly considered outdated the case law excluding file access to protect internal opinion-forming, at least once the decision-making process had been completed. The redaction of passages concerning other providers and the anonymisation of experts were, however, upheld. As such violations could not be cured on appeal in hospital planning matters, the ruling was set aside.

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