The investigations deepened to which the CdG-E proceeded following the decision made by the FDHA on June 2, 2005 concerning five methods of complementary medicine revealed no element susceptible to confirm the presumption of a preferential treatment accorded to Groupe Mutuel. Noting that these suspicions are not based, the CdG-E decided to put a term to its survey. The CdG-E notes on the other hand the insufficient preparation of the decision made by the FDHA on June 2, 2005 and the fact that the Swiss Federal Office of Public Health didn't consult the Federal Office Private Insurance. The CdG-E proposes besides that the FDF examines the admissibility of advertising shares in favor of an insurance product that has not yet been approved by the FOPI. Finally, the staff for the field of the health insurance at the FOPI should be reappraised.
A. Initial situation and verifications concerning the main point of the investigations
June 2, 2005, the Federal Department of Home Affairs (FDHA) decided to free the Health Insurance of the taking over obligatory of the benefits raising five methods of complementary medicine with effect to July 1st, 2005. The FDHA communicated its decision June 3, 2005. June 6, 2005 already, the insurer-illness" Groupe Mutuel, Association of insurers" announced (hereafter Groupe Mutuel) the rollout of a new complementary insurance. This announcement has been followed, from June 9, 2005, of a national campaign of advertisement for this new product.
This advertising share was the subject of various objections. Some notably suspected Groupe Mutuel of having been informed beforehand about the decision of the FDHA of June 2, 2005. Thereafter, the medias and the political surroundings approached the question of the ties that the chief of the FDHA maintains with Groupe Mutuel and the possible influence of this last on the decisions concerning policy of health.
It is in this context that, at the time of its session of June 21, 2005, the Commission of management of the Council of the States (CdG-E) decided to conduct a prior survey.
The CdG-E notes that its deepened investigations revealed no element susceptible to confirm the suspicions expressed following the decision of the FDHA of structural June 2005 2 on the five methods of complementary medicine, according to which Groupe Mutuel would have benefited from a preferential treatment. It put a term therefore to its survey.
B. Other observations made during the investigations 1. Absence of transient arrangements in the decision related to the methods of complementary medicine
The commission is of opinion that the FDHA took the decision of June 2, 2005 without anticipating the effects (also on other departments) sufficiently of it.
The decision to free the Health Insurance of the obligatory taking over of services raising the five methods of complementary medicine is coming into force July 1st, 2005, either nearly immediately. In the same way to its decision, the FDHA announced that the insurers were going to offer the additional covers covering the services excluded of the basis coverage to conditions making them accessible to all insured probably. This statement of the FDHA didn't succeed however in avoiding the concern of the insured concerned.
It is only June 13, 2005 that the FDHA recommended to all Health Insurance to repay again (that is until end September 2005) during three months the benefits for the treatments undertaken before July 1st, 2005. This recommendation, which had not been communicated in an official manner and that didn't have any coercive character, didn't not only permit to lift the uncertainties, but contributed to increase confusion again. The insurers used the fact that is withdrawn from the basis insurance without reduction of early correspondent like argument to offer some insurance products free of charge (free service of the premiums) complementary of the benefits indirectly. Some insurers even tried to incite the conclusion of tacit contracts. The federal office of the private insurances (FOPI) could not approve any such steps. Within sight of the events, the absence of suitable and neat transient arrangements in appropriate time must be criticized. While decreeing such arrangements (after consultation of the FOPI), the FDHA would have been able to and must avoid a good party of the agitation and the insecurity incited by its decision. The commission estimates that the FDHA could have kept a bigger margin of manoeuvre while anticipating and while proceeding from more transparent manner. The commission asked the chief of the FDHA to take into account these reflections when some similar cases will represent themselves. 2. Void consultation of the FOPI by the federal office of the public health (SFOPH) The analysis of the decision of the FDHA of structural June 2005 2 on the five methods of complementary medicine allowed the CdG-E to note that the SFOPH didn't associate the FOPI to the decisionmaking. It is at the very least questionable that the SFOPH didn't warn the FOPI of the decision of the FDHA and didn't consult it whereas the fixing of the early responsibility to its domain of expertises. The commission estimates that the SFOPH should have informed the FOPI of the decision before making it public. As authority concerned concerning authorization of the tariffs, the FOPI was touched directly by the decision of the FDHA. Obviously, the collaboration and the platform of information institutionalized by the two offices in the setting of a permanent task group didn't function in the concrete case. The CdG-E asked the chiefs of the FDHA and the FDF to grant a bigger attention to the collaboration between these two offices and to take the measures that impose themselves in order to improve cooperation and the mutual information. A narrow collaboration is especially indispensable that the SFOPH and the FOPI exercise the surveillance of the domain of the insurance-illness together. 3. The admissibility of advertising shares in favour of a not yet approved insurance product by the FOPI In practice, the FOPI allows an insurer to make the advertisement for a product that has not yet been approved. On the other hand, an insurance product cannot be commercialized before have been approved by the FOPI. According to the office, there is merchandising from the moment an insurance policy is concluded. The commission estimates that it would be appropriate that the FDF examines the practice of the FOPI on the subject. An insurer's interests that want to promote and to commercialize its new product as quickly as possible are not the only ones in game. Consumer protection and the principle of the good faith in the business relationships are also in cause. It is indispensable to respect the principles being a matter for the right of the competition. The commission is of opinion that such an exam imposes itself especially as the practice of the FOPI doesn't found directly on a legal basis. The notion of merchandising and its modalities should also be specified on this occasion. The investigations of the CdG-E revealed that all insurers were not informed of this practice. For this reason, the commission estimates that it would be discriminating to specify it by means of instructions and of circular. 4. Staff for the field of the health insurance at the FOPI The CdG-E noted that the FOPI was overflowed with work during the period during which the approval requests of new insurance products complementary have been deposited. The staff in the domain of the health insurance at the FOPI corresponds to seven complete positions and is hardly sufficient to treat the few 1500 approval requests of products of insurances that are presented him every year. During the concerned period, the office should have returned at least 90 decisions (motherhood insurance, new products, modifications of tariff, etc.). In order to allow them to exercise their right to terminate, the insurers are held to inform their customers in appropriate time at the time of adaptations of the tariffs. So that this right is guaranteed, it is indispensable that the FOPI returns its decisions in time and hour. In this domain, resources of the office are not adapted obviously to the tasks and to the responsibilities that are his. The FDF must examine the question of the staff of the FOPI therefore closely and must take, if the case arises, the measures that impose themselves, or even to propose some to the federal Council and to the Parliament. |
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