Let us recall that an experimental incentive mechanism was introduced on the basis of Article 51 of the Social Security Financing Law (LFSS) for 2018 to encourage and enhance the value of hospital prescriptions of biosimilar medicinal product delivered in the city.

In a ruling of December 31, 2019, the Council of State had specified that ministers could, within this framework, issue measures concerning the prescription of medicinal products having, at least in part, the same therapeutic indications, even though they do not belong to the same generic group or the same similar biological group under two conditions: 

  • the ministers must not use the concepts of “similar biological medicinal products” or “biosimilar medicinal products” in a different sense from that resulting from the Public Health Code; 
  • the incentives provided by the ministers must be aimed at improving the relevance and efficiency of prescribing

How can the “efficiency” of a prescription be measured ?

This is the question that the Council of State answers in its decision of August 1, 2022. 

It specifies that the notion of efficiency, applied to hospital prescriptions delivered in the city, implies a real analysis of the costs, taken as a whole, generated for the health insurance by the different prescriptions relevant to the same therapeutic indication.

In practical terms, therefore, ministers cannot simply argue that a measure is likely to “diversify sources of supply” and “free up financial leeway” for health insurance by allowing price competition.

The question remains: on what basis will ministers have to justify the “relevance” of a prescription?

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