(Section 45 of the judgment).
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It was further ruled in the Shlomo case that in deciding whether the health plans should be regarded as a "dealer" for the purpose of collecting deductible fees, in addition to the purpose of the Consumer Protection Law, the purpose of the Class Actions Law must also be taken into account (section 47 of the judgment).
- We are of the opinion that although the supplementary plan also has a significant public dimension, as was ruled in the Kfir Sapir case, the scales tend to be viewed as "engaged" in the activity of operating the supplementary plans, and as a result, a class action can be filed against them, at least according to Item 1 of the Second Addendum to the Class Actions Law. This is for reasons that will be detailed below.
- There is no dispute that health funds are dual entities, and that their activities have significant public characteristics, and as was ruled in the case of the High Court of Justice in the opinion of all the judges, their activity is "a public service of the highest order, which is at the core of the system of social rights granted to the residents of the state, and at the basis of the perception of the State of Israel as a 'welfare state'" (paragraph 31 of Justice Baron's opinion; Section 1 of Justice Grosskopf's opinion). See also: The Shlomo case (paragraph 44 of the judgment); Civil Appeal Authority 4958/15 Clalit Health Services v. Aharon (October 23, 2017), paragraph 16 of the opinion of the judge (as he was then called) Amit). At the same time, it was ruled in the Aharon case that "the resident's connection to the health plan is different from the relationship between a shareholder and a company, and is closer to the relationship between a service consumer and a service provider. A similar position was expressed by the Attorney General, who believes that a member of the health plan is a customer of the health plan" (paragraph 33 of Justice Amit's opinion); See also the decision of the Jerusalem Regional Court, Case 1459/09 K. - Maccabi Health Services (January 9, 2012), where it was ruled that the health plans are a "dealer" and a member of the health plan is a "customer"; this decision was annulled in the framework of a labor appeal (national) 39413-01-12 Maccabi Health Services - K.B. (March 10, 2013), but this was done with the consent of the parties and without a reasoned judgment being given. Another commercial characteristic of the HMOs' activity is the option given to them to hold other corporations in accordance with the provisions of Section 29 of the Health Insurance Law.
- In the case of the High Court of Justice Hayoun, it was clarified that "the determination that the health plans fulfill a public function according to the law (i.e., an authority) does not preclude the classification of the collection of deductibles as an activity they carry out as a 'dealer.'" Regarding the activity of collecting deductible fees in the case of the High Court of Justice Hayoun, Justice Baron noted in a side note that:
"The fact that the deductible is a price that is voluntarily charged to the health plan policyholders, when according to the claim, the amount varies from one health plan to another, ostensibly tipping the scales in favor of classifying the health plan's actions in this context as an activity they carry out in their hat as a 'dealer,' and also the power and information disparities between the health plans and the insured in collecting the deductible, ostensibly have an impact on the decision. (See and compare: Matter Asal , paragraph 27; Civil Appeal 7808/06 Sara Levy - State of Israel - Ministry of Housing, paragraphs 12-13 (August 20, 2012). At this point, it should be noted that in the Aharon case, it was noted that in contrast to the relationship between a shareholder and a company, the relationship between an insured and a health plan is 'closer to the relationship between a consumer of services and a service provider' (paragraph 33)."