We will preface by saying that after examining the arguments of the parties and all the material of the case on the basis of the criteria detailed above for certifying a class action, we have reached the conclusion that the appeal should be accepted, and that the appellants' requests to certify the claims as class actions should be accepted.
Is it possible to file a class action against the health plans on the grounds that were claimed in the application for approval?
- The appellants argued that the action is included in Item 1 of the Second Addendum to the Class Actions Law, since in accordance with the Supreme Court's ruling in the High Court of Justice case, the HMO is also a "dealer" in relation to the services provided by virtue of the Health Basket, and this is all the more true with respect to services provided by virtue of the Shaban Plan; The claim is included in Item 7 of the Second Addendum to the Class Actions Law, since according to Section 28A of the Patient's Rights Law, a violation of the provision of Section 4 is considered The Patient's Rights Law also has a tort under the Prohibition of Discrimination in Products, Services and Entry to Places of Entertainment and Public Places, 5761-2000 (hereinafter: the Prohibition of Discrimination Law).
- According to the health plans, it is not possible to file a class action against them on the grounds detailed in the motion to certify a class action, because in providing the services that are the subject of the proceeding, they do not act as a "dealer", and this was not determined in the case of the High Court of Vital Justice; In view of the fact that the supplementary plan is not a plan that generates profits for the health plans, but is operated as a "closed fund", and the funds are not permitted to use the funds accumulated therein, in operating the supplementary plan the funds are not considered a "dealer", Rather, they operate it as part of the public role they fulfill by law, the provision of health services to the residents of the state; There is a substantial difference between the matter of this request and the matter that was heard in the case of the High Court of Justice Hayoun – the return of deductible amounts that were claimed to have been unlawfully collected; This matter should be inferred from the judgment in the case of Shamul [Civil Appeal 887-19 Shamul v. Clalit Health Services (November 21, 2022)], which ruled that a health fund is not a "dealer" in the matter of conducting clinical studies.
- As stated, the appellants filed the class actions against the health plans on the following grounds:
- Item 1 of the Second Addendum to the Law – a claim against a dealer, as defined in the Consumer Protection Law, in connection with a matter between him and a customer, whether or not they entered into a transaction;
- Item 7 of the Second Addendum to the Law – a claim on the ground under the Prohibition of Discrimination Law;
- Item 9(1) of the Second Addendum to the Law – a claim on ground under Chapters D, E or E1 of the Equal Rights for Persons with Disabilities Law;
The hearing of the appeal focused on the first two causes of action, and on the question of whether the health plans are "engaged" in the operation of the supplementary plan, and as appears from the appellants' arguments, it appears that they abandoned the third cause of action. In any event, when there are alternative causes of action that seek to establish an identical remedy, the court is not required to clarify all of them at the stage of the hearing of the motion for approval, and it is sufficient to certify the class action on one of the grounds that were claimed [Class Action (National) 47765-01-23 Reiner v. Leumit Health Services, (September 7, 2025), para. 87 and references therein].
- As stated, according to Section 3 of the Class Actions Law, which states that "no class action shall be filed except in a lawsuit as detailed in the Second Addendum..."The list of matters in connection with which a class action may be filed is a 'closed list', and it is not possible to file a class action in a matter that is not included in it [Civil Appeal 4110/18 Certain v. Kadima Science Education for Life in a Tax Appeal (November 7, 2020); Hayun High Court of Justice, paragraph 43 of Justice Baron's opinion; paragraphs 1, 3-4 of Justice Grosskopf's opinion]. In the case of the High Court of Justice Hayun, it was also held by all the justices that the various details in the second addendum "do not exclude each other, and that a claim of the applicability of one of them does not exclude the possibility of conducting a class action on the basis of another detail" (High Court of Justice Hayun, paragraph 6 of the opinion of Justice Grosskopf), and as a result, the rejection of the possibility of relying on one of these details does not prevent the possibility of relying on another detail (High Court of Justice Hayun, paragraph 7 of Justice Grosskopf's opinion). In addition, all the justices ruled that this principled approach applies even when the claim is against an authority. Therefore, even if the class action is filed against an "authority" as defined in the Class Actions Law, claims can be filed against it not only by virtue of Item 11 but also by virtue of other details (Item 1 in relation to activity as a dealer; Detail 7 in case of discrimination; Detail 8 in the case of employment discrimination; Item 9 in the case of a breach of the duty of accessibility) and more (High Court for Vital Justice, paragraph 8 of the opinion of Justice Grosskopf; paragraph 43 of the opinion of Justice Baron).
- As to the status of a health fund as an "authority", opinions were divided in the case of the High Court of Justice Hayoun. According to the majority opinion, according to Justice Grosskopf, who was joined by Justice (as he was then called) Amit, there is no room to sweepingly classify the health plans as an "authority" for the purposes of the Class Actions Law, but rather it is necessary to examine whether it is an "authority" with respect to the concrete action that is the subject of the class action. In other words, it is necessary to examine whether "the action performed by the health fund is 'the fulfillment of a public function according to the law' for the purpose of the administrative definition, i.e., for the purpose of exercising the administrative authority and for the purpose of applying the protections set forth in the Class Plaintiffs Law" (paragraph 22 of the opinion of Justice Grosskopf). On the other hand, Justice Baron was of the opinion that the health plans are an "authority" for the purposes of the Class Actions Law (paragraphs 31-34 of Justice Baron's opinion).
- The concrete action that was discussed in the framework of the High Court of Justice was the collection of deductible fees. In Justice Baron's opinion, the deductible fees collected by the health plans are not a mandatory payment but rather a "price", and as a result, Item 11 of the Second Addendum does not apply , and the question of whether the health plans are acting as a "dealer" in the collection of deductible fees, then (and only then) can a class action proceeding be conducted against them by virtue of Item 1 of the Second Addendum (paragraphs 35 to 44 of Justice Baron's opinion). According to Justice Grosskopf, the activity of collecting participation fees in relation to consumable equipment supplied as part of the health basket cannot be considered "fulfilling a public function according to the law", and therefore the health plans are not an "authority" in relation to this concrete action. Moreover, even if one should relate not to the collection action itself, but to the entirety of the action of supplying perishable medical equipment, the health plan cannot be considered as acting "to fulfill a public function in accordance with the law" in the framework of its relations with its policyholders. In light of the aforesaid, it is necessary to examine whether it is possible to approve the class actions filed against the health plans in accordance with Item 1 of the Second Addendum to the Law, i.e., whether the funds acted as a "dealer" (section 22 of the opinion of Justice Grosskopf). To complete the picture, we note that a request to hold an additional hearing in the judgment submitted by the HMOs was denied [Additional Hearing High Court of Justice 5701/21 Maccabi Health Services v. National Labor Court (April 27, 2022)].
- The question of the status of the health plans as "engaged" in the act of collecting deductible contributions is still pending, both in the Supreme Court and in this court, as detailed below:
- The Dubin case – In the Dubin case, the action of collecting deductibles from chronic patients and patients with serious illnesses, for services provided within the framework of the "Maccabi Basket" or the decision of the Exceptions Committee, and which are not included in the basic health basket under the Health Insurance Law, was examined. In the District Court's decision, it was determined that the Maccabi Health Fund should not be regarded as an "authority" in this regard, and the application for approval should be considered as having been submitted in accordance with Item 1 of the Second Addendum, and Maccabi can be regarded as providing health services to its members as a "dealer" when it collects a deductible from its members, in favor of the Maccabi Basket services. This is a collection that goes into Maccabi's coffers and not to the state, and Maccabi cannot be considered in this matter as fulfilling a public function according to the law [Class Action (Tel Aviv) 16985-05-12 Ella Dubin - Maccabi Health Services (October 23, 2022)]. An application for leave to appeal against this decision was submitted to the Supreme Court, which is still pending (Civil Appeals Authority 8858/22).
- The Hayoun case – Following the judgment in the Hayun High Court case, the Regional Court ruled that the health plans are a "dealer" in connection with the collection of deductible fees for health services set out in the health basket [National Health Insurance Law 35534-06-11 Hayun - Maccabi Health Services (January 11, 2024)]. Applications for leave to appeal were filed against this decision (which relates to four proceedings in the Regional Court), the hearing of which has been suspended at this stage for reasons of respect for the courts and in view of the possibility that the Supreme Court's decision in Civil Appeal 8858/22 may have one or another impact on the proceedings (decision of September 30, 2024 in Request for Leave to Appeal 43451-01-24, which relates to all requests for leave to appeal against the Regional Court's decision in the Hayoun case).
- The Rabinovich case - in the Rabinovich case [Class Action 57766-03-24 Pinchas Rabinovich - Leumit Health Services] pending in this court an appeal against the judgment of the Tel Aviv Regional Court [Class Action 11522-05-21 Rabinovich - Leumit Health Services (February 26, 2024)], in which a motion to certify a class action concerning the collection of deductible payments from patients with chronic illnesses and serious illnesses was denied, on the grounds that the "HMOs (not in their hat as a BN) are not a 'dealer' according to Item 1 of the Second Addendum to the Class Actions Law" (emphasis added – L.G.). The hearing of this appeal was also suspended at this stage until the Supreme Court ruled in Civil Appeal 8858/22.
- The question of the status of the health funds as a "dealer" in connection with the action of collecting deductible contributions was examined in Labor Appeal (National) 71026-09-16 Shlomo Eliyahu - Leumit Health Fund (August 15, 2023) (hereinafter – the Shlomo case), but at the end of the day it was not decided, because a decision was not required for a decision in the appeal, which was rejected for other reasons. A petition to the High Court of Justice against the judgment in the Shlomo case was rejected [HCJ 7600/23 Shlomo v. National Labor Court (December 17, 2023)]. The rulings in the Shlomo case that are relevant to the decision in the appeal will be addressed below.
- In our case, the question to be decided is whether the health plans are "engaged" in the framework of their activity in the Shaban, i.e., in the provision of additional health services that are not part of the basic health basket under the Health Insurance Law. This question was discussed inClass Action (National)57928-01-21 Anonymous - Maccabi Health Services (8.10.2023, allowed for publication on 28.2.2024)], in which a provision in the health plan's bylaws was discussed. It was held that in light of the fact that Maccabi did not argue against its view as a "dealer" according to Item 1 of the Second Addendum in its response to the motion to certify a class action or at other stages of the litigation, and the claim was raised only at a very late stage of the litigation, Maccabi is not entitled to raise this claim in the framework of the same proceeding, without prejudice to its claims in other proceedings. The question of the status of the health plans as a "dealer" in their hat as the operator of the supplemental plan also came up in a class action (national) 3090-06-23 Kfir Sapir - S.L.H. Medical Services (July 29, 2024) (hereinafter – the Kfir Sapir case), but this court was not required to rule on it in the same proceeding and chose not to express a position, one way or another. In Request for Leave to Appeal (National) 24304-12-23 Maccabi Health Services - Gretsch (May 11, 2025), the Tribunal was not required to rule on this matter, in light of its conclusion that the motion to certify a class action should be rejected for other reasons. A petition to the High Court of Justice filed against the judgment was rejected (High Court of Justice 4666-07-25).
- As stated, according to the ruling in the Hayon High Court case, it is necessary to examine whether a health plan is a "dealer" under the Consumer Protection Law, and as a result, whether a class action can be filed against it according to Item 1 of the Second Addendum to the Class Actions Law, against the background of the concrete action that is the subject of the motion to certify a class action. The Supreme Court reiterated this ruling in other municipal applications 6549/19 Anonymous v. Maccabi Health Services (September 12, 2022), ruling that the question of whether the health plan acted as a "dealer" should be examined "against the background of the concrete data" and that "this is a mixed question of law and fact."
- In our case, the question to be decided is whether the health plans are "engaged" in the operation of the supplementary plans. The essence of the Shaban plan was discussed at length by this court in the case of Kfir Sapir , when it said:
"As it has already been determined: 'The health system consists of three complementary systems, or three tiers: the first tier is the national health basket, the second tier is the supplementary health plans, and the third tier is commercial-private insurance... In summary, according to the National Health Insurance Law, the responsibility for providing services to the public health system rests with the health funds, and all residents of the country are entitled to a basket of health services as stipulated in the law and in the addendum to the law. This tier therefore provides universal health insurance within the framework of the health funds. The supplementary plans allow the patient to receive additional medications and services that are not included in the health basket, as an upgrade to the medical services included in the national health basket. The sources of funding for the supplemental insurance plans are the membership fees paid by the health plan policyholders who join the plan, as well as the participation fees collected when exercising the eligibility. Commercial policies – a market in which billions of shekels in annual premiums are collected annually – are private health insurance, and enable the provision of medical services beyond those provided in the national health basket and supplementary plans. This tier of commercial insurance sometimes complements the other two pillars, and sometimes overlaps them' (from the High Court of Justice 1393/16 The Medical Association of Israel v. Knesset of Israel (May 6, 2019), para. 4).