High Court Nixes Source of Funds for Kids' Dental Care

The High Court of Justice yesterday nixed a government plan to use some of the money originally earmarked for the "health basket" of state-subsidized medical treatments to instead fund dental care for children, which by law is not included in the basket.

Deputy Health Minister Yaakov Litzman, who authored the plan, called an urgent meeting last night to discuss how to respond. He said he is "determined" to begin implementing the plan this coming July, as originally scheduled.

In December 2009, the cabinet voted to take NIS 65 million of the NIS 415 million allocated to the health basket this year and use it instead to fund dental care for children up to eight years old. The cabinet only approved the details of the plan this month. But December's decision was enough to prompt three organizations - the Dolev Foundation for Medical Justice, the Israel Medical Association and the Movement for Quality Government in Israel - to petition the court against it, arguing that the government has no legal right to use money from the health basket to fund a treatment that, by law, is not included in the basket.

Justices Miriam Naor, Hanan Melcer and Isaac Amit concurred. While the government can add new treatments to the basket, they said, this requires the approval of the Knesset Labor, Welfare and Health Committee. Moreover, the new treatment must conform to the criteria set in the National Health Insurance Law. The justices also ordered the government to pay the petitioners NIS 10,000 in court fees.

The petitioners hope the money will now be restored to the health basket. "This is a historic decision, an unparalleled achievement for the country's sick," said attorney Gilad Rogel, who represented Dolev. "For them, this is a fateful decision, because the reduction in the health basket [budget] prevented life-saving drugs from being added" to the list of subsidized treatments.

A divisive proposal

The petitioners had argued that Section 6A of the National Health Insurance Law details exactly which treatments the basket can be used to subsidize, and comprehensive dental care for children is not one of them. In response, the state had argued that the list is comprised of broad categories that can easily be construed to include dental care - and so neither an amendment to the law nor approval by the Knesset Health Committee was necessary.

The Knesset's legal department, which filed its own brief on the matter, agreed that no amendment was needed, but said the Health Committee's approval was certainly required. The wording of the law, it said, mandates "parliamentary supervision whenever a new medical field, beyond those specified in the law, is added" to the basket. The current law permits state subsidies only for preventive dental care for children up to age five.

Litzman's proposal had divided civil society organizations, with several prominent groups - including the Association for Civil Rights in Israel, the Adva Center and Physicians for Human Rights - supporting it. Those three groups issued a joint statement yesterday stressing that the plan should not be dropped, as the court's decision merely said that this "important step ... must be carried out via an orderly legislative process."

Dr. Yitzhak Kadman, who heads the Council for the Welfare of the Child, said he was disappointed by the ruling. Despite any procedural flaws of the original cabinet decision, he said, the court's decision meant that "children will continue to suffer from toothaches."

The Health Ministry released a statement saying that it "attributes vital importance to including dental care for children in the health basket in accordance with the timetable that was set. We are studying the significance of the ruling. The High Court found a technical flaw in the cabinet's decision and ordered that the addition of a new field [of coverage] to the law must be done with the consent of the Knesset Health Committee."

Even if the hurdle posed by the court ruling is surmounted, however, there are other obstacles to getting the program launched on time. For one, Prime Minister Benjamin Netanyahu has insisted that private-sector dentists should also be able to offer the subsidized treatments, and not only those employed by the health maintenance organizations. That change would definitely require an amendment to the law.