On December 21, 2023, Legislative Decree No. 1620 (the “DL 1620”) was published in the Official Gazette “El Peruano”, which approves several amendments to Legislative Decree No. 1280, which approves the Framework Law for the Management and Provision of Health Services.
The following are the most relevant amendments introduced by DL 1620:
1. As a first amendment, it provides for changing the official name of Legislative Decree No. 1280 to “Legislative Decree that approves the Law on Universal Potable Water and Health Services”.
2. Likewise, DL 1620 incorporates the provision of drinking water service to the object and purpose of the Law, in addition to the health service. Thus, the purpose of the Law is to provide universal service, guaranteeing access, quality, equity and sustainability of drinking water and health services.
3. In addition, several modifications have been made to the principles governing the management and provision of drinking water and health services, including the following four principles: (a) circular economy; (b) reliability of service provision; (c) territoriality; and (d) disaster risk management. In particular, the new circular economy principle stipulates that service providers must provide for the valorization of by-products obtained from the provision of services, through their reuse and recycling, thus minimizing their generation.
4. On the other hand, DL 1620 has clarified the role of the State in the area of drinking water and health services, for which certain functions of the public entities involved in the sector have been modified and/or incorporated, as appropriate: the Ministry of Housing, Construction and Health (“MVCS”), the National Superintendence of Health Services (“SUNASS”), the Technical Body for the Administration of Healthealth Services (OTASS) and the Regional and Local Governments.
5. It is important to point out that, among other inclusions, DL 1620 states that the MVCS will be competent to: (a) promote Public-Private Partnerships (PPP), Works for Taxes (WTI), as well as other mechanisms of public and private participation in drinking water and health services; and, (b) promote the reuse of wastewater and the commercialization of products and by-products generated in the process of water treatment for human consumption and wastewater treatment.
6. Similarly, DL 1620 introduces the definition of “irregular providers”, which are those persons who, according to the provisions of the Law, are not authorized to provide drinking water and health services and are therefore obliged to become providers. SUNASS will exercise the functions of supervision, control and sanction of irregular providers, in accordance with the regulations approved for such purpose.
7. The procedure for obtaining a compulsory easement has been specified, indicating that, prior to the initiation of the corresponding administrative procedure, the lender must seek to obtain a conventional easement with the owner of the property, for which purpose it will submit, among others, an appraisal to be performed by the Construction Department of the General Directorate of Construction and Health Policies and Regulation of the MVCS. If an agreement cannot be reached, the provider may request the MVCS to impose the easement, attaching the aforementioned appraisal, which, as of the date the request is submitted, must not be older than two years.
8. Likewise, DL 1620 establishes that the MVCS may declare the extinction of the easement if the owner of the property demonstrates that the property remains unused for more than 36 consecutive months (whereas, previously, the regulation regulated a term of 12 months).
9. Finally, it is worth noting that DL 1620 incorporates certain provisions aimed at: (i) facilitating the execution and financing of interventions in areas declared in a State of Emergency due to disasters caused by natural or human-induced phenomena or which are in imminent danger; and, (ii) regulating SUNASS’ sanction regime that will be applicable to providers, officials of the provider companies, concessionaires (in cases of PPPs), irregular providers and Local Governments. SUNASS may sanction these persons with a written warning, removal order and fine.
For further information, please contact Diana Briones (dbriones@estudiorodrigo.com) and/or Diego Morales (dmorales@estudiorodrigo.com).
