By Emergency Decree No. 031-2021 (“DU 031“), published in the Extraordinary Edition on 10 March 2021, the payment regime for state compensation in favor of people who present an “Effect Supposedly Attributed to Vaccination or Immunization” (ESAVI in Spanish) of severe character was approved.
- Is the award of this compensation treated as an administrative procedure?
- What requirements should be credited for the award of compensation?
- Who determines if the severe effects (ESAVI) were caused by the vaccine?
- What specific rights may the person affected with ESAVI enforce if the Final Report proves a causal relationship between the adverse effect and the vaccine?
- How will the amount of compensation be calculated?
- What happens if the person concerned disagrees with the Advisory Committee’s Report?
- Can the appellant go to court directly without going through this procedure?
- How is compensation financed for those affected?
- Can this compensation be in conjunction with any other compensation that the person concerned may obtain?
Is the award of this compensation treated as an administrative procedure?
Yes, it is necessary to follow a free administrative procedure before the Ministry of Health.
It is a procedure in two instances, in which a National Advisory Committee on the Effects Supposedly Attributed to Vaccination or Immunization of the Ministry of Health (“ESAVI Advisory Committee“) plays a leading role and whose final report is not contestable before any other administrative authority.
What requirements should be credited for the award of compensation?
Compensation will be paid to those who meet the following three requirements:
- They suffer from a severe adverse effect (ESAVI) caused by the vaccine.
- The vaccine was acquired by MINSA and administered in Peru.
- There is a report that accredits a causal relationship between severe ESAVI and the COVID-19 vaccine administered.
Obtaining compensation does not require evaluation of negligence or defect of the vaccine; that is, it is fundamentally objective.
Who determines if the severe effects (ESAVI) were caused by the vaccine?
According to Article 3°, paragraph 3.2 of DU 031, the ESAVI Advisory Committee is the competent body to determine whether there is a causal relationship between severe ESAVI and the administered vaccine acquired by MINSA.
What specific rights may the person affected with ESAVI enforce if the Final Report proves a causal relationship between the adverse effect and the vaccine?
- One of the rights is the payment of compensation, determined by the bodies established by MINSA as the first and second administrative instance. The determination of compensation does not require assessment of vaccine negligence or defect.
- Another is the continuity of the coverage of your health insurance, either public or private, according to the current regulatory framework. Those who do not have health insurance will be immediately enrolled in the Comprehensive Health Insurance (SIS in Spanish).
How will the amount of compensation be calculated?
The amount of compensation will be calculated on the basis of the minimum living wage in effect at the time of the determination of the severe ESAVI, which is currently at S/ 930.00.
It should be noted that the specific criteria for establishing the exact amount will be determined by the MINSA through a supreme decree endorsed by the Ministry of Economy and Finance (MEF), which must also be approved within a maximum period of 60 calendar days, counted from the entry into force of DU 031.
What happens if the person concerned disagrees with the Advisory Committee’s Report?
If the appellant does not agree with the report (for example, because of the denial of the right or the amount approved), they can proceed to the administrative litigation process to enforce their right.
Can the appellant go to court directly without going through this procedure?
No, since for the purposes of the qualification of the contentious administrative claim, the Final Report of the ESAVI Advisory Committee is a requirement of admissibility.
How is compensation financed for those affected?
To finance these indemnities, the Ministry of Economy and Finance is authorized to enter into debt operations and contingent financing with multilateral agencies and official agencies, as well as to contract guarantees from multilateral agencies and official agencies.
Can this compensation be in conjunction with any other compensation that the person concerned may obtain?
The rule clearly states that the compensation granted under the framework is not exclusive of any other economic benefit which the affected person may access in accordance with the applicable regulations arising from contracts or insurance affiliations.
Some questions still unanswered in the Emergency Decree:
- Will the Executive Branch, after honoring the compensation, submit claims to the manufacturers of the vaccines?
- How will moderate and mild ESAVI be compensated?
- Will reparation include emergent damage, loss of profit, moral damage, etc.?
- If the Law of Administrative Litigation requires that the compensation claim be cumulatively filed with some other claim, how is the claim structured?
We trust that this information is relevant to you and your company. If you require a deeper understanding of the topic, do not hesitate to contact us.