Land Allocation for Investment Arrangement
On October 16, 2023, the President of Republic of Indonesia issued Presidential Regulation No. 70 of 2023 on Land Allocation for Investment Arrangement (“PR 70/2023”). As a background, PR 70/2023 was issued based on the awareness of the Government to increase the effectiveness and efficiency in the utilization of resources for equal investment and public welfare. Further, the Government intends to realize the land allocation distribution in the mining, plantation, and forest sectors for village-owned enterprises, region-owned enterprises, business entities owned by social organizations, cooperatives, and small and medium-size enterprises.
We set out below the key provisions of PR 70/2023.
♦ Key Definitions
It is important to note several definitions provided under the PR 70/2023, as follows:
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- The Task Force for Land Use Arrangement and Investment Arrangement is defined as a task force established by the President of Republic Indonesia in order to arrange the fair land use, arrangement of business licensing for mining, plantation, and forest sector, as well as to increase the effectiveness and efficiency to optimize the utilization of natural resources (the “Task Force”).
- Land is defined as land area designated for mining activities and concession of the utilization of forest or plantation areas.
- The Sector Supervisor (Pembina Sektor) is defined as the Ministers who organize the government affairs in the (i) energy and mineral resources, (ii) environmental and forestry, (iii) plantation, and/or (iv) agrarian/land and spatial planning.
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♦ Duties of Task Force
Article 2(1) of PR 70/2023 stipulates that the duties of the Task Force are, among others:
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- Mapping the use of the land for mining, plantation, and forest utilization activities as a result of the change/revocation of business licensing and concession permits in the forest area;
- Provide the recommendation to the minister/head of agency that administers the Government affairs in the field of investment/coordination on capital investment (Kepala Badan Koordinasi Penanaman Modal or the “Head of BKPM”) to carry out the revocation of business licensing for the mining, plantation as well as concession permits in the forest area; and
- Carry out Land classifications and determine fair allocations of Land in an effort to provide benefits for public welfare.
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♦ Evaluation of Implementation of Business Activities by Sector Supervisor
Article 3(1) of PR 70/2023 provides that the Sector Supervisor shall carry out an evaluation of the business actors on their business licenses in mining, concession permits in the forest area, or plantation sector in accordance with their relevant business licenses. The Sector Supervisor carries out the evaluation of the implementation of business activities on the following factors, among others:
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- Realization of the implementation of business activities in accordance with the purpose of business licenses;
- Completeness of the basic requirements and other relevant licenses and/or concession permits; and/or
- Suitability of the implementation of business activities with the Land designation.
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Based on the above evaluation, pursuant to Article 3(3) of PR 70/2023, the Sector Supervisor shall convey the evaluation report to the Task Force to make changes to the business licenses relating to the reduction of Land area, revocation of business licenses, and/or revocation of concession permits in the forest area.
According to Article 3(4) of PR 70/2023, thereafter, the Task Force shall convey its recommendation to the Head of BKPM to (i) make changes to the business licenses relating to the reduction of Land area; (ii) revoke the business licenses; and/or (iii) revoke the concession permits in the forest area. As for the use of the Land, the Task Force shall convey the recommendation on the deletion of the rights of the land to the minister that administers government affairs in the agrarian/land and spatial planning sector (the “Minister of Agrarian Affairs”).
In light of the above, in accordance with Articles 3(6) and (7) of PR 70/2023, based on the recommendations from the Task Force, the Head of BKPM shall issue the decree letter(s) on the change of business licenses relating to the reduction of the Land, revocation of the business licenses, and/or the revocation of concession permits in the forest area. As for the Minister of Agrarian Affairs, after receiving the recommendations from the Task Force, the Minister of Agrarian Affairs shall delete the rights of the land in accordance with the prevailing laws and regulations.
♦ Classifications of Utilization and Allocation of Land
After the evaluation as elaborated above, in accordance with Article 4(1) of PR 70/2023, the Task Force shall conduct the classifications of the utilization and allocation of the Land. Article 4(4) of PR 70/2023 stipulates that the Land classifications includes (i) the economical potentials, or the natural wealth contained therein; (ii) suitability of the spatial planning with the business activities; (iii) land capacity and environmental protection. Further, based on Article 4(5) of PR 70/2023, the re-allocation of the Land shall be given to the following business actors:
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- village-owned enterprises;
- region-owned enterprises;
- business entities owned by social organizations;
- cooperatives;
- small and medium-size enterprises; or
- large enterprises.
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♦ Allocation of Land for Mining Activities
Based on Article 5(1) of PR 70/2023, based on the classifications of the utilization and allocation of Land, the Sector Supervisor (i.e., the Minister of Energy and Mineral Resources) delegates its authority to determine, offer, and grant Mining Business Permit Areas (Wilayah Izin Usaha Pertambangan or “WIUP”) to the Head of BKPM. Please note that according to Article 5(2) of PR 70/2023, the authority to determine, offer, and grant the WIUP by the Head of BKPM is for the Land derived from the revocation of business licenses before PR 70/2023 is issued. Based on such WIUP, the Head of BKPM conducts an offer and grants the WIUP to the business actor(s). Thereafter, in accordance with Article 5(4) of PR 70/2023, after receiving the WIUP, the business actor shall apply for Mining Business Permit (Izin Usaha Pertambangan or an “IUP”) through the OSS system.
♦ Allocation of Land for Concession Permits in Forest Areas
Based on Article 7(1) of PR 70/2023, the concession permits in the forest areas include (i) the approval of the forest utilization (persetujuan penggunaan kawasan hutan); (ii) the approval of the forest area relinquishment (persetujuan pelepasan kawasan hutan); (iii) the business license of forest utilization; and/or (iv) the business license for the provision of natural tourism facilities (izin usaha penyediaan sarana wisata alam). Article 7(2) of PR 70/2023 further stipulates that the Sector Supervisor (i.e., the Minister of Environment and Forestry) delegates its authority to issue the determination of forest area direction map (peta arahan kawasan hutan or the “Forest Area Map”) and investment arrangement on the Land that has been reduced or revocation of concession permits in forest area to the Head of BKPM.
In accordance with Article 7(3) of PR 70/2023, based on the Forest Area Map and the investment arrangement, the Task Force shall offer the available Land in the forestry sector to business actors. Pursuant to Article 7(4) of PR 70/2023, for a business actor who is interested in the offer of available Land in the forestry sector, the Task Force shall evaluate such business actor based on certain aspects, namely, (i) the potential land area; (ii) completeness of administrative/management requirements; (iii) technical aspect and environmental management; and (iv) financial support. Further, if the business actor fulfils the requirements, the business actor shall apply for the concession permits through the OSS system.
♦ Allocation of Land for Plantation Activities
According to Article 8(1) of PR 70/2023, the Head of BKPM shall determine the availability of the Land in the plantation area that may be allocated to business actors. Thereafter, the Task Force shall offer based on such available Land to business actors. Under Article 8(3) of PR 70/2023, for a business actor who is interested in the offer, the Task Force shall evaluate such business actor based on the same aspects as the concession permits in forest areas (please see the aspects in the allocation of land for concession permits in forest areas’ section above). If the business actor fulfils the requirements, the business actor shall apply for conformity of space utilization activities (Kesesuaian Kegiatan Pemanfaatan Ruang or an “KKPR”) through the OSS system, and the Minister of Agrarian Affairs shall issue the KKPR through the OSS system. Thereafter, the business actor shall apply for the application of the rights of the land to the Minister of Agrarian Affairs.
October 20, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com) and M. Raehan A. Fadila (mfadila@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Land Allocation for Investment Arrangement
Mandatory Reporting of Job Vacancies
On September 25, 2023, President Joko Widodo enacted Presidential Regulation No. 57 of 2023 on Mandatory Reporting of Job Vacancies (“PR 57/2023”). PR 57/2023 became effective as of September 25, 2023.
PR 57/2023 aims at optimizing the placement of workers within the job markets and to reduce the unemployment rate at the national level. PR 57/2023 revokes and replaces Presidential Decree No. 4 of 1980 (“PD 4/1980”) on the same matter.
Unlike PD 4/1980 that required job vacancy reporting in writing, under PR 57/2023 the reporting shall be conducted within the manpower services related platform, called the Manpower Information System, that is conveniently accessible via the internet for the purpose of reporting of job vacancies.
In essence, PR 57/2023 provides provisions regarding employers’ obligation to report job vacancies in Manpower Information System and the sanction in the event of non-compliance.
We set below several key points related to the above matters regulated under PR 57/2023.
♦ Mandatory Reporting of Job Vacancies
The primary focus of PR 57/2023 is the mandatory reporting of job vacancies by employers to the Minister of Manpower (the “MOM”) through the Manpower Information System. For this purpose, PR 57/2023 defines an employer as any individual, company, legal entity, or any other body that employs any employee and pays salary or any other compensation (to such employee) in any form.
This reporting obligation extends to both domestic and international job vacancies. Specifically for international job vacancies, it shall be reported through integration with the Manpower Information System and in compliance with laws and regulations on the placement and protection of migrant workers.
The mandatory job reporting mechanism starts with the employers’ report of the job vacancies to the MOM through the Manpower Information System. Kindly note that this reporting is free of charge. Following this report, the officials at the MOM shall verify such report. Once verified, such job vacancies will become openly accessible to the job seekers, employers, and the Government. Kindly note that once the relevant job position has been filled, it is also obligatory for employers to notify the MOM through the Manpower Information System.
It should also be noted that further details on the procedure for the reporting of domestic job vacancies and the procedure for the reporting of job vacancies being filled shall be further regulated under an MOM regulation.
In this regard, PR 57/2023 provides the following definitions on job seekers:
- Members of the workforce who have never worked and who are trying to secure a job;
- Members of the workforce who have previously worked but who for some reason have discontinued working or been dismissed and who are trying to secure a job; or
- Members of the workforce who are working or who already have a job but who for some reason are still trying to find additional employment.
♦ Utilization of Job Vacancies Information
The job vacancies information that has been reported and submitted to the Manpower Information System shall be publicly-accessible information and available at no cost for jobseekers, employers, and the Government. Based on PR 57/2023, the reporting of domestic job vacancies shall include the following information: Employers’ identities; Titles of the position and the required number of employees; Positions’ requirements, including information such as age, gender, education, skills, experiences, salary, domicile, and other relevant requirements.
It is worth mentioning that such job vacancies’ information may be utilized for various purposes by relevant parties, including the employment of suitable talents, the creation of employment plans, job placement plan, job market analysis, training demand analysis, unemployment benefits program and so forth.
♦ Awards and Sanctions
Under PR 57/2023, the MOM, relevant governors, or mayors/regents may present awards in the form of plaques or other types of awards to employers who report their job vacancies’ information. Conversely, the non-compliance with the mandatory domestic job vacancies reporting and the mandatory job position fulfilled reporting will result in the imposition of administrative sanctions in the form of written warnings.
In this regard, PR 57/2023 does not provide any details relating to either the granting of awards or the imposition of administrative sanctions. Instead, PR 57/2023 provides that both details shall be further regulated under an MOM Regulation.
October 12, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Rizky Rakhmadita (rrakhmadita@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Mandatory Reporting of Job Vacancies
Health Omnibus Law Series – Health Law Replaces Law No. 44 of 2009 on Hospitals
This Newsflash is a part of our Health Omnibus Law Newsflash Series on the issuance of Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including provisions on hospital matters. The Health Law repeals and replaces several laws including Law No. 44 of 2009 dated October 28, 2009 on Hospitals (the “Hospital Law”).
This Newsflash discusses the pertinent changes on hospitals. Please see below the notable provisions related to Hospitals under the Health Law.
♦ General Overview on Hospitals
Previously, the Hospital Law defined a hospital as a health service institution that organizes a complete individual health services that provides inpatient, outpatient and emergency services. As for patients, under the Hospital Law a patient was defined as any person who consults about his or her health problems to obtain the necessary health services, either directly or indirectly at a Hospital.
Now, the Health Law introduces more thoroughs definitions of a hospital and a patient. Under the Health Law, a hospital is defined as a health service facility that organizes a complete individual health services through promotive, preventive, curative, rehabilitative and/or palliative health services by providing inpatient, outpatient and Emergency Care services. A patient is defined as any person who obtains the health services from medical personnel and/or healthcare personnel.
♦ Notable Changes in Health Law
In the Hospital Law, a hospital could be designated as a teaching hospital after the requirements and standards were met. It was also stated that the title of teaching hospitals would be determined by the Minister of Education and Culture of the Republic of Indonesia.
The Health Law now regulates certain new provisions about teaching hospitals, including the new definition of a teaching hospital which is defined as a hospital that has a function as a place of education, research and healthcare services in an integrated manner in the education for medical personnel and healthcare personnel sector as well as multi-professional continuing education.
Under the Health Law, a teaching hospital shall cooperate with a higher education institution to organize an academic education program, a vocational program, and a professional program, including a specialist, or a subspecialist program. In organizing the education, a teaching hospital must meet the requirements, standards and accreditation.
After such fulfilment of the requirements as stated above, the Minister of Education and Culture, along with the relevant accreditation bodies, will grant a permission to a teaching hospital.
♦ Obligations and Rights of Hospitals and Patients
Obligations of Hospitals
Pursuant to the Health Law, a Hospital is required to perform the following obligations:
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- to provide correct information about Hospital services to the public;
- to provide the health services that is safe, quality, anti-discriminatory with prioritizing patients’ interests in accordance with hospital service standards;
- to provide emergency services to patients according to their service capabilities;
- to play an active role in providing health services in the event of disasters according to its services ability;
- to provide facilities and services for underprivileged community or people;
- to carry out social functions, among others, by providing service facilities for underprivileged patients, emergency services without down payment, free ambulance, service for victims of disasters and extraordinary events, or social services for humanitarian missions;
- to create, implement, and maintain the quality standards of health services in hospitals as a reference in serving patients;
- to organize medical records;
- to provide proper public facilities and infrastructures, including places of worship, parking lots, waiting rooms, facilities for persons with disabilities, breastfeeding women, children and the elderly;
- to implement a referral system;
- to reject the patient's wishes that are contrary to professional and ethical standards and applicable regulations;
- to provide correct, clear and honest information regarding the rights and obligations of a patient;
- to respect and protect the rights of a patient;
- to implement the hospital ethics;
- to have an accident prevention and disaster management system;
- to implement the government programs in the health sector, both regionally and nationally;
- to make a list of medical personnel who practice medicine or dentistry and other healthcare personnel;
- to formulate and implement internal regulations of the Hospital;
- to protect and provide legal assistance to all of the staff members of the hospital in carrying out their tasks; and
- to enforce the entire hospital environment as a smoke-free area.
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The Health Law does not introduce any changes with respect to the obligations of hospitals as listed above. However, the Health Law introduces a set of obligations for Health Services Facilities which include hospitals. Therefore, a hospital will be subject to the following obligations set out for the Health Services Facilities:
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- to provide broad access to the needs of services, education, research and service development in the health sector;
- to organize quality health services and prioritizing a patient’s safety;
- to organize medical records;
- to report on the results of services, education, research and development to the Central Government with a copy to the relevant Regional Government through the Health Information System;
- to make efforts to utilize the results of services, education, research and development in a system as an effort to overcome health problems in the regions; and
- to establish the standard operating procedures with reference to health services standards.
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Rights of Hospitals
The Health Law stipulates that a hospital has the following rights:
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- to determine the number, types, and qualifications of human resources according to the hospital’s classification;
- to receive compensation for services and determine remuneration, incentives, and awards according to the provisions of laws and regulations;
- to cooperate with other parties in developing services;
- to receive assistance from other parties in accordance with the provisions of laws and regulations;
- to claim any party that causes losses to the hospital;
- to obtain legal protection in implementing health services; and
- to promote health services in hospitals in accordance with prevailing laws and regulations.
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Obligations of Patients
In relation to the obligations and rights of patients, the Health Law determines the following obligations of patients:
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- to provide complete and honest information about their health problem;
- to comply with the advice and instructions of Medical Personnel and Healthcare Personnel;
- to comply with the provisions that apply to Health Service Facilities; and
- to pay compensation for services received.
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Rights of Patients
Patients have the following rights:
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- to obtain information about their own health;
- to obtain adequate explanation regarding the Health Services they receive;
- to obtain the Health Services in accordance with medical needs, professional standards, and services quality;
- to refuse or agree to any medical action, except for a medical action required for prevention of infectious diseases and management of outbreaks or extraordinary events;
- to have an access to the information contained in the medical records;
- to ask for the opinion of Medical Personnel or Healthcare Personnel; and
- to obtain other rights in accordance with applicable laws and regulations.
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We note that the Health Law does not introduce any major change with respect to the obligations and rights of Hospitals and Patients as set out under the previous Hospital Law.
♦ Hospital Legal Protection and Legal Responsibility
The Health Law provides that a hospital is not legally responsible if a patient and/or his or her family refuses or discontinues a treatment which may result in the death of the patient after a comprehensive medical explanation.
A hospital may not be prosecuted for carrying out its duties in saving human lives.
As to the legal responsibility, the Health Law provides that a hospital may be held legally responsible for all losses incurred due to negligence carried out by the health personnel of the hospital.
Please note that the implementing regulations of the Hospital Law continue to be valid as long as the regulations are not contrary to the Health Law.
September 19, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Rae Chalista (rchalista@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Dispute Settlements between Health Personnel and Patients
This Newsflash is part of our Health Omnibus Law Newsflash series with respect to the issuance of Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). As noted in our previous Newsflash, the Health Law is issued using an omnibus method. The Health Law revokes several laws in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”).
The Health Law governs a wide range of topics in the health sector, including the procedures of settling disputes arising between health personnels and patients.
We highlight the key dispute settlement related provisions under the Health Law, as follows.
♦ Obligation for Health Personnel to Form a Panel of Council in order to Uphold Professional Discipline
The Health Law acknowledges the importance of the enforcement of the Professional Discipline to all health personnel. The Health Law requires the Minister of Health of the Republic of Indonesia (the “Minister”) to form a panel of council to uphold and carry out the duties with respect to the Professional Discipline. The panel of councils may be formed permanently or on an ad hoc basis, at the Minister’s discretion.
The patients or their families whose interests are violated by an action of health personnel may submit a complaint to the panel of council. The complaint shall include at least the following information: (i) the identity of the complainant, (ii) the name and address of the place where the health personnel carry out his/her practice, and (iii) the reason for the complaint. Subsequently, the panel of council will determine whether or not there is a violation of Professional Discipline by the relevant health personnel in providing the health services.
The Health Law governs that any violation of Professional Discipline will be followed up with various forms of sanctions, including (i) a written warning, (ii) an obligation to attend certain education or training session(s) at education providers in the health sector or the nearest teaching hospital which has the competency to conduct the said training, (iii) suspension of the health personnel’s registration certificate (Surat Tanda Registrasi), and/or (iv) a recommendation of practice license (Surat Ijin Praktek) revocation.
Following the decision of the panel of council, under the Health Law it is possible for a patient and/or the relevant health personnel to file a petition for reconsideration (Peninjauan Kembali), as long as any of the following conditions is met: (i) new evidence is discovered, (ii) misapplication of disciplinary violations, or (iii) there was an alleged conflict of interest between the examiner and the examinee.
♦ Obligation for Panel of Council to Issue Recommendation Letters to Examine Health Personnel Suspected of Criminal Actions
Health personnel who are suspected of committing criminal actions may be subject to criminal sanctions. In this regard, the Health Law requires a Civil Servant Investigator Officer or the Indonesian National Police Officer to submit a written request to the panel of council to conduct an investigation on certain suspected health personnel. The panel of council is obliged to issue a recommendation letter within 14 (fourteen) days following the receipt of such written request. The Health Law specifically provides that the recommendation letter issued by the panel of council must contain a written statement to state whether or not the investigation may be carried out, along with the consideration and the basis of the recommendation.
We also note that a recommendation letter issued by the panel of council is not only obligatory for commencing investigation towards any health personnel who are suspected for conducting criminal acts, but also for health personnel who are suspected of conducting civil violations (e.g., causing damages or other material losses to the patients).
♦ Obligation for Health Personnel and Patients to Settle Amicably
In general, the Health Law recommends health personnel and patients to first attempt to settle any dispute amicably outside a court of law.
If the health personnel are suspected of carrying their profession in a manner that causes losses and damages to a patient, any dispute arising of that default shall first be settled through an alternative dispute resolution process outside a court of law.
We note that there are several distinctions in the provisions regarding dispute settlement between the Previous Health Law and the Health Law. The main differences of these two laws in this regard are: (i) the stipulations on the panel of council, (ii) the recommendation letters issued by the panel of council, and (iii) procedures of investigation which. These were not governed in the Previous Health Law.
We also note that the Health Law expressly stipulates that the provisions relating to dispute settlement between health personnel and patients as well as the panel of council, are to be further governed by a Government Regulation.
Accordingly, the implementation of the above provisions remains to be seen. We also anticipate that, considering the objections from the medical society with respect to certain provisions of the Health Law, it is possible the Health Law to be challenged by the medical society or other parties of interest to the Constitutional Court. We will monitor the development and will issue further updates as relevant.
September 18, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Raymont Travis (rtravis@aksetlaw.com), or Esther Christie E. Marpaung (emarpaung@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Health Information System
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023, on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including health information systems (the “System”).
As previously noted, the Health Law was issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health.
♦ Key Definitions
Before we discuss the System, it is important to note the following definitions provided in the Health Law:
- System is defined as systems that integrate various stages of processing, reporting, and use of necessary information to increase the effectiveness and efficiency of health administration and directing actions or decisions that are useful in supporting health development;
- National System is defined as a System that is managed by the ministry which carries out government affairs in the health sector that integrates and standardizes all Systems in supporting health development.
♦ General Information on the System
Pursuant to Article 345(2) of the Health Law, the System shall be carried out by the (i) the Central Government, (ii) Regional Governments, (iii) health services facilities, and (iv) public community, whether an individual or an organization (collectively be referred to as the “Organizer”).
In this regard, Article 345(3) of the Health Law stipulates that the Organizer must integrate the System with the National System.
♦ Health Information Governance
Articles 346(3) and (4) of the Health Law provide that health information governance shall be carried out in accordance with the architecture of the System designed by the Minister of Health.
Based on Article 346(6) of the Health Law, the Organizer must conduct the data processing and health information in Indonesia. Article 347(1) of the Health Law stipulates that the Organizer is required to ensure the reliability of the System, which covers the (i) availability, (ii) security, (iii) maintenance, and (iv) integration.
Furthermore, Article 347(2) of the Health Law provides that the reliability of the System shall be conducted by way of (i) suitability of the system testing, (ii) maintaining the confidentiality of the data, (iii) determining data access rights policies, (iv) owning the system reliability certification, and (v) conducting regular audit.
In addition, Article 348(2) of the Health Law provides that the public shall be able to access public data and/or their own health data via the Organizer of a System that is integrated into the National System in accordance with the provisions of the prevailing laws and regulations.
Further, the Organizer must conduct the data processing and health information, which covers (i) planning, (ii) collection, (iii) storage, (iv) examination, (v) transfer, (vi) utilization, and (vii) demolishment.
According to Article 350(1) of the Health Law, the System shall contain data and information from (i) health services facilities, (ii) the Central Government and Regional Government Agencies, (iii) social security agencies, (iv) other agencies that engage in the health sector, (v) public community activities other than health service facilities, (vi) individual self-reporting, and (vii) other sources.
Article 351(1) of the Health Law provides that the Organizer of the System must ensure the data protection and health information of every individual.
Further, Article 351(2) of the Health Law stipulates that the data processing and health information that uses the health data of an individual must obtain an approval from the data owner and/or fulfill other provisions as the basis of the personal data processing in accordance with the prevailing laws and regulation in the personal data protection sector. This refers to Law No. 27 of 2022 on Personal Data Protection. Please click the following link for our newsflash on the Personal Data Protection Law: The Highly-Awaited Indonesian Personal Data Protection Law Is Passed.
An owner of the data is entitled to (i) obtain information with respect to the purpose of the collection of individual health data, (ii) access and rectify the data and information through the Organizer, (iii) request the Organizer to send his/her data to other Organizer, (iv) obtain the rights of other personal data subjects in accordance with the provisions of laws and regulations invitation in the field of personal data protection.
As mandated by Article 456 of the Health Law, all of the implementing regulations of the Health Law (including the ones relating to Systems) shall be issued at the latest 1 (one) year from the enactment of the Health Law.
September 14, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Radiansyah S. Yamin (ryamin@aksetlaw.com), and M. Raehan A. Fadila (mfadila@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Health Information System
Health Omnibus Law Series – Utilization of Indonesian and Foreign Medical and Health Personnels
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including utilization of local and foreign health personnel.
As previously noted, the Health Law is issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including (i) Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”), and (ii) Law No. 36 of 2014 dated October 17, 2014 on Health Personnel (the “Health Personnel Law”).
We highlight the main changes pertaining to the utilization of Indonesian and Foreign Medical Personnel and Health Personnel as follows.
♦ Rights and Obligations of Medical and Health Personnel
Prior to the Health Law, provisions relating to the rights and obligations of Medical Personnel and Health Personnel were insufficient and governed under certain implementing regulations of the Previous Health Law. Under the Health Law, the rights of Medical Personnel and Health Personnel are as follows: (i) to receive legal protection as long as they carry out the duties in accordance with professional standards, service standards, standard operating procedures, and professional ethics, as well as needs of a patient’s health, (ii) to receive complete and correct information from the patient or his/her family, (iii) to receive adequate salary/wages, compensation for services, and performance allowances in accordance with applicable laws and regulations, (iv) to receive protection for safety, occupational health, and security, (v) to receive health insurance and employment insurance in accordance with the applicable laws and regulations, (vi) to receive protection from treatment that is contrary to human dignity, morals, decency, and socio-cultural values (including acts of violence, harassment, and bullying), (vii) to receive an award in accordance with the applicable laws and regulations, (viii) to receive opportunity to develop themselves through competency development, knowledge, and career in his/her profession, (ix) to reject the wishes of the patient or other parties that are contrary to professional standards, service standards, standard operating procedures, the code of ethics, or applicable laws and regulations, and (x) to have other rights in accordance with the applicable laws and regulations.
On the other hand, in practicing medicine, the Medical Personnel and Health Personnel shall carry out the following obligations: (i) to provide health services in accordance with professional standards, service standards, standard operational procedures, and professional ethics as well as patient’s health needs; (ii) to obtain an approval from a patient or his/her family for any action to be administered, (iii) too keep a patient’s health confidential, (iv) to prepare and maintain records and/or documents regarding examinations, care, and actions taken, and (v) to refer patients to the Medical Personnel or Health Personnel who have the competence and appropriate authority.
We note that the Health Law expressly stipulates that provisions on the majority of matters governed under the Health Law are to be further governed in Presidential Regulations, Government Regulations, and Minister of Health Regulations. Having said this, the implementation of the Health Law, particularly on the eligibility of foreign medical professionals to practice in Indonesia, remains to be seen. We also anticipate that, considering the objections from certain medical society, there is a possibility for the Health Law to be challenged by the medical society or other parties of interest through the Constitutional Court or Mahkamah Konstitusi.
♦ Eligibility for Indonesian and Foreign Overseas Graduate Medical Personnel and Health Personnel to Practice in Indonesia
The Health Law introduces the eligibility for Indonesian and foreign overseas graduate Medical Personnel or Tenaga Medis (e.g., doctors and dentists) and Health Personnel or Tenaga Kesehatan (e.g., nurses) to practice in Indonesia by fulfilling certain requirements and obtaining certain licenses.
The Health Law stipulates that in order to practice in Indonesia, Indonesian overseas graduate Medical Personnel and Health Personnel are subject to a competency evaluation (i.e., administrative completeness and practice capability assessments) by the Ministry of Health (the “MOH”). Such Medical Personnel and Health Personnel shall then participate in an adaptation program at a Health Service Facility or Fasilitas Pelayanan Kesehatan by firstly obtaining a Registration Certificate (Surat Tanda Registrasi or an “STR”) and a Practice License (Surat Izin Praktik or an “SIP”).
Similarly, foreign overseas graduate Medical Personnel and Health Personnel who intend to practice in Indonesia are subject to a competency evaluation. However, this only applies to specialist and sub-specialist Medical Personnel and Health Personnel with a certain competency level. Such Medical Personnel and Health Personnel shall also participate in an adaptation program by firstly obtaining an STR and an SIP.
One important note is that the Health Law exempts the above requirements to which the overseas graduate Medical Personnel and Health Personnel shall be allowed to practice in Indonesia provided that they (i) graduate from a recognized medical school and have a minimum of 2 (two) years of practice experience abroad (applicable for Indonesian overseas graduates) or 5 (five) years of specialized or sub-specialized or Health Personnel with a certain competency level practice experience abroad, evidenced by a document issued by an authorized institution in the relevant country (applicable for foreign overseas graduate), or (ii) are experts in a certain specific advanced field in medical services, evidenced by a competency certificate, and specifically for foreign overseas graduates, have practiced at least 5 (five) years abroad.
Further, foreign overseas graduate Medical Personnel (specialists and sub-specialists) and Health Personnel (with certain competency level) may practice in Indonesia for so long that the following requirements are fulfilled (i) there is a request from a Health Service Facility based on its needs, (ii) for the purpose of transfer of technology and knowledge, and (iii) for a maximum period of 2 (two) years and may be extended once for the next 2 (two) years.
We understand that with the above provisions the Government intends to address Indonesia’s shortage of doctors and improve the quality of health services, despite concerns from the medical society that the above provisions may impact the availability of job vacancies for Indonesian Medical Personnel and Health Personnel.
Eligibility for Foreign Domestic Graduate Medical Personnel and Health Personnel to Practice in Indonesia The Health Law provides that foreign Medical Personnel and Health Personnel that are domestic graduates may also practice in Indonesia by firstly obtaining an STR and an SIP in accordance with applicable laws and regulations. However, such Medical Personnel and Health Personnel may only practice in Indonesia based on the request of a Health Service Facility for a certain period of time.
September 11, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas Peter Wijaya (twijaya@aksetlaw.com), Datanya N. Kalula (dkalula@aksetlaw.com), or M. Fatih Satria Kasmaliputra (mkasmaliputra@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
2023 Electricity Regulation - Indonesia
Reproduced with permission from Law Business Research Ltd. This article was first published in Lexology Getting the Deal Through – Electricity 2023 (Published: August 2023). For further information please visit www.gettingthedealthrough.com
Authors From AKSET: Arfidea Dwi Saraswati, Andi Manggoana Wira Tenri, and Mochamad Fatih Satria Kasmaliputra
2023 Electricity Regulation - Indonesia
Health Omnibus Law Series – Stipulation on Telemedicine Services
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including Telemedicine services as part of the services of a Health Service Facility.
As previously noted, the Health Law is issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”).
Under the Previous Health Law, there were no provisions relating to Telemedicine services. Before the Health Law, Telemedicine services were regulated by the Minister of Health (the “MOH”) Regulation No. 20 of 2019 on the Organization of Telemedicine Services between Health Service Facilities (“Regulation 20/2019”).
With the issuance of the Health Law, Telemedicine services are now governed in a law rather than only in a Ministerial regulation.
Below, we set out the salient provisions of Telemedicine services under the Health Law.
♦ Recognition of Telemedicine
The implementation of health efforts in the form of health services may use information and communication technology through Telehealth and Telemedicine which are integrated with the National Health Information System.
The Telehealth service consists of providing clinical and non-clinical services, in which the clinical services are provided through Telemedicine.
♦ Provider of Telemedicine Services
Telemedicine services may be provided by all Health Service Facilities, as follows:
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- First-level Health Service Facilities, consisting of Public Health Centers (Pusat Kesehatan Masyarakat or Puskesmas), Primary Clinics (Klinik Pratama), and Private Practice of Medical (Praktik Mandiri Tenaga Medis) or Health Care Personnel (Tenaga Kesehatan);
- Advanced Health Service Facilities, consisting of Hospitals, Principal Clinics (Klinik Utama), Health Centers (Balai Kesehatan), and Private Practice of Medical (Praktik Mandiri Tenaga Medis) or Health Care Personnel (Tenaga Kesehatan); and
- Supporting Health Service Facilities.
In providing Telemedicine services, Health Service Facilities may independently provide such Telemedicine services or cooperate with a registered electronic system provider in accordance with the applicable laws and regulations.
Telemedicine services consist of Telemedicine services (i) between Health Service Facilities and (ii) between Health Service Facilities and public. The Telemedicine services provided by the Health Service Facilities shall be conducted by medical or health care personnel who have the relevant practice licenses. Please see our Newsflash on Licensing of Medical and Health Care Personnel: Health Omnibus Law Series – Simplification of Registration and Practice License for Medical and Health Care Personnels.
Further provisions in relation to the implementation of Telemedicine services will be further governed in a Government Regulation (Peraturan Pemerintah). We note from the Health Law that all implementing regulations (including the ones relating to Telemedicine services) shall be issued at least 1 (one) year from the enactment of the Health Law.
As of now, the Government Regulation which will stipulate further Telemedicine services, has yet to be issued. We will issue a continuation of this Newsflash once the Government Regulation relating to Telemedicine services has been issued.
August 31, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Radiansyah S. Yamin (ryamin@aksetlaw.com), and Ammarsyarif G. Goenawan (agoenawan@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Stipulation on Telemedicine Services
New Provisions under Second Amendment to the Member of Board of Governors of BI Regulation on Foreign Exchange Traffic
On July 31, 2023, the Member of Board of Governors of Bank Indonesia (“BI”) issued a second amendment to the Member of Board of Governors Regulation No. 21/28/PADG/2019 on Monitoring of Foreign Exchange Traffic Activities (Lalu Lintas Devisa) by Banks and Customers through Member of Board of Governors Regulation No. 5 of 2023 (“Regulation 5/2023”). This regulation has been in force since August 1, 2023. Regulation 5/2023 amends several provisions of the earlier regulation in order to improve the effectiveness of foreign exchange traffic activities implementation, specifically in connection with the Export Proceeds (Devisa Hasil Ekspor/”DHE”) and Import Payments (Devisa Pembayaran Impor/”DPI”).
Regulation 5/2023 amends eight articles, elucidation of the articles, and Appendix II of the regulation concerning technical guidelines on foreign exchange flow activities by banks. We set out below the key provisions of Regulation 5/2023.
♦ Banks No Longer Required to Submit Export Transaction Details Reports, Supporting Document Submission List Reports, and Export Proceeds Supporting Documents to BI
As regulated in the previous regulation, banks were required to submit a foreign exchange flow report to BI which included a transaction report (laporan transaksi), a position report (laporan posisi), and a supporting report (laporan pendukung). However, specifically for supporting reports, Regulation 5/2023 removes the inclusion of export transaction details (rincian transaksi ekspor/RTE) report and Supporting Document Submission List (Daftar Penyampaian Dokumen Pendukung/DPDP) report. Further, Special Account for Export Proceeds of Natural Resources (Rekening Khusus Devisa Hasil Ekspor Sumber Daya Alam or the “Reksus DHE SDA”) position reports now shall include position changes (posisi perubahan) in addition to the original position and the final position of the Reksus DHE SDA and/or instruments for placement of the DHE funds.
Further, based on Regulation 5/2023, now banks are also no longer required to submit DHE supporting documents received from customers to BI.
♦ BI No Longer Required to Submit Supervision Reports on DHE SDA to Relevant Institutions
In relation to the above, Regulation 5/2023 revokes the reporting obligation by BI on supervision of customers who are exporters of SDA to the Minister of Finance, the Directorate General of Customs and Excise, and other relevant institutions as required under the previous regulation.
♦ Exemption of Reporting Obligation by Banks and Customers for Transactions Up to USD10,000 Includes Export-related Transactions
Under the previous regulation, there was a reporting obligation that had to be met by banks and customers for transactions up to USD 10,000 or its equivalent in any other currency. Such transactions had to be reported collectively and grouped based on certain information unless governed otherwise. Regulation 5/2023 further delineates such exemption to export-related transactions or other specifically specified transactions.
Pursuant to Appendix II of Regulation 5/2023, 11 SDA-related export activities (such as export of goods, operational leasing, financial leasing, etc.) shall not be reported collectively and shall be reported separately per transaction.
♦ Changes of Reporting Format to be Set Out under BI Reporting System and Changes in BI Correspondence Provision
Regulation 5/2023 stipulates that any change in the scope of the reports, report formats, and/or submission procedures shall be set out under BI’s reporting system. Moreover, Regulation 5/2023 sets out several changes in the correspondence provision between banks and BI, such as addresses and telephone numbers of BI.
♦ Amendment in Appendix II concerning Certain Conditions on Export-related Activities
Pursuant to Appendix II of Regulation 5/2023, 11 SDA-related export activities are subject to certain conditions, namely:
- for transactions above USD 10,000: must provide additional reporting information; and
- for transactions up to USD 10,000: must be reported separately.
August 30, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com) or Clara Anastasia So (canastasia@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Simplification of Registration and Practice License for Medical and Health Care Personnels
This Newsflash is a part of our Health Omnibus Law, i.e., Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). As noted in our previous Newsflashes, the Health Law is issued by way of the omnibus method and revokes several laws in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health.
The Health Law governs a wide range of topics in the health sector. This Newsflash focuses on key provisions relating to the simplification of registration and practice licenses for medical and health care personnel.
♦ Elaboration on Medical Personnel and Health Care Personnel
Prior to the enactment of the Health Law and the issuance of the Constitutional Court Decision No. 82/PUU-XIII/2015 dated December 14, 2016 (the “Decision”), the terms “medical personnel” and “health care personnel” could be used interchangeably since the previous regulatory regime did not specifically define the term “medical personnel” and before the issuance of the Decision, medical personnel were categorized under health care personnel.
As a background, under the General Elucidation of Law No. 29 of 2004 dated October 6, 2005 on Medical Practice as partially revoked by Law No. 36 of 2014 dated October 17, 2014 on Health Care Personnel (collectively, “Law 29/2004”), it could be interpreted that medical personnel consisted of doctors and dentists since they were personnel that were authorized to take medical actions on patients based on their relevant competence. Meanwhile, referring to Article 11(1) of Law No. 36 of 2014 dated October 17, 2014 on Health Care Personnel (“Law 36/2014”) before the issuance of the Decision, health care personnel consisted of medical personnel, clinical psychologists, nurses, midwives, pharmacists, public health workers, environmental health workers, nutritionists, physical therapists, medical technicians, biomedical engineering personnels, traditional health workers, and others. Therefore, this caused the public to interchangeably use those two terms.
After the issuance of the Decision, medical personnel were no longer included under health care personnel. However, the then-regulation did not provide a clear definition of the term “medical personnel”.
Now, with the enactment of the Health Law, these two terms (i.e., medical personnel and health care personnel) are now clearly distinguished and defined. Under the Health Law, medical personnel are persons who devote themselves to the health sector and possess a professional attitude, knowledge, and skills through education in the medical or dentistry profession which requires the authorization to conduct health attempts. Meanwhile, the definition of health care personnel is nearly identical, but their professional attitude, knowledge, and skills are obtained through a higher education (pendidikan tinggi), not through education in the medical or dentistry profession. Furthermore, Articles 198 and 199(1) of the Health Law elaborate that the term “medical personnel” covers doctors and dentists, including the specialists and subspecialists; while the term “health care personnel” covers the same types of personnel described under Law 36/2014 following the issuance of the Decision.
♦ Practice Licenses for Medical Personnel and Health Care Personnel
To be able to practice in the health services sector, medical and health care personnel are required to obtain a registration certificate (Surat Tanda Registrasi or an “STR”) and a practice license (Surat Izin Praktik or an “SIP”). Under the previous regime (i.e., Law 29/2004 and Law 36/2014), medical and health care personnels had to fulfill the following requirements to obtain an STR:
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- Possession of a medical or dentistry degree (for medical personnel) or a degree in health education (for health care personnel);
- a statement letter to state that the person had taken the profession’s oath;
- a certificate stating the person has sound mental and physical health;
- a competency or professional certificate; and
- a statement of compliance with the provisions of professional ethics.
The STR was issued by the relevant health council and was valid for five years.
In addition to the STR, the previous regime also stipulated that to obtain an SIP, medical and health care personnels had to satisfy the following conditions:
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- Possession of a valid STR;
- a place of practice; and
- a recommendation from the relevant professional organization.
An SIP was issued by the health officials of the regency/city where the practice was held and would be valid subject to the validity of the STR and whether the place of practice would still be in accordance with the SIP. Furthermore, Law 29/2004 limited medical personnel to conduct practice in a maximum of only three places based on its SIP.
With the enactment of the Health Law, the requirements for obtaining an STR and an SIP are simplified. Articles 260(3) and (4) of the Health Law regulate that the prerequisites for obtaining an STR are at least the following: (i) possession of a degree in health education and/or professional certificate; and (ii) a competency certificate. As such, the Health Law removes the prerequisite for an STR to obtain a statement letter providing a person has taken the profession’s oath and a certificate stating a person had sound mental and physical health.
As for obtaining an SIP, according to Article 264(1) of the Health Law, medical and health care personnel now must satisfy the following conditions: (i) owns the STR; and (ii) owns a place of practice. Therefore, removing the need to obtain a recommendation letter from the relevant professional organization.
Besides the simplification in obtaining an STR and an SIP, other notable changes introduced by the Health Law in relation to the STR and the SIP are: (i) an STR now does not have an expiry date, its validity shall end if the related personnel passes away, it is inactivated by the health council, or revoked based on a final and binding court decision; (ii) an SIP is now valid for five years; and (iii) the Health Law does not regulate a provision that limits a maximum of three places for a medical personnel’s place of practice based on its SIP.
Since the Health Law stipulates that further provisions of STR and SIP will be further regulated in a Government Regulation, we will monitor the development and will issue further updates as relevant.
August 30, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Adhitya Ramadhan (aramadhan@aksetlaw.com) or Ayu Nandini Prameswari (aprameswari@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.