(a) the MDO or insurer makes a payment in relation to a claim against or by a person (the practitioner); and

the claim relates to:

an incident that is covered by the IBNR indemnity scheme (see section 14); or

a series of related incidents that includes an incident that is covered by the scheme; and

the practitioner had, on 30 June 2002, incident-occurring based cover with the participating MDO for the incident that is covered by the IBNR indemnity scheme; and

if it is an MDO that makes the payment—the MDO makes the payment:

consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and

in the ordinary course of its business; and

if it is an insurer that makes the payment—the insurer makes the payment:

consistently with the terms of the insurance contract between the insurer and the practitioner; and

in the ordinary course of its business; and

the MDO or insurer applies to the Chief Executive Medicare for the IBNR indemnity in accordance with section 36.

subsections (5) and (6) of this section; and

subsection 15(3); and

sections 19 and 20.

Basis on which payment made

makes the payment; or

could have made the payment;

in relation to the claim in relation to the incident covered by the IBNR indemnity scheme on the basis of incident-occurring based cover the practitioner had with the participating MDO for the incident on 30 June 2002.

Payment by someone else

consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and

in the ordinary course of its business; and

on the basis of incident-occurring based cover the practitioner had with the participating MDO on 30 June 2002;

if the practitioner made a proper claim in relation to the incident.

(a) the MDO or insurer is liable to pay an amount in relation to a claim against or by a person (the practitioner); and

the claim relates to:

an incident that is covered by the IBNR indemnity scheme (see section 14); or

a series of related incidents that includes an incident that is covered by the scheme; and

the practitioner had, on 30 June 2002, incident-occurring based cover with the participating MDO for the incident that is covered by the IBNR indemnity scheme; and

the amount that the MDO or insurer is liable to pay is provable; and

if it is an MDO that is liable to pay the amount—the MDO could pay the amount:

consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and

in the ordinary course of its business;

if it were not a Chapter 5 body corporate; and

if it is an insurer that is liable to make the payment—the insurer could make the payment:

consistently with the terms of the insurance contract between the insurer and the practitioner; and

in the ordinary course of its business;

if it were not a Chapter 5 body corporate; and

the MDO or insurer applies to the Chief Executive Medicare for the IBNR indemnity in accordance with section 36.

subsections (5) and (6) of this section; and

sections 19 and 20.

Basis for liability to pay

consistently with its constitution and the indemnity arrangement between the participating MDO and the practitioner; and

in the ordinary course of its business; and

on the basis of incident-occurring based cover the practitioner had with the participating MDO on 30 June 2002;

if the practitioner made a proper claim in relation to the incident.

Indemnity to be paid on trust

an MDO or insurer makes, or is liable to make, a payment in relation to a claim against a person in relation to a series of related incidents; and

some, but not all, of the incidents occurred in the course of the provision of treatment to a public patient in a public hospital.

the payment is to be disregarded to the extent to which it relates to, or is reasonably attributable to, the incident or incidents that occurred in the course of the provision of treatment to a public patient in a public hospital; and

any amount that is paid or payable to the MDO or insurer in relation to the payment is to be disregarded to the extent to which it relates to, or is reasonably attributable to, the incident or incidents that occurred in the course of the provision of treatment to a public patient in a public hospital.

paid; or

payable and liquidated at the time the amount of the IBNR indemnity is worked out;

to the MDO or insurer in relation to the payment the MDO or insurer makes or is liable to make.

any high cost claim indemnity that is paid or payable to the MDO or insurer in relation to the payment the MDO or insurer makes or is liable to make; and

any amount that is paid or payable to the MDO or insurer because of a right to which the MDO or insurer is subrogated; and

the amount of any payment specified in the rules.

any amount that is paid or payable to the MDO or insurer by way of an insurer-to-insurer payment;

any amount that is paid or payable to the MDO or insurer by way of membership subscription or insurance premium;

any amount that is payable under this Division;

the amount of any payment specified in the rules.

Subdivision E—Recovery of amount paid to MDO or insurer after IBNR indemnity paid

an IBNR indemnity has been paid to the MDO or insurer in relation to a claim against or by a person in relation to an incident; and

an amount is paid to the MDO or insurer in relation to the payment the MDO or insurer made in relation to the incident; and

that amount was not taken into account in calculating the amount of the IBNR indemnity paid to the MDO or insurer; and

the amount is not an amount referred to in subsection 21(4); and

the Chief Executive Medicare gives the MDO or insurer a notice in relation to the amount under section 26.

by action by the Chief Executive Medicare against the MDO or insurer in a court of competent jurisdiction; or

by deduction from the amount of an indemnity scheme payment payable to the MDO or insurer; or

under section 42.

The total amount recovered must not exceed the amount to be repaid.

an IBNR indemnity is paid to an MDO or insurer in relation to a claim against or by a person in relation to an incident; and

an amount to which section 24 applies is paid to the MDO or insurer;

the MDO or insurer must notify the Chief Executive Medicare that the amount has been paid to the MDO or insurer.

be in writing; and

be given to the Chief Executive Medicare within 28 days after the day on which the amount is paid to the MDO or insurer.

the amount that is repayable to the Commonwealth; and

the day before which the amount must be repaid to the Commonwealth; and

the effect of section 27.

The day specified under paragraph (b) must be at least 28 days after the day on which the notice is given.

an MDO or insurer must repay an amount to the Commonwealth under section 24; and

the amount remains wholly or partly unpaid after it becomes due and payable;

the MDO or insurer is liable to pay a late payment penalty under this section.

at the rate specified in the rules; and

on the unpaid amount; and

for the period:

starting when the amount becomes due and payable; and

ending when the amount, and the penalty payable under this section in relation to the amount, have been paid in full.

making payments to MDOs and insurers of claim handling fees; and

making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise);

in respect of claims relating to incidents covered by the IBNR indemnity scheme (see section 14).

make provision for:

the conditions that must be satisfied for an amount to be payable to an MDO or insurer; and

the amount that is payable; and

the conditions that must be complied with by an MDO or insurer to which an amount is paid; and

other matters related to the making of payments, and the recovery of overpayments; and

provide that this Division applies with specified modifications in relation to a liability that relates to costs in relation to which an amount has been paid under regulations made for the purposes of this section; and

make provision for making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise), in respect of incidents notified to MDOs and insurers that could give rise to claims in relation to which an IBNR indemnity could be payable.

whether an MDO or insurer is entitled to a payment under regulations made for the purposes of section 27A; or

the amount that is payable to an MDO or insurer under regulations made for the purposes of section 27A;

the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information.

an MDO;

an insurer;

a member or former member of an MDO;

a person who practises, or used to practise, a medical profession;

a person who is acting, or has acted, on behalf of a person covered by paragraph (d);

a legal personal representative of a person covered by paragraph (c), (d) or (e).

must be made in writing; and

must state what information must be given to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify a day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request was made.

Subdivision G—IBNR exposure

states the Actuary’s assessment of the participating MDO’s IBNR exposure as at the end of the financial year; and

sets out the reasons for the assessment.

financial statements; and

a report prepared by a suitably qualified actuary assessing the participating MDO’s IBNR exposure as at the end of a financial year.

must be made in writing; and

must state what information the participating MDO is to give to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify the day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request is made.

$2 million; or

such other amount as is specified in the rules.

(a) a claim is, or was, made against a person (the practitioner); and

the claim relates to:

an incident that occurs or occurred; or

a series of related incidents that occur or occurred;

in the course of, or in connection with, the practitioner’s practice as a medical practitioner; and

either:

the incident occurs or occurred; or

one or more of the incidents in the series occurs or occurred;

in Australia or in an external Territory; and

the MDO or insurer is first notified of:

the incident; or

the claim; or

an eligible related claim;

between 1 January 2003 and the date specified in the rules as the termination date for the high cost claim indemnity scheme; and

the MDO or insurer has a qualifying payment in relation to the claim, or qualifying payments in relation to:

the claim; or

the claim and one or more eligible related claims; and

the amount of the qualifying payment, or the sum of the amounts of the qualifying payments, exceeds what was the high cost claim threshold at the earliest of the following times:

when the MDO or insurer was first notified of the incident;

when the MDO or insurer was first notified of the claim;

when the MDO or insurer was first notified of an eligible related claim; and

any other requirements (however described) that are specified in the rules have been met.

The claim referred to in paragraph (a) may be one that was made before, or is made after, the commencement of this Act and an incident referred to in paragraph (b) may be one that occurred before, or occurs after, the commencement of this Act.

the MDO or insurer:

pays an amount in relation to the claim; or

is liable to pay an amount in relation to a payment or payments that someone makes, or is liable to make, in relation to the claim under a written agreement between the parties to the claim; or

is liable to pay an amount in relation to a payment or payments that someone makes, or is liable to make, in relation to the claim under a judgment or order of a court that is not stayed and is not subject to appeal; or

is a Chapter 5 body corporate and is liable to pay a provable amount in relation to the claim; and

the MDO or insurer pays, or is liable to pay, the amount under an insurance contract or other indemnity arrangement between the MDO or insurer and the practitioner; and

the MDO or insurer:

pays, or becomes liable to pay, the amount in the ordinary course of the MDO’s or the insurer’s business; or

is a Chapter 5 body corporate and would be able to pay the amount in the ordinary course of the MDO’s or the insurer’s business if it were not a Chapter 5 body corporate.

an MDO pays, or is liable to pay, an amount in relation to a claim that relates to an incident or a series of incidents; and

(b) an insurer also pays, or is also liable to pay, an amount (the insurer amount) in relation to the same claim or in relation to an eligible related claim; and

but for this section, a high cost claim indemnity in respect of the insurer amount:

would be payable to the insurer under subsection 30(1); or

would be payable to the insurer under that subsection if paragraph 30(1)(f) were omitted; and

the insurer elects in writing to have this section apply to the insurer amount.

the MDO is taken:

to have paid, or to be liable to pay, the insurer amount in relation to the claim or eligible related claim; and

to satisfy paragraphs 30(1)(e) and (2)(a) to (c) in relation to the insurer amount; and

to have been notified of the incident, claim or eligible related claim when the insurer was first notified of the incident, claim or eligible related claim; and

a high cost claim indemnity is not payable to the insurer in respect of the insurer amount.

an MDO or insurer makes, or is liable to make, a payment in relation to a claim against a person in relation to a series of related incidents; and

some, but not all, of the incidents occurred in the course of the provision of treatment to a public patient in a public hospital.

50%; or

such other percentage as is specified in the rules;

of the amount by which the amount of the MDO’s or insurer’s qualifying payment, or the sum of the amounts of the MDO’s or insurer’s qualifying payments, exceeds the high cost claim threshold.

making payments to MDOs and insurers of claim handling fees; and

making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise);

in respect of claims relating to incidents in relation to which a high cost claim indemnity is payable (see section 30).

make provision for:

the conditions that must be satisfied for an amount to be payable to an MDO or insurer; and

the amount that is payable; and

the conditions that must be complied with by an MDO or insurer to which an amount is paid; and

other matters related to the making of payments, and the recovery of overpayments; and

provide that this Division applies with specified modifications in relation to a liability that relates to costs in relation to which an amount has been paid under regulations made for the purposes of this section; and

make provision for making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise), in respect of incidents notified to MDOs and insurers that could give rise to claims in relation to which a high cost claim indemnity could be payable.

whether an MDO or insurer is entitled to a payment under regulations made for the purposes of section 34AA; or

the amount that is payable to an MDO or insurer under regulations made for the purposes of section 34AA;

the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information.

an MDO;

an insurer;

a member or former member of an MDO;

a person who practises, or used to practise, a medical profession;

a person who is acting, or has acted, on behalf of a person covered by paragraph (d);

a legal personal representative of a person covered by paragraph (c), (d) or (e).

must be made in writing; and

must state what information must be given to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify a day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request was made.

the liability relates to a claim against the person in relation to an incident that occurs in the course of, or in connection with, the person’s practice as a medical practitioner, being a claim that has been certified as a qualifying claim; and

the liability exceeds the amount payable under an insurance contract that has a contract limit satisfying the relevant threshold.

(a) the claim is a claim that is or was made against a person (the practitioner); and

the claim relates to:

an incident that occurs or occurred; or

a series of related incidents that occur or occurred;

in the course of, or in connection with, the practitioner’s practice as a medical practitioner; and

except in the circumstances specified in rules made for the purposes of this paragraph, either:

the incident occurs or occurred; or

one or more of the incidents in the series occurs or occurred;

in Australia or an external Territory; and

the incident did not occur, or the incidents did not all occur, in the course of the provision of treatment to a public patient in a public hospital; and

there is a contract of insurance in relation to which the following requirements are satisfied:

the contract provides medical indemnity cover for the practitioner in relation to the claim, or would, but for the practitioner’s contract limit, provide such cover for the practitioner in relation to the claim;

the practitioner’s contract limit equals or exceeds the relevant threshold (see section 34F);

(iii) the insurer is a general insurer, within the meaning of the Insurance Act 1973;

the insurer entered into the contract in the ordinary course of the insurer’s business; and

the insurer was first notified of the claim, or of facts that might give rise to the claim, on or after 1 January 2003; and

if a termination date for the exceptional claims indemnity scheme is set (see section 34G), the incident, or one or more of the incidents, to which the claim relates occurred before the exceptional claims termination date; and

the claim is not a claim specified in rules made for the purposes of this paragraph; and

the contract of insurance is not a contract specified in rules made for the purposes of this paragraph; and

a person has applied for the certificate in accordance with section 34H.

Certain eligible run-off claims may relate to treatment of public patients in public hospitals

the claim relates to an incident that occurred, or a series of incidents that occurred, before 1 July 2003; and

at the time the incident, or one or more of the incidents, occurred, there was an arrangement with an MDO under which the MDO would have been able to indemnify the practitioner in relation to the incident or series of incidents if the claim had been made while the arrangement had effect; and

at the time the claim is made, a contract of insurance with a medical indemnity insurer provides medical indemnity cover for the practitioner; and

(d) the medical indemnity cover is provided under an arrangement of a kind referred to in paragraph 26B(1)(f) of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003; and

the medical indemnity cover satisfies all of the requirements of subsection 26A(4) of that Act.

When a certificate is in force

identify:

the practitioner; and

the claim; and

the contract of insurance in relation to which paragraph (1)(e) is satisfied; and

specify the relevant threshold.

The certificate may also contain other material.

ART review of decision to refuse

if the insurer was first notified of the claim, or of facts that might give rise to the claim, on or after 1 January 2003 and before 1 July 2003—$15 million; or

if the insurer is or was first notified of the claim, or of facts that might give rise to the claim, on or after 1 July 2003—$20 million, or such other amount as is specified in the rules as the threshold.

Threshold specified in rules only applies to contracts entered into after the rules commence

be made in writing using a form approved by the Chief Executive Medicare; and

be accompanied by the documents and other information required by the form approved by the Chief Executive Medicare.

the Chief Executive Medicare requests the person who applied for the certificate to give information under section 38 in relation to the application; and

the person does not give the information to the Chief Executive Medicare by the end of the day specified in the request.

a qualifying claim certificate is in force in relation to a claim; and

a person becomes aware that the information provided to the Chief Executive Medicare in connection with the application for the certificate was incorrect or incomplete, or is no longer correct or complete; and

the person is:

the person who applied for the certificate; or

another person who has applied for a payment of exceptional claims indemnity, or for a payment under regulations made for the purposes of section 34X (exceptional claims payments), in relation to the claim;

the person must notify the Chief Executive Medicare of the respect in which the information was incorrect or incomplete, or is no longer correct or complete.

be made in writing; and

be given to the Chief Executive Medicare within 28 days after the person becomes aware as mentioned in subsection (1).

the making of rules for the purpose of paragraph 34E(1)(h) or (i); or

changes to the terms and conditions of the contract of insurance identified in the certificate.

Variation

the Chief Executive Medicare revokes a qualifying claim certificate; and

an amount of exceptional claims indemnity has already been paid in relation to the claim;

the amount is an amount overpaid to which section 41 applies.

Effect of variation

the Chief Executive Medicare varies a qualifying claim certificate; and

an amount of exceptional claims indemnity has already been paid in relation to the claim, and that amount exceeds the amount that would have been paid if the amount of indemnity had been determined having regard to the certificate as varied;

the amount of the excess is an amount overpaid to which section 41 applies.

ART review of decision to revoke or vary

(a) a claim for compensation or damages (the current claim) is, or was, made against the practitioner by another person; and

a qualifying claim certificate is in force in relation to the current claim; and

the liability is a qualifying liability of the practitioner in relation to the current claim (see section 34M); and

because of the practitioner’s contract limit in relation to the contract of insurance identified in the qualifying claim certificate, the contract does not cover, or does not fully cover, the liability; and

the amount that, if the practitioner’s contract limit had been high enough to cover the whole of the liability, the insurer would (subject to the other terms and conditions of the contract) have been liable to pay under the contract of insurance in relation to the liability exceeds the actual amount (if any) that the insurer has paid or is liable to pay under the contract in relation to the liability; and

the aggregate of:

the amount (if any) the insurer has paid, or is liable to pay, in relation to the liability under the contract of insurance; and

the other amounts (if any) that the insurer has already paid, or has already become liable to pay, under the contract in relation to the current claim; and

the amounts (if any) that the insurer has already paid, or has already become liable to pay, under the contract in relation to other claims against the practitioner (being other claims that were first notified to the insurer no later than the time the current claim was notified to the insurer);

equals or exceeds the relevant threshold identified in the qualifying claim certificate; and

a person has applied for the indemnity in accordance with section 37A.

if there are deductibles—see section 8B; or

if a high cost claim indemnity or a run-off cover indemnity is paid or payable—see section 34D; or

if the insurer is a Chapter 5 body corporate—see subsection (4); or

if the claim relates to a series of incidents some, but not all, of which occurred in the course of the provision of treatment to a public patient in a public hospital—see section 34N; or

if the claim relates to a series of incidents some, but not all, of which occurred after the exceptional claims termination date—see section 34O.

Who the indemnity is payable to

a reference in paragraphs (1)(e) and (f) to an amount that the insurer is liable to pay under a contract of insurance is a reference to an amount that the insurer is liable to pay under the contract and that is a provable amount; and

a reference in subsection (3) to an amount that an insurer is liable to pay in the ordinary course of the insurer’s business is a reference to an amount that the insurer is liable to pay, and would be able to pay in the ordinary course of the insurer’s business if it were not a Chapter 5 body corporate.

ART review of decision to refuse, or to pay a particular amount of indemnity

apply so much of the indemnity as equals the undischarged amount of the liability towards the discharge of the liability; and

if the recipient is not the practitioner—deal with the balance of the indemnity in accordance with the directions of the practitioner.

Time by which recipient must comply with obligation

by the time specified in a written direction (whether contained in the payment notice or otherwise) given to the recipient by the Chief Executive Medicare; or

if no such direction is given to the recipient—as soon as practicable after the indemnity is received by the recipient.

To avoid doubt, the Chief Executive Medicare may vary a direction under paragraph (a) to specify a different time.

Debt to Commonwealth if recipient does not comply with obligation on time

by action by the Chief Executive Medicare against the recipient in a court of competent jurisdiction; or

under section 42.

if the indemnity has not yet been dealt with in accordance with whichever of subsections 34Q(3) and (4) applies—the recipient referred to in subsection 34Q(1); or

if the indemnity has been dealt with in accordance with whichever of those subsections applies—the practitioner referred to in subsection 34Q(1).

the recipient and the practitioner referred to in subsection 34Q(1) are not the same person; and

when the overpayment is recovered as a debt, the liable person is the recipient;

the fact that the recipient may later deal with the remainder of the indemnity in accordance with subsection 34Q(3) or (4) does not mean that the overpayment should instead have been recovered from the practitioner.

Subdivision D—Payments that would have reduced the amount paid out under the contract of insurance

(a) an amount (the insurance payment) has been paid under a contract of insurance that provides medical indemnity cover for a person (the practitioner) in relation to a liability of the practitioner; and

another amount (not being an amount referred to in subsection (2)) has been paid to the practitioner, the insurer or another person in relation to the incident or incidents to which the liability relates; and

the other amount was not taken into account in working out the amount of the insurance payment; and

if the other amount had been taken into account in working out the amount of the insurance payment, a lesser amount would have been paid under the contract of insurance in relation to the liability;

then, for the purpose of calculating the amount of exceptional claims indemnity (if any) that is payable in relation to a liability of the practitioner, the lesser amount is taken to have been the amount of the insurance payment.

an amount paid to an insurer by another insurer under a right of contribution;

a payment of high cost claim indemnity;

a payment of run-off cover indemnity;

an amount of a kind specified in the rules for the purposes of this paragraph.

(a) an amount (the actual indemnity amount) of exceptional claims indemnity has been paid in relation to a qualifying liability that relates to a claim made against a person (the practitioner); and

another amount (not being an amount referred to in subsection (5)) is paid to the practitioner, an insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

the other amount was not taken into account in calculating the actual indemnity amount; and

(d) if the other amount had been so taken into account, a lesser amount (the reduced indemnity amount, which could be zero) of exceptional claims indemnity would have been paid in relation to the liability.

the recipient and the practitioner referred to in subsection 34Q(1) are not the same person; and

the practitioner becomes the liable person;

then (subject to subsection 34R(3)), the recipient ceases to be the liable person, and the amount overpaid must instead be recovered from the practitioner.

by action by the Chief Executive Medicare against the liable person in a court of competent jurisdiction; or

under section 42.

an amount paid to an insurer by another insurer under a right of contribution;

a payment of high cost claim indemnity;

a payment of run-off cover indemnity;

an amount of a kind specified in the rules for the purposes of this paragraph.

(a) an amount of exceptional claims indemnity has been paid in relation to a qualifying liability that relates to a claim made against a person (the practitioner); and

(b) the person (the applicant) who applied for the exceptional claims indemnity becomes aware that another amount has been paid to the practitioner, an insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

because of the payment of the other amount, there is an amount overpaid as described in subsection 34T(2);

the applicant must notify the Chief Executive Medicare that the other amount has been paid.

be in writing; and

be given to the Chief Executive Medicare within 28 days after the applicant becomes aware that the other amount has been paid.

(a) an amount of exceptional claims indemnity has been paid in relation to a qualifying liability that relates to a claim made against a person (the practitioner); and

another amount is paid to the practitioner, an insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

because of the payment of the other amount, there is an amount overpaid as described in subsection 34T(2);

the Chief Executive Medicare may give the liable person (see subsection 34R(2)) a written notice that specifies:

the amount overpaid, and that it is a debt owed to the Commonwealth under subsection 34T(3); and

the day before which the amount must be paid to the Commonwealth; and

the effect of section 34W.

The day specified under paragraph (e) must be at least 28 days after the day on which the notice is given.

a person owes a debt to the Commonwealth under subsection 34T(3); and

the debt remains wholly or partly unpaid after it becomes due and payable;

the person is liable to pay a late payment penalty under this section.

at the rate specified in the rules for the purposes of this paragraph; and

on the unpaid amount; and

for the period:

starting when the amount becomes due and payable; and

(ii) ending when the amount, and the penalty payable under this section in relation to the amount, have been paid in full.

the recipient and the practitioner referred to in subsection 34Q(1) are not the same person; and

the practitioner becomes the liable person; and

the recipient has or had a liability under this section to pay late payment penalty;

the recipient’s liability to the late payment penalty is not affected by the fact that the recipient is no longer the person who owes the debt to the Commonwealth under subsection 34T(3), except that the period referred to in paragraph (2)(c) ends when the practitioner becomes the liable person.

Subdivision E—Regulations may provide for payments

make provision for:

the conditions that must be satisfied for an amount to be payable to an insurer; and

the amount that is payable; and

the conditions that must be complied with by an insurer to which an amount is paid; and

other matters related to the making of payments, and the recovery of overpayments; and

provide that this Division applies with specified modifications in relation to a liability that relates to costs in relation to which an amount has been paid under regulations made for the purposes of this section; and

make provision for making payments on account of legal, administrative or other costs incurred by insurers (whether on their own behalf or otherwise), in respect of incidents notified to insurers that could give rise to claims in relation to which an exceptional claims indemnity could be payable.

whether an insurer is entitled to a payment under regulations made for the purposes of section 34X; or

the amount that is payable to an insurer under regulations made for the purposes of section 34X;

the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information.

an MDO;

an insurer;

a member, or former member of an MDO;

a person who practises, or used to practise, a medical profession;

a person who is acting, or has acted, on behalf of a person covered by paragraph (d);

a legal personal representative of a person covered by paragraph (c), (d) or (e).

must be made in writing; and

must state what information must be given to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify a day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request was made.

Subdivision F—Miscellaneous

a specified class of claims; or

a specified class of contracts of insurance; or

a specified class of situations in which a liability is, whether wholly or partly, covered by more than one contract of insurance.

to count the liability as a qualifying liability (even though subparagraph 34M(a)(i) may not be satisfied in relation to the order); and

to deal with what happens if, as a result of the appeal or another appeal, the amount paid later becomes wholly or partly repayable; and

to deal with what happens if the amount paid is later applied towards a liability that is confirmed as a result of the appeal or another appeal.

it is a claim made against a person who, at the time the claim is made, is a person to whom subsection (2) applies; and

it relates to an incident, or a series of related incidents, that occurred in the course of, or in connection with, the person’s practice as a medical practitioner; and

if a termination date for the run-off cover indemnity scheme has been set (see subsection (3)), the person:

was, immediately before the termination date, a person to whom subsection (2) applies; and

continued to be such a person for the whole of the period between the termination date and the time when an MDO or insurer was first notified of the claim, or of facts that might give rise to the claim; and

the person has medical indemnity cover that indemnifies the person in relation to the claim, being cover that:

(i) is required to be provided under Medical Indemnity (Prudential Supervision and Product Standards) Act 2003; orDivision 2A of Part 3 of the

is incident-occurring based cover provided by an MDO.

a person who has retired permanently from private medical practice;

a person who has not engaged in private medical practice at any time during the preceding period of 3 years;

a person who has ceased (temporarily or permanently) the person’s practice as a medical practitioner because of maternity (see subsection (4A));

a person who has ceased the person’s practice as a medical practitioner because of permanent disability (see subsection (4B));

a person who is the legal personal representative of a deceased person who had been a medical practitioner;

a person who is included in a class of persons that the rules specify as persons to whom this subsection applies.

However, a person is not a person to whom this subsection applies if the person is included in a class of persons that the rules specify as a class of persons to whom this subsection does not apply.

the person:

is pregnant; or

has given birth; or

is recovering from a pregnancy (including a miscarriage or a stillbirth); and

another person who is a medical practitioner has certified, in the form approved by the Chief Executive Medicare, that the person is pregnant, has given birth or is recovering from a pregnancy, as the case requires; and

the person has ceased all practice as a medical practitioner:

because she is pregnant; or

in order to care for one or more children to whom she has given birth; or

in order to recover from the pregnancy; and

any other requirements specified in the rules have been met.

the person has incurred an injury, or suffers from an illness, that is permanent, or is likely to be permanent; and

as a result of the injury or illness, the person can no longer practise in the area of medicine in which he or she had (at the time of the injury or illness) chosen to practise and been qualified to practise; and

another person who is a medical practitioner has certified, in the form approved by the Chief Executive Medicare, that the person:

has incurred an injury, or suffers from an illness, that is permanent, or is likely to be permanent; and

can no longer practise in that area of medicine; and

the person has permanently ceased all practice as a medical practitioner.

an eligible run-off claim is made that relates to an incident, or a series of related incidents, that occurred in the course of, or in connection with, a person’s practice as a medical practitioner; and

at the time the claim is first notified to the MDO or medical indemnity insurer, the person is a person to whom subsection 34ZB(2) applies; and

in the case of an MDO—the MDO makes, or is able to make, a payment in relation to the claim:

under an arrangement, with the MDO or someone else, under which the MDO is able to indemnify the person in relation to claims made by or against the person while he or she is a person to whom subsection 34ZB(2) applies; and

in the ordinary course of the MDO’s business; and

in the case of a medical indemnity insurer—the insurer makes, or is liable to make, a payment in relation to the claim under a contract of insurance under which the insurer is liable to indemnify the person in relation to claims made by or against the person while he or she is a person to whom subsection 34ZB(2) applies; and

the MDO or medical indemnity insurer was first notified of the claim, or of facts that might give rise to the claim on or after 1 July 2004; and

the MDO or medical indemnity insurer applies to the Chief Executive Medicare for the run-off cover indemnity in accordance with section 36.

(a) in relation to a claim made in relation to medical indemnity cover that Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 requires the insurer to provide for the person; andsection 26A or 26C of the

in the insurer’s ordinary course of business.

the reference in paragraph 34ZC(1)(b) to a payment that the MDO is able to make under an arrangement to indemnify a person is a reference to an amount that:

the MDO is liable to make under the arrangement to indemnify the person; and

is a provable amount; and

the reference in that paragraph to a payment that the MDO is able to make in the ordinary course of the MDO’s business is a reference to an amount that the MDO:

is liable to pay; and

would be able to pay in the ordinary course of the MDO’s business if it were not a Chapter 5 body corporate.

the medical indemnity insurer pays or is liable to pay under the contract to indemnify the person; and

is a provable amount.

an MDO pays, or is liable to pay, an amount in relation to a claim; and

(b) a medical indemnity insurer also pays, or is also liable to pay, an amount in relation to the same claim (the insurer amount); and

but for this section, a run-off cover indemnity in respect of the insurer amount would be payable to the insurer under section 34ZC; and

the medical indemnity insurer elects in writing to have this section apply to the insurer amount.

the MDO is taken:

to have paid, or to be liable to pay, the insurer amount in relation to the claim; and

to satisfy paragraphs 34ZC(1)(a) to (e) in relation to the insurer amount; and

a run-off cover indemnity is not payable to the medical indemnity insurer in respect of the insurer amount.

if it is payable to an MDO—the amount of the payment referred to in paragraph 34ZC(1)(b); or

if it is payable to a medical indemnity insurer—the amount of the payment referred to in paragraph 34ZC(1)(c), but only to the extent that the payment is or would be made:

(i) in relation to a claim made in relation to medical indemnity cover that Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 requires the insurer to provide for a person; andsection 26A or 26C of the

in the insurer’s ordinary course of business.

(a) an amount (the indemnity payment) has been paid, in relation to a liability of a medical practitioner, under:

an arrangement with an MDO for indemnifying the practitioner in relation to claims that may be made against the practitioner in relation to incidents that occur or occurred in the course of, or in connection with, the practice of the practitioner’s profession; or

a contract of insurance with a medical indemnity insurer that provides medical indemnity cover for the practitioner; and

another amount (not being an amount referred to in subsection (2)) has been paid to the practitioner, MDO, medical indemnity insurer or another person in relation to the incident or incidents to which the liability relates; and

the other amount was not taken into account in working out the amount of the indemnity payment; and

if the other amount had been taken into account in working out the amount of the indemnity payment, a lesser amount would have been paid under the arrangement with the MDO, or under the contract of insurance, in relation to the liability;

then, for the purpose of calculating the amount of run-off cover indemnity (if any) that is payable in relation to a liability of the practitioner, the lesser amount is taken to have been the amount of the indemnity payment.

an amount paid to a medical indemnity insurer by another insurer under a right of contribution;

a payment of high cost claim indemnity;

a payment of exceptional claims indemnity;

an amount of a kind specified in the rules for the purposes of this paragraph.

(a) an amount (the actual run-off cover amount) of run-off cover indemnity has been paid in relation to an eligible run-off claim made against a medical practitioner; and

another amount (not being an amount referred to in subsection (5)) is paid to the practitioner, an MDO, a medical indemnity insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

the other amount was not taken into account in calculating the actual run-off cover amount; and

(d) if the other amount had been so taken into account, a lesser amount (the reduced run-off cover amount, which could be zero) of run-off cover indemnity would have been paid in relation to the liability.

by action by the Chief Executive Medicare against the MDO or insurer in a court of competent jurisdiction; or

under section 42.

an amount paid to an insurer by another insurer under a right of contribution;

a payment of high cost claim indemnity;

a payment of exceptional claims indemnity;

an amount of a kind specified in the rules for the purposes of this paragraph.

a run-off cover indemnity has been paid to an MDO or medical indemnity insurer in relation to a liability that relates to a claim made against a medical practitioner; and

the MDO or medical indemnity insurer becomes aware that another amount has been paid to the practitioner, MDO, medical indemnity insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

because of the payment of the other amount, there is an amount overpaid as described in subsection 34ZJ(2);

the MDO or medical indemnity insurer must notify the Chief Executive Medicare that the other amount has been paid.

be in writing; and

be given to the Chief Executive Medicare within 28 days after the applicant becomes aware that the other amount has been paid.

a run-off cover indemnity has been paid to an MDO or medical indemnity insurer in relation to a liability that relates to a claim made against a medical practitioner; and

another amount is paid to the practitioner, MDO, medical indemnity insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

because of the payment of the other amount, there is an amount overpaid as described in subsection 34ZJ(2);

the Chief Executive Medicare may give the MDO or medical indemnity insurer a written notice that specifies:

the amount overpaid, and that it is a debt owed to the Commonwealth under subsection 34ZJ(3); and

the day before which the amount must be paid to the Commonwealth; and

the effect of section 34ZM.

The day specified under paragraph (e) must be at least 28 days after the day on which the notice is given.

a person owes a debt to the Commonwealth under subsection 34ZJ(3); and

the debt remains wholly or partly unpaid after it becomes due and payable;

the person is liable to pay a late payment penalty under this section.

at the rate specified in the rules for the purposes of this paragraph; and

on the unpaid amount; and

for the period:

starting when the amount becomes due and payable; and

(ii) ending when the amount, and the penalty payable under this section in relation to the amount, have been paid in full.

making payments to MDOs and medical indemnity insurers of claim handling fees in respect of eligible run-off claims; and

making payments on account of legal, administrative or other costs incurred by MDOs and medical indemnity insurers (whether on their own behalf or otherwise) in respect of eligible run-off claims; and

(c) making payments on account of legal, administrative or other costs incurred by medical indemnity insurers (whether on their own behalf or otherwise) in respect of complying with Medical Indemnity (Prudential Supervision and Product Standards) Act 2003.Division 2A of Part 3 of the

make provision for:

the conditions that must be satisfied for an amount to be payable to an MDO or medical indemnity insurer; and

the amount that is payable; and

the conditions that must be complied with by an MDO or medical indemnity insurer to which an amount is paid; and

other matters related to the making of payments, and the recovery of overpayments; and

provide that this Division applies with specified modifications in relation to a liability that relates to costs in relation to which an amount has been paid under regulations made for the purposes of this section.

whether an MDO or medical indemnity insurer is entitled to a payment under regulations made for the purposes of section 34ZN; or

the amount that is payable to an MDO or medical indemnity insurer under regulations made for the purposes of section 34ZN;

the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information.

an MDO;

an insurer;

a member or former member of an MDO;

a person who practises, or used to practise, a medical profession;

a person who is acting, or has acted, on behalf of a person covered by paragraph (d);

a legal personal representative of a person covered by paragraph (c), (d) or (e).

must be made in writing; and

must state what information must be given to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify a day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request was made.

Subdivision E—Effect of terminating the run-off cover indemnity scheme

the rules provide that alternative arrangements for providing medical cover for medical practitioners in relation to eligible run-off claims will apply on and from the termination date; and

the rules made for the purposes of paragraph (a) commence on or before the termination date.

must be paid to a person who:

is nominated by the practitioner; and

has, on or after the termination date, provided medical indemnity cover for the practitioner under a contract of insurance; and

must be paid as all or part of the premium payable for the provision of that cover; and

must be paid within 12 months after the termination date; and

must not exceed the practitioner’s total run-off cover credit.

the practitioner’s run-off cover credit for the financial year; by

the interest rate adjustment for the financial year (see subsection (4)).

Step 2. For each subsequent financial year (if any) until the financial year in which the termination date occurs, multiply:

the sum of the practitioner’s run-off cover credit for the financial year and the amount worked out, under Step 1 or this Step, for the immediately preceding financial year; by

the interest rate adjustment for the financial year (see subsection (4)).

Step 3. Add together:

the practitioner’s run-off cover credit for the financial year in which the termination date occurs; and

the last of the amounts worked out under Step 1 or Step 2.

The result is the practitioner’s total run-off cover credit.

each medical practitioner to whom the payment is attributable; and

for each such practitioner, each financial year in relation to which the payment is attributable; and

for each such practitioner and financial year, the extent to which the payment is attributable to the practitioner in relation to the financial year.

be made in writing; and

be given to the Chief Executive Medicare on or before the day on which the run-off cover support payment becomes due and payable under section 61.

Subdivision F—Miscellaneous

a person ceases to be a person to whom subsection 34ZB(2) applies; and

(b) immediately before the cessation, an MDO or medical indemnity insurer was providing medical indemnity cover (within the meaning of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003) to the person;

the MDO or medical indemnity insurer must notify the Chief Executive Medicare of the cessation.

be in writing; and

set out details of the cessation; and

be given to the Chief Executive Medicare within a period, starting on the day after the day on which the person becomes aware of the cessation, of:

61 days; or

such greater number of days specified in the rules.

a medical indemnity insurer gives to a person an invoice stating the premium that is or will be payable for medical indemnity cover provided by a contract of insurance with the medical indemnity insurer; and

payment of the premium would increase the medical indemnity insurer’s liability to pay run-off cover support payment;

the medical indemnity insurer must ensure that the invoice states:

the amount of the medical indemnity insurer’s premium income, for the contribution year in question, that represents the premium that is or will be payable for medical indemnity cover provided by the contract of insurance; and

the applicable percentage relating to that contribution year; and

the amount of the run-off cover support payment imposed on the medical indemnity insurer, for that contribution year, that relates to the premium that is or will be payable for medical indemnity cover provided by the contract of insurance.

a statement of the number of persons who were, at the end of the financial year, persons to whom subsection 34ZB(2) applies; and

a statement of the total of all the amounts of run-off cover indemnity, and amounts payable under regulations made for the purposes of section 34ZN (run-off claims payments), paid by the Commonwealth during the financial year; and

a statement of the total of all the amounts of run-off cover support payments paid to the Commonwealth during the financial year; and

estimates by the Actuary of the Commonwealth’s liabilities under this Division in future financial years.

a specified class of claims; or

a specified class of arrangements with MDOs or contracts of insurance; or

a specified class of situations in which a liability is, whether wholly or partly, covered by more than one contract of insurance.

to deal with what happens if, as a result of the appeal or another appeal, the amount paid later becomes wholly or partly repayable; and

to deal with what happens if the amount paid is later applied towards a liability that is confirmed as a result of the appeal or another appeal.

$2 million; or

such other amount as is specified in the rules.

(a) a claim is, or was, made against a person (the practitioner); and

the claim relates to:

an incident that occurs or occurred; or

a series of related incidents that occur or occurred;

in the course of, or in connection with, the practice by the practitioner of an allied health profession; and

if the allied health profession is midwifery—the practitioner is not:

an eligible midwife for whom a contract of insurance with a midwife insurer provides midwife professional indemnity cover in relation to the claim; or

an eligible midwife who has a contract of insurance that names the eligible midwife as the only person to whom the insurance cover provided by the contract extends, and that indemnifies the eligible midwife (subject to the terms and conditions of the contract) in relation to claims that may be made against the eligible midwife in relation to incidents that occur or occurred in the course of, or in connection with, the practice by the eligible midwife of the profession of midwifery; and

either:

the incident occurs or occurred; or

one or more of the incidents in the series occurs or occurred;

in Australia or in an external Territory; and

either:

the incident occurs or occurred; or

all of the incidents in the series occur or occurred;

on or after 1 July 2020; and

the MDO or insurer is first notified of:

the incident; or

the claim; or

an eligible related claim;

on or before the date specified in the rules as the termination date for the allied health high cost claim indemnity scheme; and

the MDO or insurer has a qualifying allied health payment in relation to the claim, or qualifying allied health payments in relation to:

the claim; or

the claim and one or more eligible related claims; and

the amount of the qualifying allied health payment, or the sum of the amounts of the qualifying allied health payments, exceeds what was the allied health high cost claim threshold at the earliest of the following times:

when the MDO or insurer was first notified of the incident;

when the MDO or insurer was first notified of the claim;

when the MDO or insurer was first notified of an eligible related claim; and

a high cost claim indemnity is not payable in relation to the claim; and

any other requirements (however described) that are specified in the rules have been met.

the MDO or insurer:

pays an amount in relation to the claim; or

is liable to pay an amount in relation to a payment or payments that someone makes, or is liable to make, in relation to the claim under a written agreement between the parties to the claim; or

is liable to pay an amount in relation to a payment or payments that someone makes, or is liable to make, in relation to the claim under a judgment or order of a court that is not stayed and is not subject to appeal; or

is a Chapter 5 body corporate and is liable to pay a provable amount in relation to the claim; and

the MDO or insurer pays, or is liable to pay, the amount under an insurance contract or other indemnity arrangement between the MDO or insurer and the practitioner; and

the MDO or insurer:

pays, or becomes liable to pay, the amount in the ordinary course of the MDO’s or the insurer’s business; or

is a Chapter 5 body corporate and would be able to pay the amount in the ordinary course of the MDO’s or the insurer’s business if it were not a Chapter 5 body corporate.

an eligible MDO pays, or is liable to pay, an amount in relation to a claim that relates to an incident or a series of incidents; and

(b) an eligible insurer also pays, or is also liable to pay, an amount (the insurer amount) in relation to the same claim or in relation to an eligible related claim; and

but for this section, an allied health high cost claim indemnity in respect of the insurer amount:

would be payable to the insurer under subsection 34ZZB(1); or

would be payable to the insurer under that subsection if paragraph 34ZZB(1)(h) were omitted; and

the insurer elects in writing to have this section apply to the insurer amount.

the MDO is taken:

to have paid, or to be liable to pay, the insurer amount in relation to the claim or eligible related claim; and

to satisfy paragraphs 34ZZB(1)(g) and (4)(a) to (c) in relation to the insurer amount; and

to have been notified of the incident, claim or eligible related claim when the insurer was first notified of the incident, claim or eligible related claim; and

an allied health high cost claim indemnity is not payable to the insurer in respect of the insurer amount.

an MDO or insurer makes, or is liable to make, a payment in relation to a claim against a person in relation to a series of related incidents; and

some, but not all, of the incidents occurred in the course of the provision of treatment to a public patient in a public hospital.

50%; or

such other percentage as is specified in the rules;

of the amount by which the amount of the MDO’s or insurer’s qualifying allied health payment, or the sum of the amounts of the MDO’s or insurer’s qualifying allied health payments, exceeds the allied health high cost claim threshold.

making payments to eligible MDOs and eligible insurers of claim handling fees; and

making payments on account of legal, administrative or other costs incurred by eligible MDOs and eligible insurers (whether on their own behalf or otherwise);

in respect of claims relating to incidents in relation to which an allied health high cost claim indemnity is payable (see section 34ZZB).

make provision for:

the conditions that must be satisfied for an amount to be payable to an eligible MDO or eligible insurer; and

the amount that is payable; and

the conditions that must be complied with by an eligible MDO or eligible insurer to which an amount is paid; and

other matters related to the making of payments, and the recovery of overpayments; and

provide that this Division applies with specified modifications in relation to a liability that relates to costs in relation to which an amount has been paid under regulations made for the purposes of this section; and

make provision for making payments on account of legal, administrative or other costs incurred by eligible MDOs and eligible insurers (whether on their own behalf or otherwise), in respect of incidents notified to eligible MDOs and eligible insurers that could give rise to claims in relation to which an allied health high cost claim indemnity could be payable.

whether an MDO or insurer is entitled to a payment under regulations made for the purposes of section 34ZZG; or

the amount that is payable to an MDO or insurer under regulations made for the purposes of section 34ZZG;

the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information.

an eligible MDO;

an eligible insurer;

a member or former member of an eligible MDO;

a person who practises, or used to practise, an allied health profession;

a person who is acting, or has acted, on behalf of a person covered by paragraph (d);

a legal personal representative of a person covered by paragraph (c), (d) or (e).

must be made in writing; and

must state what information must be given to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify a day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request was made.

the liability relates to a claim against the person in relation to an incident that occurs in the course of, or in connection with, the practice by the person of an allied health profession, being a claim that has been certified as a qualifying allied health claim; and

the liability exceeds the amount payable under an insurance contract with an eligible insurer that has a contract limit satisfying the relevant allied health threshold.

(a) the claim is a claim that is or was made against a person (the practitioner); and

the claim relates to:

an incident that occurs or occurred; or

a series of related incidents that occur or occurred;

in the course of, or in connection with, the practice by the practitioner of an allied health profession; and

if the allied health profession is midwifery—the practitioner is not:

an eligible midwife for whom a contract of insurance with a midwife insurer provides midwife professional indemnity cover in relation to the claim; or

an eligible midwife who has a contract of insurance that names the eligible midwife as the only person to whom the insurance cover provided by the contract extends, and that indemnifies the eligible midwife (subject to the terms and conditions of the contract) in relation to claims that may be made against the eligible midwife in relation to incidents that occur or occurred in the course of, or in connection with, the practice by the eligible midwife of the profession of midwifery; and

except in the circumstances specified in rules made for the purposes of this paragraph, either:

the incident occurs or occurred; or

one or more of the incidents in the series occurs or occurred;

in Australia or an external Territory; and

either:

the incident occurs or occurred; or

all of the incidents in the series occur or occurred;

on or after 1 July 2020; and

the incident did not occur, or the incidents did not all occur, in the course of the provision of treatment to a public patient in a public hospital; and

there is a contract of insurance in relation to which the following requirements are satisfied:

the contract provides medical indemnity cover for the practitioner in relation to the claim, or would, but for the practitioner’s contract limit, provide such cover for the practitioner in relation to the claim;

the practitioner’s contract limit equals or exceeds the relevant allied health threshold (see section 34ZZL);

the insurer is an eligible insurer;

the insurer entered into the contract in the ordinary course of the insurer’s business; and

if a termination date for the allied health exceptional claims indemnity scheme is set (see section 34ZZM), the incident, or one or more of the incidents, to which the claim relates occurred before the allied health termination date; and

the claim is not a claim specified in rules made for the purposes of this paragraph; and

the contract of insurance is not a contract specified in rules made for the purposes of this paragraph; and

a person has applied for the certificate in accordance with section 34ZZN; and

the Chief Executive Medicare could not issue a qualifying claim certificate in relation to the claim if an application for the certificate were made in accordance with section 34H.

When a certificate is in force

identify:

the practitioner; and

the claim; and

the contract of insurance in relation to which paragraph (1)(g) is satisfied; and

specify the relevant allied health threshold.

The certificate may also contain other material.

ART review of decision to refuse

be made in writing using a form approved by the Chief Executive Medicare; and

be accompanied by the documents and other information required by the form approved by the Chief Executive Medicare.

the Chief Executive Medicare requests the person who applied for the certificate to give information under section 38 in relation to the application; and

the person does not give the information to the Chief Executive Medicare by the end of the day specified in the request.

a qualifying allied health claim certificate is in force in relation to a claim; and

a person becomes aware that the information provided to the Chief Executive Medicare in connection with the application for the certificate was incorrect or incomplete, or is no longer correct or complete; and

the person is:

the person who applied for the certificate; or

another person who has applied for a payment of allied health exceptional claims indemnity, or for a payment under regulations made for the purposes of section 34ZZZD (allied health exceptional claims payments), in relation to the claim;

the person must notify the Chief Executive Medicare of the respect in which the information was incorrect or incomplete, or is no longer correct or complete.

be made in writing; and

be given to the Chief Executive Medicare within 28 days after the person becomes aware as mentioned in subsection (1).

the making of rules for the purpose of paragraph 34ZZK(1)(i) or (j); or

changes to the terms and conditions of the contract of insurance identified in the certificate.

Variation

the Chief Executive Medicare revokes a qualifying allied health claim certificate; and

an amount of allied health exceptional claims indemnity has already been paid in relation to the claim;

the amount is an amount overpaid to which section 41 applies.

Effect of variation

the Chief Executive Medicare varies a qualifying allied health claim certificate; and

an amount of allied health exceptional claims indemnity has already been paid in relation to the claim, and that amount exceeds the amount that would have been paid if the amount of indemnity had been determined having regard to the certificate as varied;

the amount of the excess is an amount overpaid to which section 41 applies.

ART review of decision to revoke or vary

(a) a claim for compensation or damages (the current claim) is, or was, made against the practitioner by another person; and

a qualifying allied health claim certificate is in force in relation to the current claim; and

the liability is a qualifying allied health liability of the practitioner in relation to the current claim (see section 34ZZS); and

because of the practitioner’s contract limit in relation to the contract of insurance identified in the qualifying allied health claim certificate, the contract does not cover, or does not fully cover, the liability; and

the amount that, if the practitioner’s contract limit had been high enough to cover the whole of the liability, the insurer would (subject to the other terms and conditions of the contract) have been liable to pay under the contract of insurance in relation to the liability exceeds the actual amount (if any) that the insurer has paid or is liable to pay under the contract in relation to the liability; and

the aggregate of:

the amount (if any) the insurer has paid, or is liable to pay, in relation to the liability under the contract of insurance; and

the other amounts (if any) that the insurer has already paid, or has already become liable to pay, under the contract in relation to the current claim; and

the amounts (if any) that the insurer has already paid, or has already become liable to pay, under the contract in relation to any other claim against the practitioner that relates to an incident, or series of related incidents, covered by subsection (2) (being other claims that were first notified to the insurer no later than the time the current claim was notified to the insurer);

equals or exceeds the relevant allied health threshold identified in the qualifying allied health claim certificate; and

a person has applied for the indemnity in accordance with section 37A.

if there are deductibles—see section 8B; or

if an allied health high cost claim indemnity is paid or payable—see section 34ZZJ; or

if the insurer is a Chapter 5 body corporate—see subsection (6); or

if the claim relates to a series of incidents some, but not all, of which occurred in the course of the provision of treatment to a public patient in a public hospital—see section 34ZZT; or

if the claim relates to a series of incidents some, but not all, of which occurred after the allied health termination date—see section 34ZZU.

on or after 1 July 2020; and

in the course of, or in connection with:

practice by the practitioner of an allied health profession other than midwifery; or

practice by the practitioner of midwifery, unless the practitioner is an eligible midwife for whom a contract of insurance with a midwife insurer provides midwife professional indemnity cover in relation to the other claims, or an eligible midwife who has a contract of insurance that names the eligible midwife as the only person to whom the insurance cover provided by the contract extends, and that indemnifies the eligible midwife (subject to the terms and conditions of the contract) in relation to claims that may be made against the eligible midwife in relation to incidents that occur or occurred in the course of, or in connection with, the practice by the eligible midwife of the profession of midwifery.

Who the indemnity is payable to

a reference in paragraphs (1)(e) and (f) to an amount that the insurer is liable to pay under a contract of insurance is a reference to an amount that the insurer is liable to pay under the contract and that is a provable amount; and

a reference in subsection (5) to an amount that an insurer is liable to pay in the ordinary course of the insurer’s business is a reference to an amount that the insurer is liable to pay, and would be able to pay in the ordinary course of the insurer’s business if it were not a Chapter 5 body corporate.

ART review of decision to refuse, or to pay a particular amount of indemnity

a decision to refuse an application for allied health exceptional claims indemnity;

a decision to pay a particular amount of allied health exceptional claims indemnity.

apply so much of the indemnity as equals the undischarged amount of the liability towards the discharge of the liability; and

if the recipient is not the practitioner—deal with the balance of the indemnity in accordance with the directions of the practitioner.

Time by which recipient must comply with obligation

by the time specified in a written direction (whether contained in the payment notice or otherwise) given to the recipient by the Chief Executive Medicare; or

if no such direction is given to the recipient—as soon as practicable after the indemnity is received by the recipient.

To avoid doubt, the Chief Executive Medicare may vary a direction under paragraph (a) to specify a different time.

Debt to Commonwealth if recipient does not comply with obligation on time

by action by the Chief Executive Medicare against the recipient in a court of competent jurisdiction; or

under section 42.

if the indemnity has not yet been dealt with in accordance with whichever of subsections 34ZZW(3) and (4) applies—the recipient referred to in subsection 34ZZW(1); or

if the indemnity has been dealt with in accordance with whichever of those subsections applies—the practitioner referred to in subsection 34ZZW(1).

the recipient and the practitioner referred to in subsection 34ZZW(1) are not the same person; and

when the overpayment is recovered as a debt, the liable person is the recipient;

the fact that the recipient may later deal with the remainder of the indemnity in accordance with subsection 34ZZW(3) or (4) does not mean that the overpayment should instead have been recovered from the practitioner.

Subdivision D—Payments that would have reduced the amount paid out under the contract of insurance

(a) an amount (the insurance payment) has been paid under a contract of insurance that provides medical indemnity cover for a person (the practitioner) in relation to a liability of the practitioner; and

another amount (not being an amount referred to in subsection (2)) has been paid to the practitioner, the insurer or another person in relation to the incident or incidents to which the liability relates; and

the other amount was not taken into account in working out the amount of the insurance payment; and

if the other amount had been taken into account in working out the amount of the insurance payment, a lesser amount would have been paid under the contract of insurance in relation to the liability;

then, for the purpose of calculating the amount of allied health exceptional claims indemnity (if any) that is payable in relation to a liability of the practitioner, the lesser amount is taken to have been the amount of the insurance payment.

an amount paid to an insurer by another insurer under a right of contribution;

a payment of allied health high cost claim indemnity;

an amount of a kind specified in the rules for the purposes of this paragraph.

(a) an amount (the actual indemnity amount) of allied health exceptional claims indemnity has been paid in relation to a qualifying allied health liability that relates to a claim made against a person (the practitioner); and

another amount (not being an amount referred to in subsection (5)) is paid to the practitioner, an insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

the other amount was not taken into account in calculating the actual indemnity amount; and

(d) if the other amount had been so taken into account, a lesser amount (the reduced indemnity amount, which could be zero) of allied health exceptional claims indemnity would have been paid in relation to the liability.

the recipient and the practitioner referred to in subsection 34ZZW(1) are not the same person; and

the practitioner becomes the liable person;

then (subject to subsection 34ZZX(3)), the recipient ceases to be the liable person, and the amount overpaid must instead be recovered from the practitioner.

by action by the Chief Executive Medicare against the liable person in a court of competent jurisdiction; or

under section 42.

an amount paid to an insurer by another insurer under a right of contribution;

a payment of allied health high cost claim indemnity;

an amount of a kind specified in the rules for the purposes of this paragraph.

(a) an amount of allied health exceptional claims indemnity has been paid in relation to a qualifying allied health liability that relates to a claim made against a person (the practitioner); and

(b) the person (the applicant) who applied for the allied health exceptional claims indemnity becomes aware that another amount has been paid to the practitioner, an insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

because of the payment of the other amount, there is an amount overpaid as described in subsection 34ZZZ(2);

the applicant must notify the Chief Executive Medicare that the other amount has been paid.

be in writing; and

be given to the Chief Executive Medicare within 28 days after the applicant becomes aware that the other amount has been paid.

(a) an amount of allied health exceptional claims indemnity has been paid in relation to a qualifying allied health liability that relates to a claim made against a person (the practitioner); and

another amount is paid to the practitioner, an insurer or another person in relation to the incident or incidents to which the claim relates, or in relation to one or more other incidents; and

because of the payment of the other amount, there is an amount overpaid as described in subsection 34ZZZ(2);

the Chief Executive Medicare may give the liable person (see subsection 34ZZX(2)) a written notice that specifies:

the amount overpaid, and that it is a debt owed to the Commonwealth under subsection 34ZZZ(3); and

the day before which the amount must be paid to the Commonwealth; and

the effect of section 34ZZZC.

The day specified under paragraph (e) must be at least 28 days after the day on which the notice is given.

a person owes a debt to the Commonwealth under subsection 34ZZZ(3); and

the debt remains wholly or partly unpaid after it becomes due and payable;

the person is liable to pay a late payment penalty under this section.

at the rate specified in the rules for the purposes of this paragraph; and

on the unpaid amount; and

for the period:

starting when the amount becomes due and payable; and

ending when the amount, and the penalty payable under this section in relation to the amount, have been paid in full.

the recipient and the practitioner referred to in subsection 34ZZW(1) are not the same person; and

the practitioner becomes the liable person; and

the recipient has or had a liability under this section to pay late payment penalty;

the recipient’s liability to the late payment penalty is not affected by the fact that the recipient is no longer the person who owes the debt to the Commonwealth under subsection 34ZZZ(3), except that the period referred to in paragraph (2)(c) of this section ends when the practitioner becomes the liable person.

Subdivision E—Regulations may provide for payments

make provision for:

the conditions that must be satisfied for an amount to be payable to an eligible insurer; and

the amount that is payable; and

the conditions that must be complied with by an eligible insurer to which an amount is paid; and

other matters related to the making of payments, and the recovery of overpayments; and

provide that this Division applies with specified modifications in relation to a liability that relates to costs in relation to which an amount has been paid under regulations made for the purposes of this section; and

make provision for making payments on account of legal, administrative or other costs incurred by eligible insurers (whether on their own behalf or otherwise), in respect of incidents notified to eligible insurers that could give rise to claims in relation to which an allied health exceptional claims indemnity could be payable.

whether an insurer is entitled to a payment under regulations made for the purposes of section 34ZZZD; or

the amount that is payable to an insurer under regulations made for the purposes of section 34ZZZD;

the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information.

an MDO;

an eligible insurer;

a member or former member of an MDO;

a person who practises, or used to practise, an allied health profession;

a person who is acting, or has acted, on behalf of a person covered by paragraph (d);

a legal personal representative of a person covered by paragraph (c), (d) or (e).

must be made in writing; and

must state what information must be given to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify a day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request was made.

Subdivision F—Miscellaneous

a specified class of claims; or

a specified class of contracts of insurance; or

a specified class of situations in which a liability is, whether wholly or partly, covered by more than one contract of insurance.

to count the liability as a qualifying allied health liability (even though subparagraph 34ZZS(a)(i) may not be satisfied in relation to the order); and

to deal with what happens if, as a result of the appeal or another appeal, the amount paid later becomes wholly or partly repayable; and

to deal with what happens if the amount paid is later applied towards a liability that is confirmed as a result of the appeal or another appeal.

an MDO or insurer applies for an IBNR indemnity, a high cost claim indemnity, a run-off cover indemnity or an allied health high cost claim indemnity; and

the Chief Executive Medicare requests a person to give information under section 38 in relation to the application; and

the person does not give the Chief Executive Medicare the information requested before the end of the month that immediately follows the month in which the MDO or insurer applies for the indemnity; and

an IBNR indemnity, a high cost claim indemnity, a run-off cover indemnity or an allied health high cost claim indemnity is payable to the MDO or insurer;

the Chief Executive Medicare must pay the IBNR indemnity, the high cost claim indemnity, the run-off cover indemnity or the allied health high cost claim indemnity to the MDO or insurer before the end of the month that immediately follows the month in which the person gives the Chief Executive Medicare the requested information.

Application may be treated as withdrawn if requested information is not given

the Chief Executive Medicare requests the MDO or insurer who made the application to give information under section 38 in relation to the application; and

the MDO or insurer does not give the information to the Chief Executive Medicare by the end of the day specified in the request.

be made in writing using a form approved by the Chief Executive Medicare; and

be accompanied by the documents and other information required by the form approved by the Chief Executive Medicare.

if the liability is under a judgment or order of a court—the date on which the judgment or order became or becomes a judgment or order that is not stayed and is not subject to appeal; or

if the liability is under a settlement of the claim—the date on which the settlement agreement was entered into; or

if the liability is some other kind of liability—the date on which the liability was incurred.

(a) an application (the certificate application) for the issue of a qualifying claim certificate or a qualifying allied health claim certificate in relation to a claim; and

(b) an application (the indemnity application) for an exceptional claims indemnity or allied health exceptional claims indemnity in relation to the same claim;

the Chief Executive Medicare does not have to decide the indemnity application until the Chief Executive Medicare has decided the certificate application.

Time by which payment must be made

whether an indemnity scheme payment is payable; or

the amount of the indemnity scheme payment that is payable; or

whether a qualifying claim certificate or qualifying allied health claim certificate should be issued, varied or revoked; or

the Commonwealth’s possible future liability to make indemnity scheme payments, or a particular kind of indemnity scheme payment;

the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information.

an MDO;

an insurer;

a member, or former member, of an MDO;

a person who practises, or used to practise, a medical profession;

a person who is acting, or has acted, on behalf of a person covered by paragraph (ca);

the legal personal representative of a person covered by paragraph (c), (ca) or (cb).

must be made in writing; and

must state what information must be given to the Chief Executive Medicare; and

may require the information to be verified by statutory declaration; and

must specify the day on or before which the information must be given; and

must contain a statement to the effect that a failure to comply with the request is an offence.

The day specified under paragraph (d) must be at least 28 days after the day on which the request is made.

the payability of the payment;

the amount of the payment payable;

any amount paid to the person that results in a person being liable to pay an amount under section 24, 34T, 34ZJ or 34ZZZ;

any other matter specified in the rules.

Records to be kept by person who applies for a qualifying claim certificate or qualifying allied health claim certificate

matters related to whether the criteria specified in subsection 34E(1) or 34ZZK(1) are satisfied in relation to the claim;

any other matter specified in the rules.

Records to be retained for certain period

determining its IBNR exposure as at the end of a financial year;

any other matter specified in the rules.

Records to be retained for certain period

the amount of indemnity scheme payment is not payable; or

the amount paid is greater than the amount of the indemnity scheme payment that was payable.

the whole of the amount paid if paragraph (1)(a) applies; or

the difference between the amount that was paid and the amount that was payable if paragraph (1)(b) applies.

if the indemnity scheme payment was an IBNR indemnity, a high cost claim indemnity, a run-off cover indemnity or an allied health high cost claim indemnity—the MDO or insurer to which the payment was made; or

if the indemnity scheme payment was an exceptional claims indemnity—the person who is the liable person under subsection 34R(2); or

if the indemnity scheme payment was an allied health exceptional claims indemnity—the person who is the liable person under subsection 34ZZX(2).

the recipient and the practitioner are not the same person; and

the practitioner becomes the liable person;

then (subject to subsections 34R(3) and 34ZZX(3)), the recipient ceases to be the liable person, and the amount overpaid must instead be recovered from the practitioner.

by action by the Chief Executive Medicare against the liable person in a court of competent jurisdiction; or

by deduction from the amount of an IBNR indemnity, a high cost claim indemnity, a run-off cover indemnity or an allied health high cost claim indemnity payable to the liable person; or

under section 42.

The total amount recovered must not exceed the amount overpaid.

Subdivision E—Recovery of repayment or overpayment debt

not require an amount to be paid to the Chief Executive Medicare at a time before it becomes owing by the third party to the liable person; and

specify a period of not less than 14 days within which the third party must comply with the direction.

the repayment or overpayment debt relates to an exceptional claims indemnity or an allied health exceptional claims indemnity; and

the recipient and the practitioner referred to in subsection 34Q(1) or 34ZZW(1) are not the same person; and

the practitioner becomes the liable person; and

the direction was given to the recipient;

the direction ceases to have effect when the practitioner becomes the liable person.

Third party to comply