Commonwealth Consolidated Acts Commonwealth Consolidated ActsBasic payability rule
(1) Subject to section 34ZZC, an allied health high cost claim indemnity is payable to an eligible MDO or eligible insurer under this section if:
(a) a claim is, or was, made against a person (the practitioner ); and
(b) the claim relates to:
(i) an incident that occurs or occurred; or
(ii) 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
(c) if the allied health profession is midwifery--the practitioner is not:
(i) an eligible midwife for whom a contract of insurance with a midwife insurer provides midwife professional indemnity cover in relation to the claim; or
(ii) 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
(d) either:
(i) the incident occurs or occurred; or
(ii) one or more of the incidents in the series occurs or occurred;
in Australia or in an external Territory; and
(e) either:
(i) the incident occurs or occurred; or
(ii) all of the incidents in the series occur or occurred;
on or after 1 July 2020; and
(f) the MDO or insurer is first notified of:
(i) the incident; or
(ii) the claim; or
(iii) 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
(g) the MDO or insurer has a qualifying allied health payment in relation to the claim, or qualifying allied health payments in relation to:
(i) the claim; or
(ii) the claim and one or more eligible related claims; and
(h) 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:
(i) when the MDO or insurer was first notified of the incident;
(ii) when the MDO or insurer was first notified of the claim;
(iii) when the MDO or insurer was first notified of an eligible related claim; and
(i) a high cost claim indemnity is not payable in relation to the claim; and
(j) any other requirements (however described) that are specified in the rules have been met.
(3) Rules made for the purposes of paragraph (1)(j) do not apply in relation to an incident if the claim relating to the incident was made before the rules in question commence.
Qualifying allied health payments
(4) The MDO or insurer has a qualifying allied health payment in relation to a claim if:
(a) the MDO or insurer:
(i) pays an amount in relation to the claim; or
(ii) 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
(iii) 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
(iv) is a Chapter 5 body corporate and is liable to pay a provable amount in relation to the claim; and
(b) 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
(c) the MDO or insurer:
(i) pays, or becomes liable to pay, the amount in the ordinary course of the MDO's or the insurer's business; or
(ii) 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.
(5) The date specified in the rules for the purposes of paragraph (1)(f) must be at least 12 months after the day on which the rules in question are registered on the Federal Register of Legislation.
Indemnity to be paid on trust if MDO or insurer under external administration
(6) If an allied health high cost claim indemnity is paid to an MDO or insurer that is a Chapter 5 body corporate, the indemnity is, to the extent to which it is attributable to an amount that the MDO or insurer is liable to pay to a person, paid on trust for the benefit of that person.