MEDICAL AND MIDWIFE INDEMNITY LEGISLATION AMENDMENT BILL 2019

2019

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Medical and Midwife Indemnity

Legislation Amendment Bill 2019

No. , 2019

(Health)

A Bill for an Act to amend the law in relation to

medical and midwife indemnity, and for related

purposes

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--Competitive advantage payment and UMP

support payment

Part 1--Repeals

Medical Indemnity (Competitive Advantage Payment) Act 2005

Medical Indemnity (UMP Support Payment) Act 2002

Part 2--Amendments

Health Insurance Act 1973

Human Services (Medicare) Act 1973

Income Tax Assessment Act 1997

Medical Indemnity Act 2002

National Health Act 1953

Schedule 2--Indemnity scheme payments

Part 1--Aggregation of claims for high cost claim indemnity

schemes

Medical Indemnity Act 2002

Part 2--Medical professions

Medical Indemnity Act 2002

Part 3--Run-off cover on retirement

Age Discrimination Act 2004

Medical Indemnity Act 2002

Midwife Professional Indemnity (Commonwealth Contribution)

Scheme Act 2010

Part 4--Health service incidents

Medical Indemnity Act 2002

Midwife Professional Indemnity (Commonwealth Contribution)

Scheme Act 2010

Schedule 3--Administration

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Medical Indemnity Act 2002

Midwife Professional Indemnity (Commonwealth Contribution)

Scheme Act 2010

Schedule 4--Instruments

Part 1--Amendments

Medical Indemnity Act 2002

Medical Indemnity (Prudential Supervision and Product Standards)

Act 2003

Medical Indemnity (Run-off Cover Support Payment) Act 2004

Midwife Professional Indemnity (Commonwealth Contribution)

Scheme Act 2010

Part 2--Application and transitional

Schedule 5--Universal cover

Medical Indemnity Act 2002

Medical Indemnity (Prudential Supervision and Product Standards)

Act 2003

Schedule 6--Allied health professionals

Medical Indemnity Act 2002

Medical Indemnity (Prudential Supervision and Product Standards)

Act 2003

106

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

A Bill for an Act to amend the law in relation to

medical and midwife indemnity, and for related

purposes

The Parliament of Australia enacts:

1 Short title

This Act is the Medical and Midwife Indemnity Legislation

Amendment Act 2019.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1 to

1 July 2020.

1 July 2020

3. Schedule 6

Immediately after the commencement of the

provisions covered by table item 2.

1 July 2020

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Competitive advantage payment and UMP support payment Schedule 1

Repeals Part 1

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

Schedule 1--Competitive advantage payment

and UMP support payment

Part 1--Repeals

Medical Indemnity (Competitive Advantage Payment) Act

2005

1 The whole of the Act

Repeal the Act.

Medical Indemnity (UMP Support Payment) Act 2002

2 The whole of the Act

Repeal the Act.

Schedule 1 Competitive advantage payment and UMP support payment

Part 2 Amendments

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Part 2--Amendments

Health Insurance Act 1973

3 Subsection 130(25) (paragraphs (b) and (d) of the definition

of indemnity legislation)

Repeal the paragraphs.

Human Services (Medicare) Act 1973

4 Paragraphs 42(2)(aa) and (c)

Repeal the paragraphs.

Income Tax Assessment Act 1997

5 Section 12-

5 (table item headed "United Medical Protection

Limited support payments")

Repeal the item.

6 Section 25-105

Repeal the section.

7 Subsection 995-1(1) (definition of United Medical Protection

Limited support payment)

Repeal the definition.

Medical Indemnity Act 2002

8 Before subsection 3(1)

Insert:

Availability of medical services

9 Subsection 3(4)

Repeal the subsection, substitute:

Competitive advantage payment and UMP support payment Schedule 1

Amendments Part 2

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

(4) Another object of this Act (together with the medical indemnity

payment legislation) is to allow the Commonwealth to recover the

costs of providing the assistance referred to in paragraph (2)(ab) by

requiring payments from medical indemnity insurers.

10 Subsection 4(1) (definition of contribution year)

Repeal the definition, substitute:

contribution year has the same meaning as in the Medical

Indemnity (Run-off Cover Support Payment) Act 2004.

11 Subsection 4(1) (definition of imposition day)

Repeal the definition.

12 Subsection 4(1) (paragraphs (b) and (c) of the definition of

late payment penalty)

Repeal the paragraphs, substitute:

(b) in relation to a run-off cover support payment--means a

penalty payable under section 65.

13 Subsection 4(1) (note 1 to the definition of medical

indemnity cover)

Omit "Note 1", substitute "Note".

14 Subsection 4(1) (note 2 to the definition of medical

indemnity cover)

Repeal the note.

15 Subsection 4(1) (definition of medical indemnity payment)

Repeal the definition.

16 Subsection 4(1) (definition of medical indemnity payment

legislation)

Repeal the definition, substitute:

medical indemnity payment legislation means the Medical

Indemnity (Run-off Cover Support Payment) Act 2004.

Schedule 1 Competitive advantage payment and UMP support payment

Part 2 Amendments

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

17 Subsection 4(1)

Repeal the following definitions:

(a) definition of medicare benefit;

(b) definition of net IBNR exposure.

18 Subsection 4(1)

Insert:

run-off cover support payment means a payment payable under

Division 2 of Part 3.

19 Subsection 10(2) (table item 9, column headed

"Provisions")

Omit "section 38", substitute "sections 27C and 38".

20 Paragraph 19(b)

Repeal the paragraph.

21 At the end of Division 1 of Part 2

Add:

Subdivision G--IBNR exposure

27C Process for annually reassessing IBNR exposure

Report by the Actuary

(1) For each financial year, the Actuary must give the Minister a

written report that:

(a) states the Actuary's assessment of the participating MDO's

IBNR exposure as at the end of the financial year; and

(b) sets out the reasons for the assessment.

(2) In preparing the report, the Actuary must take into account any

information that the Chief Executive Medicare gives the Actuary in

relation to the participating MDO under subsection (6).

Competitive advantage payment and UMP support payment Schedule 1

Amendments Part 2

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

Chief Executive Medicare's information gathering powers

(3) If the Chief Executive Medicare believes on reasonable grounds

that the participating MDO is capable of giving information that is

relevant to assessing the participating MDO's IBNR exposure as at

the end of a financial year, the Chief Executive Medicare may

request the participating MDO to give the Chief Executive

Medicare the information.

Note:

Failure to comply with the request is an offence (see section 45).

(4) Without limiting subsection (3), the kind of information that may

be requested includes information in the form of:

(a) financial statements; and

(b) a report prepared by a suitably qualified actuary assessing the

participating MDO's IBNR exposure as at the end of a

financial year.

(5) The request:

(a) must be made in writing; and

(b) must state what information the participating MDO is to give

to the Chief Executive Medicare; and

declaration; and

(d) must specify the day on or before which the information must

be given; and

(e) 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.

(6) The Chief Executive Medicare must give any information that the

participating MDO gives the Chief Executive Medicare to the

Actuary for the purposes of preparing the report for the Minister

under subsection (1).

22 Section 34ZT (heading)

After "run-off cover", insert "support".

23 Subsection 34ZT(1)

After "run-off cover", insert "support".

Schedule 1 Competitive advantage payment and UMP support payment

Part 2 Amendments

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

24 Paragraph 34ZT(2)(b)

Repeal the paragraph, substitute:

(b) 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.

25 Subsection 34ZV(2) (definition of run-off cover support

payment)

Repeal the definition.

26 Section 44A

Repeal the section.

27 Paragraphs 45(1)(a) to (baa)

Repeal the paragraphs, substitute:

(a) subsection 27B(1); or

(b) subsection 27C(3); or

28 Division 1 of Part 3

Repeal the Division.

29 Subsection 57(3) (table item 5, column headed

"Provisions")

Omit "sections 61 and 62", substitute "section 61".

30 Division 2A of Part 3

Repeal the Division.

31 Division 3 of Part 3 (heading)

Omit "medical indemnity payments", substitute "run-off cover

support payments".

32 Subsection 60(1)

Omit "UMP support payments, run-off cover support payments and

competitive advantage payments", substitute "run-off cover support

payments".

Competitive advantage payment and UMP support payment Schedule 1

Amendments Part 2

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

33 Subsection 60(2) (table)

Repeal the table, substitute:

Where to find the provisions on various issues

Item

Issue

Provisions

what is the time for paying run-off

cover support payments?

section 61

when is late payment penalty

payable?

section 65

what method should be used to pay

run-off cover support payments?

section 66

what happens if run-off cover support

payments are overpaid?

section 67

how are run-off cover support

payments and late payment penalties

recovered?

sections 68 to 70

what information has to be provided

to the Chief Executive Medicare

about run-off cover support payment

matters?

sections 71 and 72

34 Subdivision B of Division 3 of Part 3 (heading)

Omit "medical indemnity payments", substitute "run-off cover

support payments".

35 Sections 61 and 62

Repeal the sections, substitute:

61 When run-off cover support payment must be paid

A run-off cover support payment that a person is liable to pay for a

contribution year becomes due and payable on:

(a) 30 June in the contribution year; or

(b) such other day as is specified in the rules as the payment day

for the contribution year either generally for all people, for

the class of people that includes the person or for the person,

as the case may be.

Schedule 1 Competitive advantage payment and UMP support payment

Part 2 Amendments

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

36 Paragraph 65(1)(a)

Omit "medical indemnity payment", substitute "run-off cover support

payment".

37 Subsection 66(1)

Repeal the subsection, substitute:

(1) A run-off cover support payment must be paid to the Chief

Executive Medicare.

38 Subsection 66(3)

Omit "or 66B".

39 Subsection 66(5)

Repeal the subsection.

40 Sections 66A and 66B

Repeal the sections.

41 Subsection 67(1) (heading)

Omit "medical indemnity payment", substitute "run-off cover support

payment".

42 Paragraph 67(1)(a)

Omit "medical indemnity payment", substitute "run-off cover support

payment".

43 Paragraphs 67(1)(b) and (c)

Repeal the paragraphs, substitute:

(b) a late payment penalty in relation to a run-off cover support

payment for a contribution year;

44 Subsection 68(1)

Omit "medical indemnity payment", substitute "run-off cover support

payment".

45 Subsection 68(2)

Repeal the subsection.

Competitive advantage payment and UMP support payment Schedule 1

Amendments Part 2

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

46 Subsection 68(3)

Omit "or 66B".

47 Subsection 68(4)

Omit "(1), (2) or (3)", substitute "(1) or (3)".

48 Paragraph 70(1)(a)

Repeal the paragraph, substitute:

(a) stating that a person is liable to pay:

(i) a run-off cover support payment; or

(ii) a late payment penalty in relation to a run-off cover

support payment; and

49 Paragraphs 71(1)(a) and (b) and 72(1)(a)

Omit "medical indemnity payment", substitute "run-off cover support

payment".

50 Subsection 73(1)

Repeal the subsection, substitute:

(1) This section applies if a person is given a request for information

under subsection 71(1).

51 Section 74A

Repeal the section.

52 Subsection 77(1) (at the end of the definition of medical

indemnity legislation)

Add:

; or (c) the repealed Medical Indemnity (Competitive Advantage

Payment) Act 2005; or

(d) the repealed Medical Indemnity (UMP Support Payment) Act

2002.

Schedule 1 Competitive advantage payment and UMP support payment

Part 2 Amendments

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

National Health Act 1953

53 Subsection 135A(24) (paragraphs (b) and (d) of the

definition of indemnity legislation)

Repeal the paragraphs.

54 Application

(1)

The amendments of the Health Insurance Act 1973 made by this Part

apply in relation to any recording, divulging or communication of

information after the commencement of this item.

(2)

The amendments of the Income Tax Assessment Act 1997 made by this

Part apply in relation to income years starting on or after 1 July 2020.

(3)

Section 27C of the Medical Indemnity Act 2002, as inserted by this Part,

and the repeal of section 56 of that Act by this Part, apply in relation to

financial years starting on or after 1 July 2019.

(4)

Despite the amendments of sections 45 and 73 of the Medical Indemnity

Act 2002 made by this Part, those sections continue to apply in relation

to any request for information given before the commencement of this

item, as if those amendments had not been made.

(5)

The amendments of the National Health Act 1953 made by this Part

apply in relation to any divulging or communication of information

after the commencement of this item.

Indemnity scheme payments Schedule 2

Aggregation of claims for high cost claim indemnity schemes Part 1

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

Schedule 2--Indemnity scheme payments

Part 1--Aggregation of claims for high cost claim

indemnity schemes

Medical Indemnity Act 2002

1 Subsection 4(1)

Insert:

eligible related claims: see section 8A.

2 Section 8A

Repeal the section, substitute:

8A Eligible related claims

(1) A claim or claims are eligible related claims in relation to a claim

for which an application for a high cost claim indemnity or allied

health high cost claim indemnity is made if:

(a) all the claims are made against the same person; and

(b) all the claims are made in relation to the same incident or

series of related incidents; and

(i) all the claims are part of the same class action or

representative proceeding; or

(ii) the incident, or series of related incidents, occurred in

connection with a pregnancy or the birth of a child or

children; and

(d) the application is the only application for a high cost claim

indemnity or allied health high cost claim indemnity that has

been made in relation to any of the claims; and

(e) none of the claims are eligible related claims in relation to

another claim for which an application for a high cost claim

indemnity or allied health high cost claim indemnity has been

made.

Schedule 2 Indemnity scheme payments

Part 1 Aggregation of claims for high cost claim indemnity schemes

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

(2) For the purposes of paragraphs (1)(d) and (e), disregard an

application if it is withdrawn before payment is made in relation to

the application.

3 Paragraphs 30(1)(d) to (f)

Repeal the paragraphs, substitute:

(d) the MDO or insurer is first notified of:

(i) the incident; or

(ii) the claim; or

(iii) 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

(e) the MDO or insurer has a qualifying payment in relation to

the claim, or qualifying payments in relation to:

(i) the claim; or

(ii) the claim and one or more eligible related claims; and

(f) 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:

(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

4 Subsection 30(2)

Omit "in relation to the claim if", substitute "in relation to a claim if".

5 Paragraph 31(1)(a)

After "a claim", insert "that relates to an incident or a series of

incidents".

6 Paragraph 31(1)(b)

Omit "an amount in relation to the same claim (the insurer amount)",

substitute "an amount (the insurer amount) in relation to the same

claim or in relation to an eligible related claim".

Indemnity scheme payments Schedule 2

Aggregation of claims for high cost claim indemnity schemes Part 1

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

7 Subparagraph 31(2)(a)(i)

After "claim", insert "or eligible related claim".

8 Subparagraph 31(2)(a)(ii)

Omit "30(1)(a) to (e)", substitute "30(1)(e)".

9 At the end of paragraph 31(2)(a)

Add:

(iii) 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

10 Application

The amendments made by this Part apply in relation to any application

for an indemnity scheme payment made on or after the commencement

of this item (whether in relation to a claim made before or after that

commencement).

Schedule 2 Indemnity scheme payments

Part 2 Medical professions

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Part 2--Medical professions

Medical Indemnity Act 2002

11 Paragraph 4(1A)(a)

Omit "or other health professional".

12 Subsection 28(1)

Omit "practice by the person of a medical profession, other than

practice as an eligible midwife", substitute "person's practice as a

medical practitioner".

13 Paragraph 30(1)(b)

Omit "practice by the practitioner of a medical profession, other than

practice as an eligible midwife", substitute "practitioner's practice as a

medical practitioner".

14 Paragraph 34A(1)(a)

Omit "practice by the person of a medical profession (other than

practice as an eligible midwife)", substitute "person's practice as a

medical practitioner".

15 Paragraph 34E(1)(b)

Omit "practice by the practitioner of a medical profession, other than

practice as an eligible midwife", substitute "practitioner's practice as a

medical practitioner".

16 Application

Despite the amendments of sections 28, 30, 34A and 34E of the Medical

Indemnity Act 2002 made by this Part, those sections continue to apply,

as if the amendments had not been made, in relation to any claim,

whether made before or after the commencement of this item, that

relates to:

(a) an incident that occurred before that commencement; or

(b) a series of related incidents, at least one of which occurred

before that commencement;

Schedule 2 Indemnity scheme payments

Part 3 Run-off cover on retirement

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Part 3--Run-off cover on retirement

Age Discrimination Act 2004

17 Schedule 2 (table items 6 and 7)

Repeal the items.

Medical Indemnity Act 2002

18 Subparagraph 34ZB(1)(d)(i)

Omit "subsection 34ZB(2)", substitute "subsection (2)".

19 Paragraph 34ZB(2)(a)

Omit "aged 65 years or over".

20 Application and transitional

(1)

The amendments of the Age Discrimination Act 2004 made by this Part

apply in relation to anything done after the commencement of this item.

(2)

The amendments of subsection 34ZB(2) of the Medical Indemnity Act

2002 made by this Part apply in relation to:

(a) any claim made after the commencement of this item against

a person who has retired permanently from private medical

practice; and

(b) any requirement under Division 2A of Part 3 of the PSPS Act

to provide medical indemnity cover after the commencement

of this item for a person who has retired permanently from

private medical practice;

whether the person retired before or after the commencement of this

item.

(3)

If:

(a) before the commencement of this item, a person has retired

permanently from private medical practice (within the

meaning of subsection 34ZB(5) of the Medical Indemnity Act

2002 as in force immediately before that commencement);

and

(b) before that commencement, the person accepted:

Indemnity scheme payments Schedule 2

Run-off cover on retirement Part 3

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

(i) an offer to provide medical indemnity cover made

because an event mentioned in paragraph 23(1)(b) of the

PSPS Act occurred; or

(ii) an offer to renew cover mentioned in subparagraph (i);

and

that commencement; and

(d) at that commencement, the person is aged less than 65 years;

the requirement in paragraph 26A(4)(f) of the PSPS Act does not apply,

in relation to medical indemnity cover provided to the person for the

purposes of subsection 26A(1) of the PSPS Act, until the cover

mentioned in paragraph (b) of this subitem ceases.

Note:

Regulations made for the purposes of section 24 of the PSPS Act deal

with the premium payable for run-off cover provided under section 23

of the PSPS Act. While such run-off cover is in place, a medical

indemnity insurer will not contravene the requirement in

paragraph 26A(4)(f) of the PSPS Act not to charge a premium or other

consideration.

(4)

In this item:

medical indemnity cover has the meaning given in the PSPS Act.

PSPS Act means the Medical Indemnity (Prudential Supervision and

Product Standards) Act 2003.

Midwife Professional Indemnity (Commonwealth

Contribution) Scheme Act 2010

21 Paragraph 31(2)(a)

Omit "aged 65 years or over".

22 Application

The amendments of subsection 31(2) of the Midwife Professional

Indemnity (Commonwealth Contribution) Scheme Act 2010 made by

this Part apply in relation to any claim made after the commencement of

this item against a person who has retired permanently from private

practice as an eligible midwife, whether the person retired before or

after the commencement of this item.

Schedule 2 Indemnity scheme payments

Part 4 Health service incidents

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Part 4--Health service incidents

Medical Indemnity Act 2002

23 Subsection 4(1)

Insert:

health service means any service, care, treatment, advice or goods

provided in respect of the physical or mental health of a person.

24 Subsection 4(1) (definition of incident)

Repeal the definition, substitute:

incident means any incident (including any act, omission or

circumstance) that occurs, or that is claimed to have occurred, in

the course of, or in connection with, the provision of a health

service.

Midwife Professional Indemnity (Commonwealth

Contribution) Scheme Act 2010

25 Subsection 5(1)

Insert:

health service means any service, care, treatment, advice or goods

provided in respect of the physical or mental health of a person.

26 Subsection 5(1) (definition of incident)

Repeal the definition, substitute:

incident means any incident (including any act, omission or

circumstance) that occurs, or that is claimed to have occurred, in

the course of, or in connection with, the provision of a health

service.

Schedule 3 Administration

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Schedule 3--Administration

Medical Indemnity Act 2002

1 Subsection 4(1)

Insert:

administrative action has the meaning given by subsection 76A(4).

2 Subsection 4(1) (definition of Human Services Minister)

Repeal the definition.

3 Subsection 34I(1)

Omit "subsection (2)", substitute "subsections (2) and (3)".

4 At the end of section 34I

Add:

(3) The Chief Executive Medicare may treat an application as having

been withdrawn if:

(a) the Chief Executive Medicare requests the person who

applied for the certificate to give information under

section 38 in relation to the application; and

(b) the person does not give the information to the Chief

Executive Medicare by the end of the day specified in the

request.

(4) The Chief Executive Medicare must notify the person who applied

for the certificate if the Chief Executive Medicare treats the

application as having been withdrawn.

5 Subsection 34ZW(1)

Repeal the subsection, substitute:

(1) After the end of each financial year, the Actuary must give the

Secretary a report on the operation of this Division.

6 Subsection 34ZW(2)

Omit "in relation to a financial year".

Administration Schedule 3

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

7 After subsection 34ZW(2)

Insert:

(2A) The Secretary must publish the report on the Department's website

within 30 days after receiving the report.

8 Subsection 37(1)

Omit "subsection (2)", substitute "subsections (2) and (2A)".

9 Before subsection 37(2)

Insert:

Payment will not be made until requested information is given

10 Subsection 37(2)

Omit "If", substitute "Subject to subsection (2A), if".

11 After subsection 37(2)

Insert:

Application may be treated as withdrawn if requested information

is not given

(2A) The Chief Executive Medicare may treat an application as having

been withdrawn if:

(a) 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

(b) the MDO or insurer does not give the information to the

Chief Executive Medicare by the end of the day specified in

the request.

(2B) The Chief Executive Medicare must notify the MDO or insurer if

the Chief Executive Medicare treats the application as having been

withdrawn.

Definitions

12 Subsection 38(1) (note)

Omit "Note", substitute "Note 1".

Schedule 3 Administration

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

13 At the end of subsection 38(1)

Add:

Note 2:

Failure to comply may affect certain indemnity scheme payments: see

sections 34I, 34ZZO and 37.

14 At the end of Part 2

Add:

Division 8--Monitoring

50 Insurers may be required to provide information

The rules may require a medical indemnity insurer to provide to

the Secretary information about any of the following:

(a) premium costs for medical indemnity cover provided by

contracts of insurance with the insurer;

(b) the income of medical practitioners, or persons who practise

an allied health profession, for whom contracts of insurance

with the insurer provide medical indemnity cover;

(d) the insurer's reinsurance arrangements and costs.

15 After section 76

Insert:

76A Chief Executive Medicare may use computer programs to take

administrative action

(1) The Chief Executive Medicare may arrange for the use, under the

Chief Executive Medicare's control, of computer programs for any

purposes for which the Chief Executive Medicare may or must take

administrative action under this Act or a legislative instrument

made under this Act.

(2) Administrative action taken by the operation of a computer

program under such an arrangement is, for the purposes of this Act,

taken to be administrative action taken by the Chief Executive

Medicare.

Administration Schedule 3

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

(3) The Chief Executive Medicare may substitute a decision for a

decision the Chief Executive Medicare is taken to have made under

subsection (2) if the Chief Executive Medicare is satisfied that the

decision made by the operation of the computer program is

incorrect.

(4) In this Act:

administrative action means any of the following:

(a) making a decision;

(b) exercising any power or complying with any obligation;

exercising a power or complying with an obligation.

76B Delegation by Secretary

(1) The Secretary may, in writing, delegate all or any of the functions

or powers of the Secretary under this Act or a legislative

instrument made under this Act to any of the following persons:

(a) the Chief Executive Medicare;

(b) an SES employee, or an acting SES employee, in the

Department or the Department administered by the Minister

administering the Human Services (Centrelink) Act 1997.

Note:

Sections 34AA to 34A of the Acts Interpretation Act 1901 contain

provisions relating to delegations.

(2) In performing a delegated function or exercising a delegated

power, the delegate must comply with any written directions of the

Secretary.

16 Before subsection 77(1)

Insert:

Definitions

17 Before subsection 77(2)

Insert:

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Offence

18 After subsection 77(2)

Insert:

Circumstances in which protected information and protected

documents may be copied, recorded or divulged

(2A) Despite subsection (2), any of the following persons may make a

copy or record of, or divulge to any other of the following persons,

protected information or a protected document, for the purposes of

monitoring, assessing or reviewing the operation of the medical

indemnity legislation:

(a) the Secretary;

(b) the Chief Executive Medicare;

(d) the Australian Prudential Regulation Authority;

(e) the Australian Securities and Investments Commission.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

(2B) Despite subsection (2), any of the following persons may make a

copy or record of, or divulge to any other of the following persons,

protected information or a protected document, for the purposes of

conducting, or assisting a person to conduct, the evaluation

mentioned in section 78A:

(a) a person mentioned in subsection (2A) of this section;

(b) a person conducting the evaluation;

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

19 Subsection 77(5)

Omit "subsection (3)", substitute "subsection (2A), (2B), (3)".

20 After section 78

Insert:

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78A Evaluation of medical indemnity market

(1) The Minister must cause to be conducted an actuarial evaluation

of:

(a) the stability of the medical indemnity insurance industry; and

(b) the affordability of medical indemnity insurance.

(2) The Minister must cause to be prepared a report of an evaluation

under subsection (1).

(3) The Minister must cause a copy of the report to be tabled in each

House of the Parliament by 28 February 2021.

Midwife Professional Indemnity (Commonwealth

Contribution) Scheme Act 2010

21 Subsection 5(1)

Insert:

administrative action has the meaning given by subsection 87A(4).

Secretary means the Secretary of the Department.

22 Subsection 48(1)

Repeal the subsection, substitute:

(1) After the end of each financial year, the Actuary must give the

Secretary a report on the operation of this Part.

23 Subsection 48(2)

Omit "in relation to a financial year".

24 After subsection 48(2)

Insert:

(2A) The Secretary must publish the report on the Department's website

within 30 days after receiving the report.

25 At the end of Part 4 of Chapter 2

Add:

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Division 9--Monitoring

71A Insurers may be required to provide information

The Rules may require an eligible insurer to provide to the

Secretary information about any of the following:

(a) premium costs for midwife professional indemnity cover

provided by contracts of insurance with the insurer;

(b) the income of eligible midwives for whom contracts of

insurance with the insurer provide midwife professional

indemnity cover;

(d) the insurer's reinsurance arrangements and costs.

26 After section 87

Insert:

87A Chief Executive Medicare may use computer programs to take

administrative action

(1) The Chief Executive Medicare may arrange for the use, under the

Chief Executive Medicare's control, of computer programs for any

purposes for which the Chief Executive Medicare may or must take

administrative action under this Act or a legislative instrument

made under this Act.

(2) Administrative action taken by the operation of a computer

program under such an arrangement is, for the purposes of this Act,

taken to be administrative action taken by the Chief Executive

Medicare.

(3) The Chief Executive Medicare may substitute a decision for a

decision the Chief Executive Medicare is taken to have made under

subsection (2) if the Chief Executive Medicare is satisfied that the

decision made by the operation of the computer program is

incorrect.

(4) In this Act:

administrative action means any of the following:

(a) making a decision;

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(b) exercising any power or complying with any obligation;

exercising a power or complying with an obligation.

87B Delegation by Secretary

(1) The Secretary may, in writing, delegate all or any of the functions

or powers of the Secretary under this Act or a legislative

instrument made under this Act to any of the following persons:

(a) the Chief Executive Medicare;

(b) an SES employee, or an acting SES employee, in the

Department or the Department administered by the Minister

administering the Human Services (Centrelink) Act 1997.

Note:

Sections 34AA to 34A of the Acts Interpretation Act 1901 contain

provisions relating to delegations.

(2) In performing a delegated function or exercising a delegated

power, the delegate must comply with any written directions of the

Secretary.

27 Before subsection 88(1)

Insert:

Definitions

28 Before subsection 88(2)

Insert:

Offence

29 After subsection 88(2)

Insert:

Circumstances in which protected information and protected

documents may be copied, recorded or divulged

(2A) Despite subsection (2), any of the following persons may make a

copy or record of, or divulge to any other of the following persons,

protected information or a protected document, for the purposes of

monitoring, assessing or reviewing the operation of the midwife

professional indemnity legislation:

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(a) the Secretary;

(b) the Chief Executive Medicare;

(d) the Australian Prudential Regulation Authority;

(e) the Australian Securities and Investments Commission.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

(2B) Despite subsection (2), any of the following persons may make a

copy or record of, or divulge to any other of the following persons,

protected information or a protected document, for the purposes of

conducting, or assisting a person to conduct, the evaluation

mentioned in section 78A of the Medical Indemnity Act 2002:

(a) a person mentioned in subsection (2A) of this section;

(b) a person conducting the evaluation;

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

30 Subsection 88(4)

Omit "subsection (3)", substitute "subsection (2A), (2B) or (3)".

31 Application

Withdrawal of applications

(1)

The amendments of sections 34I and 37 of the Medical Indemnity Act

2002 made by this Schedule apply in relation to any request under

section 38 of that Act made after the commencement of this item,

whether the application for the issue of the qualifying claim certificate

or the application for the indemnity scheme payment is made before or

after that commencement.

Reports on the run-off cover indemnity schemes

(2)

The amendments of section 34ZW of the Medical Indemnity Act 2002

and section 48 of the Midwife Professional Indemnity (Commonwealth

Contribution) Scheme Act 2010 made by this Schedule apply in relation

to financial years commencing on or after 1 July 2019.

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Disclosure of protected information or protected document

(3)

The amendments of section 77 of the Medical Indemnity Act 2002 and

section 88 of the Midwife Professional Indemnity (Commonwealth

Contribution) Scheme Act 2010 made by this Schedule apply in relation

to any making of a copy or record, or divulging, of protected

information or a protected document after the commencement of this

item, whether the information or document was obtained or made

before or after that commencement.

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Schedule 4--Instruments

Part 1--Amendments

Medical Indemnity Act 2002

1 Subsection 4(1) (note to the definition of exceptional claims

indemnity)

Omit "the Exceptional Claims Protocol", substitute "regulations made

for the purposes of section 34X (exceptional claims payments)".

2 Subsection 4(1) (definition of Exceptional Claims Protocol)

Repeal the definition.

3 Subsection 4(1) (note to the definition of high cost claim

indemnity)

Omit "the High Cost Claims Protocol", substitute "regulations made for

the purposes of section 34AA (high cost claims payments)".

4 Subsection 4(1)

Repeal the following definitions:

(a) definition of High Cost Claims Protocol;

(b) definition of IBNR Claims Protocol.

5 Subsection 4(1) (note to the definition of IBNR indemnity)

Omit "the IBNR Claims Protocol", substitute "regulations made for the

purposes of section 27A (IBNR claims payments)".

6 Subsection 4(1) (definition of participating MDO)

Repeal the definition, substitute:

participating MDO means UMP.

7 Subsection 4(1) (definition of participating member)

Repeal the definition.

8 Subsection 4(1)

Insert:

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rules means the rules made under section 80.

9 Subsection 4(1) (definition of Run-off Cover Claims and

Administration Protocol)

Repeal the definition.

10 Subsection 4(1) (note to the definition of run-off cover

indemnity)

Omit "the Run-off Cover Claims and Administration Protocol",

substitute "regulations made for the purposes of section 34ZN (run-off

claims payments)".

11 Subsection 4(1)

Repeal the following definitions:

(a) definition of unfunded IBNR exposure;

(b) definition of unfunded IBNR factor.

12 Section 5

Omit "regulations" (wherever occurring), substitute "rules".

13 Subsection 10(1)

Omit "an MDO for the incident on 30 June 2002 and the MDO is a

participating MDO", substitute "the participating MDO for the incident

on 30 June 2002".

14 Subsection 10(1A)

Omit "determination of an IBNR Claims Protocol that can", substitute

"regulations and rules to".

15 Subsection 10(2) (table item 1)

Repeal the item, substitute:

which MDO is the participating

MDO?

definition of

participating MDO

in subsection 4(1)

16 Subsection 10(2) (table item 5, column headed

"Provisions")

Omit "sections 21 to 23", substitute "section 21".

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17 Subsection 10(2) (table item 6A)

Repeal the item, substitute:

what regulations can deal with

section 27A

18 Subdivision B of Division 1 of Part 2

Repeal the Subdivision.

19 Paragraph 14(e)

Omit "a participating MDO", substitute "the participating MDO".

20 Paragraph 16(1)(c)

Omit "an MDO for the incident that is covered by the IBNR indemnity

scheme and that MDO is a participating MDO", substitute "the

participating MDO for the incident that is covered by the IBNR

indemnity scheme".

21 Subsection 16(1)

Omit "The MDO mentioned in paragraph (c) is referred to as the

relevant participating MDO.".

22 Subsection 16(4) (heading)

Omit "relevant".

23 Subsection 16(4)

Omit "relevant participating MDO or", substitute "participating MDO

or".

24 Subsection 16(5) (heading)

Omit "relevant".

25 Subsections 16(5) and (6)

Omit "the relevant participating MDO" (wherever occurring), substitute

"the participating MDO".

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26 Paragraph 17(1)(c)

Omit "an MDO for the incident that is covered by the IBNR indemnity

scheme and that MDO is a participating MDO", substitute "the

participating MDO for the incident that is covered by the IBNR

indemnity scheme".

27 Subsection 17(1)

Omit "The MDO mentioned in paragraph (c) is referred to as the

relevant participating MDO.".

28 Subsection 17(4) (heading)

Omit "relevant".

29 Subsection 17(4)

Omit "relevant participating MDO or", substitute "participating MDO

or".

30 Subsection 17(5) (heading)

Omit "Relevant participating MDO", substitute "Participating MDO".

31 Subsections 17(5) and (6)

Omit "the relevant participating MDO" (wherever occurring), substitute

"the participating MDO".

32 Paragraph 19(d)

Omit "prescribed by the regulations", substitute "specified in the rules".

33 Subsection 21(1)

Repeal the subsection, substitute:

(1) The amount of the IBNR indemnity is the adjusted amount of the

payment determined in accordance with subsection (2).

Note:

In certain circumstances, an amount may be repayable under

section 24.

34 Subsection 21(2)

Omit "adjusted amount of the payment", substitute "adjusted amount

of the payment".

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35 Paragraphs 21(3)(c) and (4)(d)

Omit "prescribed by the regulations", substitute "specified in the rules".

36 Sections 22 and 23

Repeal the sections.

37 Subsection 24(2)

Omit "the amount obtained by applying the relevant participating

MDO's unfunded IBNR factor to".

38 Subsection 24(3)

Repeal the subsection.

39 Paragraph 27(2)(a)

Omit "prescribed rate", substitute "rate specified in the rules".

40 Subdivision F of Division 1 of Part 2 (heading)

Repeal the heading, substitute:

Subdivision F--Regulations may provide for payments

41 Section 27A (heading)

Repeal the heading, substitute:

27A Regulations may provide for payments in relation to IBNR

claims

42 Subsection 27A(1)

Repeal the subsection, substitute:

(1) The regulations may provide in relation to:

(a) making payments to MDOs and insurers of claim handling

fees; and

(b) 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).

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43 Subsection 27A(2)

Omit "IBNR Claims Protocol", substitute "regulations".

44 Paragraph 27A(2)(b)

Omit "the Protocol", substitute "regulations made for the purposes of

this section".

45 Subsection 27A(3)

Omit "IBNR Claims Protocol", substitute "regulations".

46 Subsection 27A(4)

Repeal the subsection.

47 Paragraphs 27B(1)(a) and (b)

Omit "the IBNR Claims Protocol", substitute "regulations made for the

purposes of section 27A".

48 Subsection 28(1A)

Omit "determination of a High Cost Claims Protocol that can",

substitute "regulations and rules to".

49 Subsection 28(2) (table item 4A)

Repeal the item, substitute:

what regulations can deal with

section 34AA

50 Subsection 28(2) (table item 8, column headed

"Provisions")

Omit "sections 39 and 40", substitute "section 39".

51 Paragraph 29(1)(b)

Omit "prescribed by the regulations", substitute "specified in the rules".

52 Subsection 29(2)

Repeal the subsection, substitute:

(2) Rules that specify an amount for the purposes of paragraph (1)(b)

that increases the high cost claim threshold at the time the rules are

registered on the Federal Register of Legislation must not

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commence earlier than 12 months after the day on which the rules

are so registered.

53 Paragraph 30(1)(g)

Omit "regulations", substitute "rules".

54 Subsection 30(1A)

Repeal the subsection, substitute:

(1A) Rules made for the purposes of paragraph (1)(g) do not apply in

relation to an incident if the claim relating to the incident was made

before the rules in question commence.

55 Subsection 30(3)

Repeal the subsection, substitute:

(3) The date specified in the rules for the purposes of paragraph (1)(d)

must be at least 12 months after the day on which the rules in

question are registered on the Federal Register of Legislation.

56 Paragraph 32(b)

Omit "a prescribed claim", substitute "specified in the rules".

57 Paragraph 32(c)

Omit "a prescribed incident", substitute "an incident specified in the

rules".

58 Paragraph 34(1)(b)

Omit "prescribed by the regulations", substitute "specified in the rules".

59 Subsection 34(2)

Repeal the subsection, substitute:

(2) Rules that specify for the purposes of paragraph (1)(b) a percentage

that is less than the percentage in force at the time the rules are

registered on the Federal Register of Legislation must not

commence earlier than 12 months after the day on which the rules

are so registered.

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60 Subdivision C of Division 2 of Part 2 (heading)

Repeal the heading, substitute:

Subdivision C--Regulations may provide for payments

61 Section 34AA (heading)

Repeal the heading, substitute:

34AA Regulations may provide for payments in relation to high cost

claims

62 Subsection 34AA(1)

Repeal the subsection, substitute:

(1) The regulations may provide in relation to:

(a) making payments to MDOs and insurers of claim handling

fees; and

(b) 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).

63 Subsection 34AA(2)

Omit "High Cost Claims Protocol", substitute "regulations".

64 Paragraph 34AA(2)(b)

Omit "the Protocol", substitute "regulations made for the purposes of

this section".

65 Subsection 34AA(3)

Omit "High Cost Claims Protocol", substitute "regulations".

66 Subsection 34AA(5)

Repeal the subsection.

67 Paragraphs 34AB(1)(a) and (b)

Omit "the High Cost Claims Protocol", substitute "regulations made for

the purposes of section 34AA".

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68 Subsection 34A(2)

Omit "determination of an Exceptional Claims Protocol that can",

substitute "regulations and rules to".

69 Subsection 34A(3) (table item 8)

Repeal the item, substitute:

what regulations can deal with

section 34X

70 Paragraph 34E(1)(c)

Omit "regulations", substitute "rules".

71 Paragraphs 34E(1)(h) and (i)

Omit "of a class specified in regulations", substitute "specified in

rules".

72 Paragraph 34F(1)(b)

Omit "regulations", substitute "rules".

73 Subsections 34F(2) to (4)

Repeal the subsections, substitute:

Threshold specified in rules only applies to contracts entered into

after the rules commence

(2) A rule specifying an amount as the threshold (or changing the

amount previously so specified) only applies in relation to

contracts of insurance entered into after the rule commences.

When rules reducing the threshold commence

(3) A rule reducing the threshold (which could be the threshold

originally applicable under subsection (1), or that threshold as

already changed by rules) commences on the date specified in the

rules, which must be the date on which the rules are registered on

the Federal Register of Legislation or a later day.

When rules increasing the threshold commence

(4) A rule increasing the threshold (which could be the threshold

originally applicable under subsection (1), or that threshold as

already changed by rules), commences on the date specified in the

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rules, which must be at least 3 months after the date on which the

rules are registered on the Federal Register of Legislation.

74 Subsection 34G(1)

Omit "regulations", substitute "rules".

75 Subsection 34G(2)

Omit "earlier than 1 January 2006, and cannot be before the date on

which the regulations are entered", substitute "before the date on which

the rules are registered".

76 Subparagraph 34J(1)(c)(ii)

Omit "the Exceptional Claims Protocol", substitute "regulations made

for the purposes of section 34X (exceptional claims payments)".

77 Paragraph 34K(2)(a)

Omit "regulations", substitute "rules".

78 Paragraphs 34S(2)(c), 34T(5)(c) and 34W(2)(a)

Omit "regulations", substitute "rules".

79 Subdivision E of Division 2A of Part 2 (heading)

Repeal the heading, substitute:

Subdivision E--Regulations may provide for payments

80 Section 34X (heading)

Repeal the heading, substitute:

34X Regulations may provide for payments in relation to

exceptional claims

81 Subsection 34X(1)

Repeal the subsection, substitute:

(1) The regulations may provide in relation to making payments to

insurers of claim handling fees, and payments on account of legal,

administrative or other costs incurred by insurers (whether on their

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own behalf or otherwise), in respect of claims in relation to which

qualifying claim certificates have been issued.

82 Subsection 34X(2)

Omit "Exceptional Claims Protocol", substitute "regulations".

83 Paragraph 34X(2)(b)

Omit "the Protocol", substitute "regulations made for the purposes of

this section".

84 Subsection 34X(3)

Omit "Protocol", substitute "regulations".

85 Subsection 34X(4)

Repeal the subsection.

86 Paragraphs 34Y(1)(a) and (b)

Omit "the Exceptional Claims Protocol", substitute "regulations made

for the purposes of section 34X".

87 Subsection 34Z(1) (note)

Omit "regulations to exclude classes of claims and classes of",

substitute "rules to exclude claims and".

88 Subsection 34ZA(2)

Omit "determination of a Run-off Cover Claims and Administration

Protocol that can", substitute "regulations and rules to".

89 Subsection 34ZA(3) (table item 5)

Repeal the item, substitute:

what regulations can deal with

section 34ZN

90 Paragraph 34ZB(2)(f)

Omit "regulations", substitute "rules".

91 Subsection 34ZB(2)

Omit "if the person is included in a class of persons that the

regulations", substitute "if the person is included in a class of persons

that the rules".

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92 Subsection 34ZB(3)

Omit "regulations", substitute "rules".

93 Subsection 34ZB(4)

Omit "regulations in question are entered", substitute "rules in question

are registered".

94 Paragraph 34ZB(4A)(d)

Omit "regulations", substitute "rules".

95 Paragraph 34ZG(b)

Omit "prescribed by the regulations", substitute "specified in the rules".

96 Paragraphs 34ZI(2)(d), 34ZJ(5)(d) and 34ZM(2)(a)

Omit "regulations", substitute "rules".

97 Subdivision D of Division 2B of Part 2 (heading)

Repeal the heading, substitute:

Subdivision D--Regulations may provide for payments

98 Section 34ZN (heading)

Repeal the heading, substitute:

34ZN Regulations may provide for payments in relation to run-off

claims

99 Subsection 34ZN(1)

Repeal the subsection, substitute:

(1) The regulations may provide in relation to:

(a) making payments to MDOs and medical indemnity insurers

of claim handling fees in respect of eligible run-off claims;

and

(b) 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

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costs incurred by medical indemnity insurers (whether on

their own behalf or otherwise) in respect of complying with

Division 2A of Part 3 of the Medical Indemnity (Prudential

Supervision and Product Standards) Act 2003.

100 Subsection 34ZN(2)

Omit "Run-off Cover Claims and Administration Protocol", substitute

"regulations".

101 Paragraph 34ZN(2)(b)

Omit "the Protocol", substitute "regulations made for the purposes of

this section".

102 Subsection 34ZN(3)

Omit "Run-off Cover Claims and Administration Protocol", substitute

"regulations".

103 Subsection 34ZN(4)

Repeal the subsection.

104 Paragraphs 34ZO(1)(a) and (b)

Omit "the Run-off Cover Claims and Administration Protocol",

substitute "regulations made for the purposes of section 34ZN".

105 Paragraph 34ZP(2)(a)

Omit "the Minister, by legislative instrument, determines", substitute

"the rules provide".

106 Paragraph 34ZP(2)(b)

Omit "determination is made", substitute "rules made for the purposes

of paragraph (a) commence".

107 Subsection 34ZS(4) (definition of applicable interest rate)

Repeal the definition, substitute:

applicable interest rate is the rate of interest, for the financial year,

specified in the rules for the purposes of this subsection.

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108 Subsection 34ZS(4) (definition of June quarter)

Repeal the definition.

109 Subsection 34ZS(4) (definition of short-term bond rate)

Repeal the definition.

110 Subparagraph 34ZU(2)(c)(ii)

Omit "as the Minister determines by legislative instrument", substitute

"specified in the rules".

111 Paragraph 34ZW(2)(b)

Omit "the Run-off Cover Claims and Administration Protocol",

substitute "regulations made for the purposes of section 34ZN (run-off

claims payments)".

112 Subsection 36(1)

Omit "(1)".

113 Subsections 36(2) and (3)

Repeal the subsections.

114 Subsection 39(1)

Omit "the IBNR Claims Protocol, the High Cost Claims Protocol, the

Exceptional Claims Protocol or the Run-off Cover Claims and

Administration Protocol", substitute "regulations made for the purposes

of section 27A (IBNR claims payments), 34AA (high cost claims

payments), 34X (exceptional claims payments), 34ZN (run-off claims

payments), 34ZZG (allied health high cost claims payments) or

34ZZZD (allied health exceptional claims payments)".

115 Paragraphs 39(1)(d) and (1A)(b)

Omit "determined by the Chief Executive Medicare", substitute

"specified in the rules".

116 Subsections 39(2) to (4)

Repeal the subsections, substitute:

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Records to be retained for certain period

(2) The records must be retained for a period of 5 years (or any other

period specified in the rules) starting on the day on which the

records were created.

Note:

Failure to retain the records is an offence (see section 47).

Rules regarding additional matters

(3) Rules made for the purposes of paragraph (1)(d) or (1A)(b) must

not commence earlier than 14 days after the day on which the rules

are registered on the Federal Register of Legislation.

117 Section 40 (heading)

Omit "Participating MDOs", substitute "Certain insurers and

MDOs".

118 Subsection 40(1) (heading)

Omit "by participating MDO".

119 Subsection 40(1)

Omit "A participating MDO", substitute "An insurer or MDO that

applies for an IBNR indemnity".

120 Paragraphs 40(1)(a) to (d)

Repeal the paragraphs, substitute:

(d) determining its IBNR exposure as at the end of a financial

year;

121 Paragraph 40(1)(e)

Omit "determined by the Chief Executive Medicare", substitute

"specified in the rules".

122 Subsections 40(2) to (4)

Repeal the subsections, substitute:

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Records to be retained for certain period

(2) The records must be retained for a period of 5 years (or any other

period specified in the rules) starting on the day on which the

records were created.

Note:

Failure to retain the records is an offence (see section 47).

Rules regarding additional matters

(3) Rules made for the purposes of paragraph (1)(e) must not

commence earlier than 14 days after the day on which the rules are

registered on the Federal Register of Legislation.

123 Section 43 (heading)

Repeal the heading, substitute:

43 Regulations may provide for subsidy scheme

124 Subsection 43(1)

Repeal the subsection, substitute:

(1) The regulations may provide for one or more schemes for one or

more of the following:

(a) making payments to:

(i) medical practitioners; or

(ii) medical indemnity insurers on behalf of medical

practitioners;

to help those medical practitioners meet the cost of

purchasing medical indemnity (whether such costs are

incurred by way of MDO membership subscriptions,

insurance premiums or otherwise);

(aa) making payments to:

(i) medical practitioners; or

(ii) medical indemnity insurers on behalf of medical

practitioners;

to help those medical practitioners meet the cost of paying

run-off cover support payments;

(b) making payments to medical indemnity insurers to help the

medical indemnity insurers meet the cost of administering

schemes provided for under paragraph (a).

Schedule 4 Instruments

Part 1 Amendments

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

125 Paragraph 43(2)(d)

Omit "medical indemnity providers", substitute "medical indemnity

insurers".

126 Paragraph 43(2)(e)

Repeal the paragraph, substitute:

(e) any amount payable to the Commonwealth to be recovered as

a debt.

127 Subsection 43(5)

Repeal the subsection.

128 Paragraphs 44(1)(a) and (b)

Omit "formulated", substitute "provided for".

129 Paragraphs 48(aa), (baa) and (bb)

Repeal the paragraphs.

130 Paragraph 48(bd)

Repeal the paragraph, substitute:

(bd) allied health high cost claim indemnities; and

(be) allied health exceptional claims indemnities; and

(bf) amounts payable under regulations made for the purposes of

section 27A (IBNR claims payments), 34AA (high cost

claims payments), 34X (exceptional claims payments), 34ZN

(run-off claims payments), 34ZZG (allied health high cost

claims payments) or 34ZZZD (allied health exceptional

claims payments); and

131 Paragraph 48(c)

Omit "formulated", substitute "provided for".

132 Subsection 59(1)

Omit "regulations" (wherever occurring), substitute "rules".

133 Subsection 59(2)

Omit "Regulations", substitute "Rules".

Instruments Schedule 4

Amendments Part 1

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

134 Paragraph 65(2)(a)

Omit "prescribed rate", substitute "rate specified in the rules".

135 Subsection 66(4)

Omit "regulations", substitute "rules".

136 Paragraph 77(4)(a)

Omit "a prescribed authority or person", substitute "specified in rules

made".

137 Paragraph 77(4)(b)

Omit "regulations", substitute "rules".

138 At the end of Part 4

Add:

80 Rules

(1) The Minister may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(3) Rules that are inconsistent with the regulations have no effect to

the extent of the inconsistency, but rules are taken to be consistent

with the regulations to the extent that the rules are capable of

operating concurrently with the regulations.

Schedule 4 Instruments

Part 1 Amendments

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Medical Indemnity (Prudential Supervision and Product

Standards) Act 2003

139 Division 1 of Part 2 (heading)

Repeal the heading.

140 Division 2 of Part 2

Repeal the Division.

141 Paragraph 26A(4)(d)

Repeal the paragraph, substitute:

(d) it is provided on the terms and conditions on which the last

medical indemnity cover provided for the practitioner was

provided, to the extent they are relevant to the provision of

medical indemnity cover; and

142 Subsection 26D(4) (note)

Omit "26A(4)(d)", substitute "26A(4)(e)".

Medical Indemnity (Run-off Cover Support Payment) Act

2004

143 Subparagraph 7(1)(a)(i)

Omit "formulated".

Midwife Professional Indemnity (Commonwealth

Contribution) Scheme Act 2010

144 Subsection 5(1)

Insert:

Rules means the rules made under section 90.

145 Subsection 44(4) (definition of applicable interest rate)

Repeal the definition, substitute:

applicable interest rate is the rate of interest, for the financial year,

specified in the Rules for the purposes of this subsection.

Schedule 4 Instruments

Part 2 Application and transitional

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Part 2--Application and transitional

148 IBNR indemnity scheme

(1)

The amendments of:

(a) the definition of participating MDO in subsection 4(1) of the

Medical Indemnity Act 2002; and

(b) Division 1 of Part 2 (other than sections 24 and 27 and

Subdivision F) of that Act;

made by this Schedule apply in relation to any IBNR indemnity for

which an application is made after the commencement of this item.

(2)

The amendments of section 24 of the Medical Indemnity Act 2002 made

by this Schedule apply in relation to any amount required to be repaid

under subsection 24(1) of that Act after the commencement of this item,

whether the IBNR indemnity, or amount mentioned in

paragraph 24(1)(b) of that Act, is paid to the MDO or insurer before or

after that commencement.

(3)

Despite the amendments of section 27 of the Medical Indemnity Act

2002 made by this Schedule:

(a) that section; and

(b) any regulations made for the purposes of that section;

as in force immediately before the commencement of this item,

continue to apply in relation to any amount that becomes due and

payable under section 24 of that Act before that commencement.

(4)

Despite the amendments of Subdivision F of Division 1 of Part 2 of the

Medical Indemnity Act 2002 made by this Schedule, section 27B of that

Act continues to apply in relation to any payment, or amount payable,

under the IBNR Claims Protocol (within the meaning of that Act as in

force immediately before the commencement of this item), as if those

amendments had not been made.

149 Exceptional claims indemnity scheme

(1)

The amendments of sections 34E and 34F of the Medical Indemnity Act

2002 made by this Schedule apply in relation to any qualifying claim

certificate if the application for the issue of the certificate is made after

the commencement of this item.

Instruments Schedule 4

Application and transitional Part 2

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

(2)

The amendments of sections 34J and 34K of the Medical Indemnity Act

2002 made by this Schedule apply in relation to any qualifying claim

certificate, whether issued before or after the commencement of this

item.

150 Run-off cover indemnity scheme

(1)

The amendments of subsection 34ZB(2) of the Medical Indemnity Act

2002 made by this Schedule apply in relation to:

(a) any claim made after the commencement of this item; and

(b) any requirement under Division 2A of Part 3 of the Medical

Indemnity (Prudential Supervision and Product Standards)

Act 2003 to provide medical indemnity cover (within the

meaning of that Act) after commencement of this item.

(2)

Despite the amendments of section 34ZM of the Medical Indemnity Act

2002 made by this Schedule:

(a) that section; and

(b) any regulations made for the purposes of that section;

as in force immediately before the commencement of this item,

continue to apply in relation to any amount that becomes due and

payable under section 34ZJ of that Act before that commencement.

(3)

Despite the amendments of Subdivision D of Division 2B of Part 2 of

the Medical Indemnity Act 2002 made by this Schedule, section 34ZO

of that Act continues to apply in relation to any payment, or amount

payable, under the Run-off Cover Claims and Administration Protocol

(within the meaning of that Act as in force immediately before the

commencement of this item), as if those amendments had not been

made.

(4)

The amendments of section 34ZS of the Medical Indemnity Act 2002

made by this Schedule apply in relation to any financial year

commencing before, on or after the commencement of this item.

(5)

The amendments of section 34ZW of the Medical Indemnity Act 2002

made by this Schedule apply in relation to financial years commencing

on or after 1 July 2020.

Schedule 4 Instruments

Part 2 Application and transitional

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

151 Administration of the indemnity schemes

(1)

Despite the amendments of sections 39 and 40 of the Medical Indemnity

Act 2002 made by this Schedule, those sections and any instrument

made under or for the purposes of those sections, as in force

immediately before the end of the day before this item commences,

continue to apply in relation to any record required by those sections

and instruments, as in force at that time, to be retained for a period

starting before that time.

(2)

Despite the amendments of section 48 of the Medical Indemnity Act

2002 made by this Schedule, that section continues to apply, as if those

amendments had not been made, in relation to any amount payable

before or after the commencement of this item under the IBNR Claims

Protocol (within the meaning of that Act as in force immediately before

that commencement), the Run-off Cover Claims and Administration

Protocol (within the meaning of that Act as in force immediately before

that commencement) or a scheme formulated under subsection 43(1) of

that Act (as in force immediately before that commencement).

(3)

Despite the amendments of section 65 of the Medical Indemnity Act

2002 made by this Schedule:

(a) that section; and

(b) any regulations made for the purposes of that section;

as in force immediately before the commencement of this item,

continue to apply in relation to any medical indemnity payment (within

the meaning of that Act as in force immediately before that

commencement) that becomes due and payable before that

commencement.

(4)

Despite the amendments of section 66 of the Medical Indemnity Act

2002 made by this Act:

(a) that section; and

(b) any regulations made for the purposes of that section;

as in force immediately before the commencement of this item,

continue to apply in relation to any medical indemnity payment (within

the meaning of that Act as in force immediately before that

commencement) or late payment penalty (within the meaning of that

Act as in force immediately before that commencement) that becomes

due and payable before that commencement.

Instruments Schedule 4

Application and transitional Part 2

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

152 Midwife professional indemnity

The amendments of section 44 of the Midwife Professional Indemnity

(Commonwealth Contribution) Scheme Act 2010 made by this Schedule

apply in relation to any financial year commencing before, on or after

the commencement of this item.

153 Rules

(1)

The Minister may, by legislative instrument, make rules prescribing

matters of a transitional nature (including prescribing any saving or

application provisions) relating to:

(a) the amendments or repeals made by this Act; or

(b) the repeal (whether by this Act or otherwise) of any

instrument made under an Act amended or repealed by this

Act.

(2)

To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(3)

Rules may provide that, during or in relation to the first 12 months after

the commencement of this item, this Act or any other Act or instrument

has effect with any modifications prescribed by the rules.

(4)

Subsection 12(2) (retrospective application of legislative instruments)

of the Legislation Act 2003 does not apply to rules made for the

purposes of this item.

(5)

This Act does not limit the rules that may be made for the purposes of

subitem (1).

Schedule 5 Universal cover

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Schedule 5--Universal cover

Medical Indemnity Act 2002

1 After subsection 3(3)

Insert:

(3A) This Act also supports access by medical practitioners to

arrangements that indemnify them for claims arising in relation to

their practice of their medical professions by limiting when

medical indemnity insurers can refuse to provide medical

indemnity cover.

2 Subsection 4(1)

Insert:

AFCA has the meaning given by section 761A of the Corporations

Act 2001.

Health Practitioner Regulation National Law means the Health

Practitioner Regulation National Law set out in the Schedule to the

Health Practitioner Regulation National Law Act 2009 (Qld).

private medical practice means practice as a medical practitioner,

other than:

(a) practice consisting of treatment of public patients in a public

hospital; or

(b) practice for which:

(i) the Commonwealth, a State or a Territory; or

(ii) a local governing body; or

(iii) an authority established under a law of the

Commonwealth, a State or a Territory;

indemnifies medical practitioners from liability relating to

compensation claims (within the meaning of the Medical

Indemnity (Prudential Supervision and Product Standards)

Act 2003); or

external Territories; or

(d) practice of a kind specified in the rules.

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Medical and Midwife Indemnity Legislation Amendment Bill 2019

professional indemnity cover: a contract of insurance with a

medical practitioner provides professional indemnity cover if it

provides medical indemnity cover for the practitioner in relation to

the practitioner's private medical practice.

risk surcharge has the meaning given by subsection 52C(1).

3 Subsection 34ZB(5)

Repeal the subsection.

4 After Part 2

Insert:

Part 2A--Universal cover obligation

Division 1--Introduction

51 Guide to the universal cover obligation provisions

(1) This Part prevents medical indemnity insurers from refusing to

provide medical indemnity cover for medical practitioners in

relation to private medical practice, except in certain

circumstances.

(2) This Part also specifies when a medical indemnity insurer may

require a medical practitioner to pay a risk surcharge.

(3) Medical indemnity insurers must keep records and provide

information in relation to these requirements.

51A Winding up of medical indemnity insurer

This Part has effect subject to section 116 of the Insurance Act

1973.

Note:

Under that section, a general insurer must not carry on insurance

business after it starts to be wound up. A general insurer will not

contravene this Part by refusing to enter into an insurance contract if

the winding up of the insurer has started.

Schedule 5 Universal cover

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Division 2--Requirements in relation to providing

professional indemnity cover

52 Division applies for the purposes of the AFCA scheme

A medical indemnity insurer is not required to comply with this

Division other than for the purposes of the AFCA scheme (within

the meaning of the Corporations Act 2001).

Note:

A medical practitioner can make a complaint to AFCA about certain

issues relating to medical indemnity insurance.

52A Universal cover obligation

A medical indemnity insurer must not refuse to enter into a

contract of insurance with a medical practitioner to provide

professional indemnity cover unless:

(a) in relation to a contract of insurance between the practitioner

and the insurer to provide professional indemnity cover, the

practitioner:

(i) failed to comply with the duty of the utmost good faith

(within the meaning of the Insurance Contracts Act

1984); or

(ii) failed to comply with the duty of disclosure (within the

meaning of that Act); or

(iii) made a misrepresentation to the insurer during the

negotiations for the contract but before it was entered

into; or

(iv) failed to comply with a provision of the contract,

including a provision with respect to payment of the

premium; or

(v) made a fraudulent claim under the contract; or

(b) the practitioner places the public at risk of substantial harm in

the practitioner's private medical practice because the

practitioner has an impairment (within the meaning of the

Health Practitioner Regulation National Law); or

unreasonable risk of substantial harm to the public or

patients; or

(d) the practitioner poses an unreasonable risk of harm to

members of the insurer's staff because of persistent

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Medical and Midwife Indemnity Legislation Amendment Bill 2019

threatening or abusive behaviour towards members of the

insurer's staff; or

(e) the practitioner has persistently failed to comply with

reasonable risk management requirements of the insurer; or

(f) the circumstances specified in the rules apply.

52B Medical indemnity insurer to notify of refusal

(1) If a medical indemnity insurer refuses to enter into a contract of

insurance with a medical practitioner to provide professional

indemnity cover, the insurer must notify the practitioner in writing

in accordance with any requirements specified in the rules.

(2) Without limiting subsection (1), the rules may specify:

(a) the information that must be included in the notification; and

(b) a time within which the insurer must notify.

52C Risk surcharge requirements

(1) Subject to subsections (3) and (4), a medical indemnity insurer

may require a medical practitioner (the practitioner) to pay, as part

of the amount payable for professional indemnity cover provided

by a contract of insurance with the practitioner, an amount (the risk

surcharge):

(a) to reflect that, because the practitioner engages, or has

engaged, in conduct that deviates from good medical

practice, the practitioner's private medical practice is likely

to pose a higher risk to patients than similar practices (see

subsection (2)); or

(b) in circumstances specified in the rules.

(2) The private medical practice of another medical practitioner (the

comparison practitioner) is a similar practice if the insurer

reasonably considers that the practitioner and the comparison

practitioner have similar practice profiles for the purposes of

calculating premiums for professional indemnity cover, except that

the comparison practitioner does not engage, and has not engaged,

in conduct that deviates from good medical practice.

(3) The risk surcharge must not exceed the amount:

(a) specified in the rules; or

Schedule 5 Universal cover

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

(b) worked out in accordance with a method specified in the

rules.

(4) The offer to enter into the contract of insurance to provide the

professional indemnity cover must:

(a) identify the amount of the risk surcharge; and

(b) state the reason for requiring payment of the risk surcharge;

in accordance with any requirements specified in the rules.

52D Medical indemnity insurer may be required to offer interim

cover until complaint is finalised

(1) A medical indemnity insurer must offer to enter into a contract of

insurance with a medical practitioner to provide professional

indemnity cover if:

(a) a contract of insurance between the insurer and the

practitioner provides professional indemnity cover (the initial

cover); and

(b) the insurer refuses to enter into a contract of insurance with

the practitioner to provide professional indemnity cover (the

subsequent cover) starting after the initial cover ceases; and

refusal; and

(d) the initial cover, or professional indemnity cover provided as

a result of an offer made for the purposes of this section,

ceases before the complaint finalisation date.

(2) The offer must comply with any requirements specified in the

rules.

(3) However, the insurer is not required to offer to enter into a contract

of insurance that provides professional indemnity cover after the

complaint finalisation date.

(4) In this section:

complaint finalisation date means the earlier of:

(a) the day the subsequent cover starts; and

(b) the day 60 days after the complaint is finalised.

finalised: a complaint is finalised when:

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Medical and Midwife Indemnity Legislation Amendment Bill 2019

(a) the complaint is resolved by agreement between the insurer

and the practitioner; or

(b) the complaint is withdrawn; or

(i) it has excluded the complaint, or decided not to continue

to consider the complaint, and the timeframe in which

the practitioner may object to the decision has expired;

(ii) it has made a preliminary assessment in relation to the

complaint and the timeframe for requesting a

determination of the complaint has expired; or

(iii) it has determined the complaint; or

(d) the complaint otherwise ceases to be dealt with by AFCA.

Division 3--Records, reporting and information

53 Records

(1) The rules may require a medical indemnity insurer to keep records

relating to the following:

(a) a refusal by the insurer to enter into a contract of insurance

with a medical practitioner to provide professional indemnity

cover;

(b) a requirement by the insurer that a medical practitioner pay a

risk surcharge.

Note:

Failure to keep the records is an offence (see section 53A).

(2) Records required by the rules must be retained for a period of 5

years (or any other period specified in the rules) starting on the day

on which the records were created.

Note:

Failure to retain the records is an offence (see section 53A).

53A Failing to keep and retain records

(1) This section applies if section 53 or rules made for the purposes of

that section require a person to keep records or to retain records for

a particular period.

(2) The person commits an offence if the person fails to keep the

records or fails to retain the records for that period.

Schedule 5 Universal cover

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

Penalty: 30 penalty units.

(3) An offence against subsection (2) is an offence of strict liability.

53B Medical indemnity insurer must report annually

(1) If, in a financial year, a medical indemnity insurer refuses to enter

into a contract of insurance with a medical practitioner to provide

professional indemnity cover, the insurer must notify the Secretary

within 2 months after the end of the financial year of:

(a) the number of times in the financial year the insurer refused

to enter into a contract of insurance with a medical

practitioner to provide professional indemnity cover; and

(b) any other matter that relates to the insurer's obligations under

Division 2 and that is specified in the rules.

Note:

Failure to notify is an offence (see section 53C).

(2) If, in a financial year, a medical indemnity insurer requires a

medical practitioner to pay a risk surcharge, the insurer must notify

the Secretary within 2 months after the end of the financial year of:

(a) the number of times in the financial year the insurer required

a medical practitioner to pay a risk surcharge; and

(b) any other matter that relates to the insurer's obligations under

Division 2 and that is specified in the rules.

Note:

Failure to notify is an offence (see section 53C).

(3) The Secretary may, by notifiable instrument, approve a form for

the purposes of notification under subsection (1) or (2).

(4) If the Secretary does so, the notification must be in the approved

form.

(5) Within 3 months after the end of the financial year, the Secretary

must publish on the Department's website any information notified

under paragraph (1)(a) or (2)(a) in relation to the financial year.

53C Failing to report

(1) This section applies if section 53B requires a person to notify the

Secretary of a matter within a particular period.

(2) The person commits an offence if:

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Medical and Midwife Indemnity Legislation Amendment Bill 2019

(a) if the Secretary has approved a form for the purposes of the

notification--the person fails to notify the Secretary of the

matter in the approved form within that period; or

(b) otherwise--the person fails to notify the Secretary of the

matter within that period.

Penalty: 30 penalty units.

(3) An offence against subsection (2) is an offence of strict liability.

53D Secretary may request information

(1) The Secretary may request a medical indemnity insurer to give the

Secretary the following information, in the form requested by the

Secretary:

(a) the number of times in a period the insurer refused to enter

into a contract of insurance with a medical practitioner to

provide professional indemnity cover;

(b) the number of times in a period the insurer required a medical

practitioner to pay a risk surcharge;

under Division 2 and that is specified in the rules.

Note:

Failure to comply with the request is an offence (see section 53E).

(2) The request:

(a) must be made in writing; and

(b) may require the information to be verified by statutory

declaration; and

be given; and

(d) must contain a statement to the effect that a failure to comply

with the request is an offence.

The day specified under paragraph (c) must be at least 28 days

after the day on which the request is made.

53E Failing to give information

(1) This section applies if a person is given a request for information

under section 53D.

Schedule 5 Universal cover

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

(2) The person commits an offence if the person fails to comply with

the request.

Penalty: 30 penalty units.

(3) An offence against subsection (2) is an offence of strict liability.

Medical Indemnity (Prudential Supervision and Product

Standards) Act 2003

5 Subsection 26A(9) (definition of private medical practice)

Omit "section 34ZB of".

6 Application

(1)

Sections 52A, 52B and 52D of the Medical Indemnity Act 2002, as

inserted by this Schedule, apply in relation to any refusal to enter into a

contract of insurance that occurs after the commencement of this item:

(a) whether or not a request to enter into a contract is made; and

(b) if a request to enter into a contract is made--whether it is

made before or after the commencement of this item.

(2)

Section 52C of the Medical Indemnity Act 2002, as inserted by this

Schedule, applies in relation to any professional indemnity cover

provided or to be provided by a contract of insurance entered into after

the commencement of this item.

(3)

Section 53B of the Medical Indemnity Act 2002, as inserted by this

Schedule, applies in relation to financial years starting on or after 1 July

2020.

(4)

Section 53D of the Medical Indemnity Act 2002, as inserted by this

Schedule, applies in relation to any period starting on or after 1 July

2020.

Allied health professionals Schedule 6

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

Schedule 6--Allied health professionals

Medical Indemnity Act 2002

1 At the end of section 3

Add:

Availability of other health services

(5) Another object of this Act is to contribute towards the availability

of certain health services in Australia by providing Commonwealth

assistance to support access by persons who practise allied health

professions to arrangements that indemnify them for claims arising

in relation to their practices.

(6) The Commonwealth provides that assistance under this Act by:

(a) meeting part of the costs of large settlements or awards paid

by organisations that indemnify persons who practise allied

health professions; and

(b) meeting the amounts by which settlements and awards

exceed insurance contract limits, if those contract limits meet

the Commonwealth's threshold requirements.

2 Subsection 4(1)

Insert:

allied health exceptional claims indemnity means an allied health

exceptional claims indemnity paid or payable under Division 2D of

Part 2.

Note:

Amounts payable under regulations made for the purposes of

section 34ZZZD (allied health exceptional claims payments) are not

covered by this definition.

allied health high cost claim indemnity means an allied health

high cost claim indemnity paid or payable under Division 2C of

Part 2.

Note:

Amounts payable under regulations made for the purposes of

section 34ZZG (allied health high cost claims payments) are not

covered by this definition.

Schedule 6 Allied health professionals

Medical and Midwife Indemnity Legislation Amendment Bill 2019

No. , 2019

allied health high cost claim threshold has the meaning given by

section 34ZZA.

allied health profession means a profession that is:

(a) a health profession within the meaning of the Health

Practitioner Regulation National Law, other than the medical

profession; or

(b) specified in the rules.

allied health termination date means the date, if any, set by rules

under section 34ZZM.

conducted appropriately: a defence of a claim against a person is

conducted appropriately if, and only if:

(a) to the extent it is conducted on the person's behalf by an

insurer, or by a legal practitioner engaged by an insurer--the

defence is conducted to a standard that is consistent with the

insurer's usual standard for the conduct of the defence of

claims; and

(b) to the extent it is conducted by the person, or by a legal

practitioner engaged by the person--the defence is conducted

prudently.

defence, of a claim against a person, includes any settlement

negotiations on behalf of the person.

eligible insurer has the meaning given in section 34ZZ.

eligible MDO has the meaning given in section 34ZZ.

exceptional claims termination date means the date, if any, set by

rules under section 34G.

3 Subsection 4(1) (definition of health professional)

Repeal the definition.

4 Subsection 4(1) (at the end of the definition of indemnity

scheme payment)

Add:

; or (e) an allied health high cost claim indemnity; or

(f) an allied health exceptional claims indemnity.

Allied health professionals Schedule 6

No. , 2019

Medical and Midwife Indemnity Legislation Amendment Bill 2019

5 Subsection 4(1) (after paragraph (ab) of the definition of

late payment penalty)

Insert:

(ac) in relation to a debt owed under section 34ZZZ--means a

penalty payable under section 34ZZZC; and

6 Subsection 4(1) (definition of payment)

Omit "Division 2A", substitute "Divisions 2A and 2D".

7 Subsection 4(1)

Insert:

practitioner's contract limit, in relation to a person for whom a

contract of insurance provides medical indemnity cover, means the

maximum amount payable, in aggregate, by the insurer under the

contract in relation to claims against the person.

Note 1:

If the contract provides medical indemnity cover for more than one

person, there must be a separate contract limit for each of those

persons.

Note 2:

For how this definition applies if the contract provides for deductibles,

see section 8B.

Note 3:

For how this definition interacts with the high cost claim indemnity

scheme and the allied health high cost claim indemnity scheme, see

sections 34D and 34ZZJ.

qualifying allied health claim certificate means a certificate issued

by the Chief Executive Medicare under section 34ZZK.

qualifying allied health liability, in relation to a claim, has the

meaning given by section 34ZZS.

qualifying allied health payment: see subsection 34ZZB(4).

qualifying liability, in relation to a claim, has the meaning given

by section 34M.

qualifying payment: see subsection 30(2).

relevant allied health threshold: see subsection 34ZZL(1).

relevant threshold: see subsection 34F(1).

Schedule 6 Allied health professionals

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8 Subsections 4(3) and (4)

Omit "Division 2A", substitute "Divisions 2A and 2D".

9 Before section 9

Insert:

8B Treatment of deductibles for the exceptional claims indemnity

scheme and the allied health exceptional claims indemnity

scheme

(1) This section applies if, under a contract of insurance that provides

medical indemnity cover for a person (the practitioner), the insurer

is entitled to count an amount (the deductible amount):

(a) incurred by the insurer in relation to a claim against the

practitioner; or

(b) paid or payable by the practitioner or another person in

relation to a claim against the practitioner;

towards the maximum amount payable, in aggregate, under the

contract in relation to claims against the practitioner, even though

the insurer has not paid, and is not liable to pay, the amount under

the contract.

(2) For the purpose of the definition of practitioner's contract limit in

subsection 4(1), the maximum amount payable, in aggregate, under

the contract in relation to claims against the practitioner is as stated

in the contract, even though the insurer (because of the deductible

amount) may not actually be liable to pay the whole of that

maximum amount.

(3) For the purpose of the references in paragraphs 34L(1)(e) and (f)

and 34ZZR(1)(e) and (f) to an amount that an insurer has paid or is

liable to pay under a contract of insurance, the deductible amount

is to be counted as if it were an amount that the insurer has paid or

is liable to pay under the contract.

(4) However, for the purpose of the references in paragraphs 34L(1)(e)

and 34ZZR(1)(e) to an amount that an insurer would have been

liable to pay under a contract of insurance, the deductible amount

is not to be counted as if it were an amount that the insurer would

have been liable to pay under the contract.

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10 Sections 34B and 34C

Repeal the sections.

11 Section 34D

Omit "section 34B", substitute "subsection 4(1)".

12 Paragraph 34E(1)(g)

After "before the", insert "exceptional claims".

13 Subsection 34E(1) (note 2)

After "after the", insert "exceptional claims".

14 Subsection 34F(1)

Omit "For the purposes of subparagraph 34E(1)(e)(ii), the", substitute

"The".

15 Section 34G (heading)

Omit "a termination date", substitute "the exceptional claims

termination date".

16 Subsection 34G(1) (note)

After "after the", insert "exceptional claims".

17 Subsection 34L(1) (notes 1 to 6)

Repeal the notes, substitute:

Note 1:

For how paragraphs (e) and (f) apply:

(a) if there are deductibles--see section 8B; or

(b) if a high cost claim indemnity or a run-off cover indemnity is

paid or payable--see section 34D; or

(d) 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

(e) 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.

Note 2:

For the purpose of subparagraphs (f)(i) and (ii), payments and

liabilities to pay must meet the ordinary course of business

requirement set out in subsection (3).

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18 Subsection 34M(1)

Omit "(1)".

19 Paragraph 34M(1)(b)

Omit "(see subsection (2))".

20 At the end of subsection 34M(1)

Add:

Note:

For paragraph (b), see the definitions of defence and conducted

appropriately in subsection 4(1).

21 Subsections 34M(2) and (3)

Repeal the subsections.

22 Section 34O (heading)

After "which occurred after the", insert "exceptional claims".

23 Paragraph 34O(b)

After "incidents occurred after the", insert "exceptional claims".

24 Section 34O

After "that occurred after the", insert "exceptional claims".

25 Paragraph 34Z(3)(a)

Omit "34M(1)(a)(i)", substitute "34M(a)(i)".

26 After Division 2B of Part 2

Insert:

Division 2C--Allied health high cost claim indemnity

scheme

Subdivision A--Introduction

34ZY Guide to the allied health high cost claim indemnity provisions

(1) This Division provides that an allied health high cost claim

indemnity may be paid to an eligible MDO or eligible insurer that

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pays, or is liable to pay, more than a particular amount (referred to

as the allied health high cost claim threshold) in relation to a

claim against a 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.

(2) This Division also provides for the regulations and rules to deal

with other matters relating to incidents covered by the allied health

high cost claim indemnity scheme.

(3) The following table tells you where to find the provisions dealing

with various issues:

Where to find the provisions on various issues

Item

Issue

Provisions

which MDOs and insurers are

eligible?

section 34ZZ

what is the allied health high cost

claim threshold?

section 34ZZA

what conditions must be satisfied for

an MDO or insurer to get the allied

health high cost claim indemnity?

sections 34ZZB to

34ZZD

what happens if the incidents

occurred during treatment of a public

patient in a public hospital?

paragraph 34ZZD(a)

and section 34ZZE

how much is the allied health high

cost claim indemnity?

section 34ZZF

what regulations can deal with

section 34ZZG

how do MDOs and insurers apply for

the allied health high cost claim

indemnity?

section 36

when will the allied health high cost

claim indemnity be paid?

section 37

what information has to be provided

to the Chief Executive Medicare

about allied health high cost

indemnity matters?

section 38

what records must MDOs and

insurers keep?

section 39

how are overpayments of allied

sections 41 and 42

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Where to find the provisions on various issues

Item

Issue

Provisions

health high cost claim indemnity

recovered?

34ZZ Eligible MDOs and eligible insurers

An MDO is an eligible MDO, or a medical indemnity insurer is an

eligible insurer, if:

(a) it is specified in the rules; and

(b) it is party to contracts of insurance that provide medical

indemnity cover for medical practitioners; and

indemnity cover for persons who practise an allied health

profession.

34ZZA Allied health high cost claim threshold

(1) The allied health high cost claim threshold is:

(a) $2 million; or

(b) such other amount as is specified in the rules.

(2) Rules that specify an amount for the purposes of paragraph (1)(b)

that increases the allied health high cost claim threshold at the time

the rules are registered on the Federal Register of Legislation must

not commence earlier than 12 months after the day on which the

rules are so registered.

Subdivision B--Allied health high cost claim indemnity

34ZZB Circumstances in which allied health high cost claim

indemnity payable

Basic 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

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(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

(i) the incident occurs or occurred; or

(ii) all of the incidents in the series occur or occurred;

in the course of, or in connection with, practice of a kind in

relation to which eligible midwives are ordinarily, or could

reasonably be expected in the ordinary course of business to

be, engaged as employees (and therefore indemnified from

liability by their employer); 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:

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(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.

(2) Any rules made for the purposes of subsection 11(3A) of the

Midwife Professional Indemnity (Commonwealth Contribution)

Scheme Act 2010 apply for the purposes of determining whether

practice is of a kind mentioned in paragraph (1)(c).

(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

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(i) pays, or becomes liable to pay, the amount in the

ordinary course of the MDO's or the insurer's business;

(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.

34ZZC Aggregating amounts paid or payable by an MDO and

insurer

(1) This section applies if:

(a) 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

in respect of the insurer amount:

(i) would be payable to the insurer under

subsection 34ZZB(1); or

(ii) would be payable to the insurer under that subsection if

paragraph 34ZZB(1)(h) were omitted; and

(d) the insurer elects in writing to have this section apply to the

insurer amount.

(2) For the purposes of this Division (other than this section):

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(a) the MDO is taken:

(i) to have paid, or to be liable to pay, the insurer amount in

relation to the claim or eligible related claim; and

(ii) to satisfy paragraphs 34ZZB(1)(g) and (4)(a) to (c) in

relation to the insurer amount; and

(iii) 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

(b) an allied health high cost claim indemnity is not payable to

the insurer in respect of the insurer amount.

34ZZD Exceptions

An allied health high cost claim indemnity is not payable to an

MDO or insurer under section 34ZZB in relation to a payment the

MDO or insurer makes, or is liable to make, in relation to a claim

against a person if:

(a) the incident, or all the incidents, to which the claim relates

occurred in the course of the provision of treatment to a

public patient in a public hospital; or

(b) the claim is specified in the rules; or

34ZZE Payment partly related to treatment of public patient in

public hospital

(1) This section applies if:

(a) 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

(b) some, but not all, of the incidents occurred in the course of

the provision of treatment to a public patient in a public

hospital.

(2) For the purposes of this Subdivision, 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.

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34ZZF Amount of allied health high cost claim indemnity

(1) The amount of an allied health high cost claim indemnity is:

(a) 50%; or

(b) 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.

(2) Rules that specify for the purposes of paragraph (1)(b) a percentage

that is less than the percentage in force at the time the rules are

registered on the Federal Register of Legislation must not

commence earlier than 12 months after the day on which the rules

are so registered.

Subdivision C--Regulations may provide for payments

34ZZG Regulations may provide for payments in relation to allied

health high cost claims

(1) The regulations may provide in relation to:

(a) making payments to eligible MDOs and eligible insurers of

claim handling fees; and

(b) 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).

(2) Without limiting subsection (1), the regulations may:

(a) make provision for:

(i) the conditions that must be satisfied for an amount to be

payable to an eligible MDO or eligible insurer; and

(ii) the amount that is payable; and

(iii) the conditions that must be complied with by an eligible

MDO or eligible insurer to which an amount is paid;

and

(iv) other matters related to the making of payments, and the

recovery of overpayments; and

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(b) 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

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.

(3) Paragraph (2)(b) does not allow the regulations to modify a

provision that creates an offence, or that imposes an obligation

which, if contravened, constitutes an offence.

(4) It does not matter for the purposes of paragraph (2)(c) whether

claims are subsequently made in relation to the incidents referred

to in that paragraph.

34ZZH The Chief Executive Medicare may request information

(1) If the Chief Executive Medicare believes that a person is capable

of giving information that is relevant to determining:

(a) whether an MDO or insurer is entitled to a payment under

regulations made for the purposes of section 34ZZG; or

(b) 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.

Note:

Failure to comply with the request is an offence (see section 45).

(2) Without limiting subsection (1), any of the following persons may

be requested to give information under that subsection:

(a) an eligible MDO;

(b) an eligible insurer;

(d) a person who practises, or used to practise, an allied health

profession;

(e) a person who is acting, or has acted, on behalf of a person

covered by paragraph (d);

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(f) a legal personal representative of a person covered by

paragraph (c), (d) or (e).

(3) Without limiting subsection (1), if the information sought by the

Chief Executive Medicare is information relating to a matter in

relation to which a person is required by section 39 to keep a

record, the Chief Executive Medicare may request the person to

give the information by giving the Chief Executive Medicare the

record, or a copy of the record.

(4) The request:

(a) must be made in writing; and

(b) must state what information must be given to the Chief

Executive Medicare; and

declaration; and

(d) must specify a day on or before which the information must

be given; and

(e) 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.

Division 2D--Allied health exceptional claims indemnity

scheme

Subdivision A--Introduction

34ZZI Guide to the allied health exceptional claims indemnity

provisions

(1) This Division provides that an allied health exceptional claims

indemnity may be paid in relation to a liability of a person if:

(a) 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

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(b) 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.

(2) This Division also provides for the regulations and rules to deal

with other matters relating to claims that have been certified as

qualifying allied health claims.

(3) The following table tells you where to find the provisions dealing

with various issues:

Where to find the provisions on various issues

Item

Issue

Provisions

which insurers are eligible insurers?

section 34ZZ

certification of claims that qualify for

allied health exceptional claims

indemnity (including the threshold

requirement for the insurance

contract)

sections 34ZZK to

34ZZQ

when is an allied health exceptional

claims indemnity payable in respect

of a liability?

sections 34ZZR and

34ZZS

some liabilities are only partly

covered

sections 34ZZT and

34ZZU

how much allied health exceptional

claims indemnity is payable?

section 34ZZV

how must an allied health exceptional

claims indemnity be applied?

section 34ZZW

who is liable to repay an

overpayment of allied health

exceptional claims indemnity?

section 34ZZX

what if a payment is received that

would have reduced the amount of an

insurance payment?

sections 34ZZY to

34ZZZC

what regulations can deal with

section 34ZZZD

modifications and exclusions by

regulations

section 34ZZZF

how does a person apply for an allied

health exceptional claims indemnity?

section 37A

when will an allied health exceptional section 37B

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Where to find the provisions on various issues

Item

Issue

Provisions

claims indemnity be paid?

what information has to be provided

to the Chief Executive Medicare

about allied health exceptional claims

matters?

section 38

what records must be kept in relation

to allied health exceptional claims

matters?

section 39

how are overpayments of allied

health exceptional claims indemnity

recovered?

sections 41 and 42

34ZZJ Interaction with allied health high cost claim indemnity

scheme

For the purposes of the definition of practitioner's contract limit in

subsection 4(1), and of paragraphs 34ZZR(1)(e) and (f), an amount

that an insurer has paid or is liable to pay, or would have been

liable to pay, under a contract of insurance is not to be reduced on

account of an allied health high cost claim indemnity paid or

payable, or that would have been payable, to the insurer.

Subdivision B--Certification of qualifying allied health claims

34ZZK When may the Chief Executive Medicare certify a claim as a

qualifying allied health claim?

Criteria for certification

(1) The Chief Executive Medicare may issue a certificate stating that a

claim is a qualifying allied health claim if the Chief Executive

Medicare is satisfied that:

(a) the claim is a claim that 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;

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in the course of, or in connection with, the practice by the

practitioner of an allied health profession; and

(i) the incident occurs or occurred; or

(ii) all of the incidents in the series occur or occurred;

in the course of, or in connection with, practice of a kind in

relation to which eligible midwives are ordinarily, or could

reasonably be expected in the ordinary course of business to

be, engaged as employees (and therefore indemnified from

liability by their employer); and

(d) except in the circumstances specified in rules made for the

purposes of this paragraph, either:

(i) the incident occurs or occurred; or

(ii) one or more of the incidents in the series occurs or

occurred;

in Australia or 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 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

(g) there is a contract of insurance in relation to which the

following requirements are satisfied:

(i) 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;

(ii) the practitioner's contract limit equals or exceeds the

relevant allied health threshold (see section 34ZZL);

(iii) the insurer is an eligible insurer;

(iv) the insurer entered into the contract in the ordinary

course of the insurer's business; and

(h) 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

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(i) the claim is not a claim specified in rules made for the

purposes of this paragraph; and

(j) the contract of insurance is not a contract specified in rules

made for the purposes of this paragraph; and

(k) a person has applied for the certificate in accordance with

section 34ZZN; and

(l) 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.

Note 1:

Paragraph (f)--for what happens if some, but not all, of the incidents

in a series occur in the course of the provision of treatment to a public

patient in a public hospital, see section 34ZZT.

Note 2:

Paragraph (h)--for what happens if some, but not all, of the incidents

in a series occur after the allied health termination date, see

section 34ZZU.

(2) Any rules made for the purposes of subsection 11(3A) of the

Midwife Professional Indemnity (Commonwealth Contribution)

Scheme Act 2010 apply for the purposes of determining whether

practice is of a kind mentioned in paragraph (1)(c).

When a certificate is in force

(3) The certificate comes into force when it is issued and remains in

force until it is revoked.

Matters to be identified or specified in certificate

(4) The certificate must:

(a) identify:

(i) the practitioner; and

(ii) the claim; and

(iii) the contract of insurance in relation to which

paragraph (1)(g) is satisfied; and

(b) specify the relevant allied health threshold.

The certificate may also contain other material.

AAT review of decision to refuse

(5) Applications may be made to the Administrative Appeals Tribunal

for review of decisions of the Chief Executive Medicare to refuse

to issue a qualifying allied health claim certificate.

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Note:

Section 27A of the Administrative Appeals Tribunal Act 1975 requires

notification of a decision that is reviewable.

Chief Executive Medicare to give applicant copy of certificate

(6) If the Chief Executive Medicare decides to issue a qualifying allied

health claim certificate, the Chief Executive Medicare must, within

28 days of making the decision, give the applicant a copy of the

certificate. However, a failure to comply does not affect the

validity of the decision.

34ZZL What is the relevant allied health threshold?

The relevant allied health threshold

(1) The relevant allied health threshold is $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

(2) A rule specifying an amount as the threshold (or changing the

amount previously so specified) only applies in relation to

contracts of insurance entered into after the rule commences.

When rules reducing the threshold commence

(3) A rule reducing the threshold (which could be the threshold

originally applicable under subsection (1), or that threshold as

already changed by rules) commences on the date specified in the

rules, which must be the date on which the rules are registered on

the Federal Register of Legislation or a later day.

When rules increasing the threshold commence

(4) A rule increasing the threshold (which could be the threshold

originally applicable under subsection (1), or that threshold as

already changed by rules), commences on the date specified in the

rules, which must be at least 3 months after the date on which the

rules are registered on the Federal Register of Legislation.

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34ZZM Setting the allied health termination date

(1) The rules may set a termination date for the allied health

exceptional claims indemnity scheme.

Note:

The scheme does not cover incidents that occur after the allied health

termination date (see paragraph 34ZZK(1)(h) and section 34ZZU).

(2) The termination date cannot be before the date on which the rules

are registered on the Federal Register of Legislation.

34ZZN Application for a qualifying allied health claim certificate

(1) An application for the issue of a qualifying allied health claim

certificate in relation to a claim may be made by the person against

whom the claim is or was made, or by a person acting on that

person's behalf.

(2) The application must:

(a) be made in writing using a form approved by the Chief

Executive Medicare; and

(b) be accompanied by the documents and other information

required by the form approved by the Chief Executive

Medicare.

34ZZO Time by which an application must be decided

(1) Subject to subsections (2) and (3), the Chief Executive Medicare is

to decide an application for the issue of a qualifying allied health

claim certificate on or before the 21st day after the day on which

the application is received by the Chief Executive Medicare.

(2) If the Chief Executive Medicare requests a person to give

information under section 38 in relation to the application, the

Chief Executive Medicare does not have to decide the application

until the 21st day after the day on which the person gives the

information to the Chief Executive Medicare.

(3) The Chief Executive Medicare may treat an application as having

been withdrawn if:

(a) the Chief Executive Medicare requests the person who

applied for the certificate to give information under

section 38 in relation to the application; and

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(b) the person does not give the information to the Chief

Executive Medicare by the end of the day specified in the

request.

(4) The Chief Executive Medicare must notify the person who applied

for the certificate if the Chief Executive Medicare treats the

application as having been withdrawn.

34ZZP Obligation to notify the Chief Executive Medicare if

information is incorrect or incomplete

(1) If:

(a) a qualifying allied health claim certificate is in force in

relation to a claim; and

(b) 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

(i) the person who applied for the certificate; or

(ii) 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.

Note:

Failure to notify is an offence (see section 46).

(2) The notification must:

(a) be made in writing; and

(b) be given to the Chief Executive Medicare within 28 days

after the person becomes aware as mentioned in

subsection (1).

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34ZZQ Revocation and variation of qualifying allied health claim

certificates

Revocation

(1) The Chief Executive Medicare may revoke a qualifying allied

health claim certificate if the Chief Executive Medicare is no

longer satisfied as mentioned in subsection 34ZZK(1) in relation to

the claim.

(2) To avoid doubt, in considering whether the Chief Executive

Medicare is still satisfied as mentioned in subsection 34ZZK(1) in

relation to the claim, the Chief Executive Medicare may have

regard to matters that have occurred since the decision to issue the

qualifying allied health claim certificate was made, including for

example:

(a) the making of rules for the purpose of paragraph 34ZZK(1)(i)

or (j); or

(b) changes to the terms and conditions of the contract of

insurance identified in the certificate.

Variation

(3) If the Chief Executive Medicare is satisfied that a matter is not

correctly identified or specified in a qualifying allied health claim

certificate, the Chief Executive Medicare may vary the certificate

so that it correctly identifies or specifies the matter.

Effect of revocation

(4) If:

(a) the Chief Executive Medicare revokes a qualifying allied

health claim certificate; and

(b) 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

(5) If:

(a) the Chief Executive Medicare varies a qualifying allied

health claim certificate; and

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(b) 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.

AAT review of decision to revoke or vary

(6) Applications may be made to the Administrative Appeals Tribunal

for review of decisions of the Chief Executive Medicare to revoke

or vary a qualifying allied health claim certificate.

Note:

Section 27A of the Administrative Appeals Tribunal Act 1975 requires

notification of a decision that is reviewable.

Chief Executive Medicare to give applicant copy of varied

certificate

(7) If the Chief Executive Medicare decides to vary a qualifying allied

health claim certificate, the Chief Executive Medicare must, within

28 days of making the decision, give the applicant a copy of the

varied certificate. However, a failure to comply does not affect the

validity of the decision.

Subdivision C--Allied health exceptional claims indemnity

34ZZR When is an allied health exceptional claims indemnity

payable?

Criteria for payment of indemnity

(1) The Chief Executive Medicare may decide that an allied health

exceptional claims indemnity is payable in relation to a liability of

a person (the practitioner) if:

(a) a claim for compensation or damages (the current claim) is,

or was, made against the practitioner by another person; and

(b) a qualifying allied health claim certificate is in force in

relation to the current claim; and

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practitioner in relation to the current claim (see

section 34ZZS); and

(d) 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

(e) 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

(f) the aggregate of:

(i) the amount (if any) the insurer has paid, or is liable to

pay, in relation to the liability under the contract of

insurance; and

(ii) 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

(iii) 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

(g) a person has applied for the indemnity in accordance with

section 37A.

Note 1:

For how paragraphs (e) and (f) apply:

(a) if there are deductibles--see section 8B; or

(b) if an allied health high cost claim indemnity is paid or payable--

see section 34ZZJ; or

(d) 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

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(e) 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.

Note 2:

For the purpose of subparagraphs (f)(i) and (ii), payments and

liabilities to pay must meet the ordinary course of business

requirement set out in subsection (5).

(2) For the purposes of subparagraph (1)(f)(iii), an incident or series of

related incidents is covered by this subsection if the incident occurs

or occurred, or the series of related incidents all occur or occur:

(a) on or after 1 July 2020; and

(b) in the course of, or in connection with:

(i) practice by the practitioner of an allied health profession

other than midwifery; or

(ii) practice by the practitioner of midwifery, if the practice

is of a kind in relation to which eligible midwives are

ordinarily, or could reasonably be expected in the

ordinary course of business to be, engaged as employees

(and therefore indemnified from liability by their

employer).

(3) Any rules made for the purposes of subsection 11(3A) of the

Midwife Professional Indemnity (Commonwealth Contribution)

Scheme Act 2010 apply for the purposes of determining whether

practice is of a kind mentioned in subparagraph (2)(b)(ii).

Who the indemnity is payable to

(4) The indemnity is to be paid to the person who applies for it.

Note:

For who can apply, see section 37A.

Ordinary course of business test for insurance payments

(5) An amount that an insurer has paid, or is liable to pay, under a

contract of insurance does not count for the purpose of

subparagraph (1)(f)(i) or (ii) unless it is an amount that the insurer

paid, or is liable to pay, in the ordinary course of the insurer's

business.

What if the insurer is a Chapter 5 body corporate?

(6) If an insurer is a Chapter 5 body corporate:

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(a) 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

(b) 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.

AAT review of decision to refuse, or to pay a particular amount of

indemnity

(7) Applications may be made to the Administrative Appeals Tribunal

for review of the following decisions of the Chief Executive

Medicare:

(a) a decision to refuse an application for allied health

exceptional claims indemnity;

(b) a decision to pay a particular amount of allied health

exceptional claims indemnity.

Note:

Section 27A of the Administrative Appeals Tribunal Act 1975 requires

notification of a decision that is reviewable.

34ZZS Qualifying allied health liabilities

A person (the practitioner) has a qualifying allied health liability

in relation to a claim made against the person if:

(a) one of the following applies:

(i) the liability is under a judgment or order of a court in

relation to the claim, being a judgment or order that is

not stayed and is not subject to appeal;

(ii) the liability is under a settlement of the claim that takes

the form of a written agreement between the parties to

the claim;

(iii) the liability is some other kind of liability of the

practitioner (for example, a liability to legal costs) that

relates to the claim; and

(b) the defence of the claim against the practitioner was

conducted appropriately up to the time when:

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(i) if the liability is under a judgment or order of a court--

the date on which the judgment or order became a

judgment or order that is not stayed and is not subject to

appeal; or

(ii) if the liability is under a settlement of the claim--the

date on which the settlement agreement was entered

into; or

(iii) if the liability is some other kind of liability--the date

on which the liability was incurred; and

consent order made by a court--a legal practitioner has given

a statutory declaration certifying that the amount of the

liability is reasonable.

Note:

For paragraph (b), see the definitions of defence and conducted

appropriately in subsection 4(1).

34ZZT Treatment of a claim that partly relates to a public patient in

a public hospital

If:

(a) a claim against a person relates to a series of incidents; and

(b) some, but not all, of the incidents occurred in the course of

the provision of treatment to a public patient in a public

hospital;

then, for the purposes of applying paragraph 34ZZR(1)(e) and

subparagraphs 34ZZR(1)(f)(i) and (ii) in relation to the claim, an

amount that an insurer has paid or is liable to pay, or would have

been liable to pay, in relation to the claim, is to be reduced by the

extent (if any) to which the amount relates or would relate to, or is

or would be 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.

34ZZU Treatment of a claim that relates to a series of incidents

some of which occurred after the allied health

termination date

If:

(a) a claim against a person relates to a series of incidents; and

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(b) some, but not all, of the incidents occurred after the allied

health termination date;

then, for the purposes of applying paragraph 34ZZR(1)(e) and

subparagraphs 34ZZR(1)(f)(i) and (ii) in relation to the claim, an

amount that an insurer has paid or is liable to pay, or would have

been liable to pay, in relation to the claim, is to be reduced by the

extent (if any) to which the amount relates or would relate to, or is

or would be reasonably attributable to, the incident or incidents

that occurred after the allied health termination date.

34ZZV The amount of allied health exceptional claims indemnity

that is payable

The amount of allied health exceptional claims indemnity that is

payable in relation to a particular qualifying allied health liability is

the amount of the excess referred to in paragraph 34ZZR(1)(e).

Note:

It is only liabilities that exceed the practitioner's contract limit that

will be covered by an allied health exceptional claims indemnity (even

if the relevant allied health threshold is less than that limit).

34ZZW How allied health exceptional claims indemnity is to be

applied

(1) This section applies if an allied health exceptional claims

indemnity is paid to a person (the recipient) in relation to a liability

of a person (the practitioner).

Note:

The recipient will either be the practitioner, or a person acting on

behalf of the practitioner.

Chief Executive Medicare to give recipient of payment a notice

identifying the liability to be discharged

(2) The Chief Executive Medicare must give the recipient a written

notice (the payment notice) identifying the liability in relation to

which the indemnity is paid, and advising the recipient how this

section requires the indemnity to be dealt with.

Recipient's obligation if the amount of the indemnity equals or is

less than the liability

(3) If the amount of the indemnity equals or is less than the

undischarged amount of the liability identified in the payment

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notice, the recipient must apply the whole of the indemnity towards

the discharge of the liability.

Recipient's obligation if the amount of the indemnity exceeds the

liability

(4) If the amount of the indemnity is greater than the undischarged

amount of the liability identified in the payment notice, the

recipient must:

(a) apply so much of the indemnity as equals the undischarged

amount of the liability towards the discharge of the liability;

and

(b) 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

(5) The recipient must comply with whichever of subsections (3) and

(4) applies:

(a) 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

(b) 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

(6) If the recipient does not comply with whichever of subsections (3)

and (4) applies by the time required by subsection (5), the amount

of the indemnity is a debt due to the Commonwealth.

(7) The debt may be recovered:

(a) by action by the Chief Executive Medicare against the

recipient in a court of competent jurisdiction; or

(b) under section 42.

(8) If the amount of the indemnity is recoverable, or has been

recovered, as mentioned in subsection (7), no amount is

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recoverable under section 34ZZZ or section 41 in relation to the

same payment of allied health exceptional claims indemnity.

34ZZX Who is liable to repay an overpayment of allied health

exceptional claims indemnity?

(1) This section applies if, in relation to an allied health exceptional

claims indemnity that has been paid, there is an amount overpaid as

described in subsection 34ZZZ(2) or 41(2).

(2) The liable person, in relation to the amount overpaid, is:

(a) 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

(b) if the indemnity has been dealt with in accordance with

whichever of those subsections applies--the practitioner

referred to in subsection 34ZZW(1).

Note:

The recipient and the practitioner will be the same person if the

indemnity was paid to the practitioner.

(3) If:

(a) the recipient and the practitioner referred to in

subsection 34ZZW(1) are not the same person; and

(b) 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

34ZZY Amounts paid before payment of allied health exceptional

claims indemnity

(1) If:

(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

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(b) 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 amount of the insurance payment; and

(d) 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.

(2) This section does not apply to any of the following:

(a) an amount paid to an insurer by another insurer under a right

of contribution;

(b) a payment of allied health high cost claim indemnity;

this paragraph.

34ZZZ Amounts paid after payment of allied health exceptional

claims indemnity

(1) This section applies if:

(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

(b) 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 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

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zero) of allied health exceptional claims indemnity would

have been paid in relation to the liability.

(2) The amount overpaid is the amount by which the actual indemnity

amount exceeds the reduced indemnity amount.

(3) If the Chief Executive Medicare has given the liable person (see

subsection 34ZZX(2)) a notice under subsection 34ZZZB(1) in

relation to the amount overpaid, the amount is a debt owed to the

Commonwealth by the liable person.

Note 1:

If the indemnity is or was not dealt with in accordance with whichever

of subsections 34ZZW(3) and (4) applies by the time required by

subsection 34ZZW(5), the whole amount of the indemnity is a debt

owed by the recipient, and no amount is recoverable under this section

(see subsections 34ZZW(6) to (8)).

Note 2:

If:

(a) the recipient and the practitioner referred to in

subsection 34ZZW(1) are not the same person; and

(b) 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.

(4) The amount overpaid may be recovered:

(a) by action by the Chief Executive Medicare against the liable

person in a court of competent jurisdiction; or

(b) under section 42.

(5) This section does not apply to any of the following:

(a) an amount paid to an insurer by another insurer under a right

of contribution;

(b) a payment of allied health high cost claim indemnity;

this paragraph.

34ZZZA Obligation to notify the Chief Executive Medicare that

amount has been paid

(1) If:

(a) an amount of allied health exceptional claims indemnity has

been paid in relation to a qualifying allied health liability that

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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

amount overpaid as described in subsection 34ZZZ(2);

the applicant must notify the Chief Executive Medicare that the

other amount has been paid.

Note:

Failure to notify is an offence (see section 46).

(2) The notification must:

(a) be in writing; and

(b) be given to the Chief Executive Medicare within 28 days

after the applicant becomes aware that the other amount has

been paid.

34ZZZB The Chief Executive Medicare to notify of amount of debt

due

(1) If:

(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) 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

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:

(d) the amount overpaid, and that it is a debt owed to the

Commonwealth under subsection 34ZZZ(3); and

(e) the day before which the amount must be paid to the

Commonwealth; and

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(f) 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.

(2) The debt becomes due and payable on the day specified under

paragraph (1)(e).

34ZZZC Penalty imposed if an amount is repaid late

(1) If:

(a) a person owes a debt to the Commonwealth under

subsection 34ZZZ(3); and

(b) 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.

(2) The late payment penalty is calculated:

(a) at the rate specified in the rules for the purposes of this

paragraph; and

(b) on the unpaid amount; and

(i) 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.

(3) The Chief Executive Medicare may remit the whole or a part of an

amount of late payment penalty if the Chief Executive Medicare

considers that there are good reasons for doing so.

(4) Applications may be made to the Administrative Appeals Tribunal

for review of decisions of the Chief Executive Medicare not to

remit, or to remit only part of, an amount of late payment penalty.

Note:

Section 27A of the Administrative Appeals Tribunal Act 1975 requires

notification of a decision that is reviewable.

(5) If:

(a) the recipient and the practitioner referred to in

subsection 34ZZW(1) are not the same person; and

(b) the practitioner becomes the liable person; and

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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

34ZZZD Regulations may provide for payments in relation to allied

health exceptional claims

(1) The regulations may provide in relation to making payments to

eligible insurers of claim handling fees, and payments on account

of legal, administrative or other costs incurred by eligible insurers

(whether on their own behalf or otherwise), in respect of claims in

relation to which qualifying allied health claim certificates have

been issued.

(2) Without limiting subsection (1), the regulations may:

(a) make provision for:

(i) the conditions that must be satisfied for an amount to be

payable to an eligible insurer; and

(ii) the amount that is payable; and

(iii) the conditions that must be complied with by an eligible

insurer to which an amount is paid; and

(iv) other matters related to the making of payments, and the

recovery of overpayments; and

(b) 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

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.

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(3) Paragraph (2)(b) does not allow the regulations to modify a

provision that creates an offence, or that imposes an obligation

which, if contravened, constitutes an offence.

(4) It does not matter for the purposes of paragraph (2)(c) whether

claims are subsequently made in relation to the incidents referred

to in that paragraph.

34ZZZE The Chief Executive Medicare may request information

(1) If the Chief Executive Medicare believes that a person is capable

of giving information that is relevant to determining:

(a) whether an insurer is entitled to a payment under regulations

made for the purposes of section 34ZZZD; or

(b) 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.

Note:

Failure to comply with the request is an offence (see section 45).

(2) Without limiting subsection (1), any of the following persons may

be requested to give information under that subsection:

(a) an MDO;

(b) an eligible insurer;

(d) a person who practises, or used to practise, an allied health

profession;

(e) a person who is acting, or has acted, on behalf of a person

covered by paragraph (d);

(f) a legal personal representative of a person covered by

paragraph (c), (d) or (e).

(3) Without limiting subsection (1), if the information sought by the

Chief Executive Medicare is information relating to a matter in

relation to which a person is required by section 39 to keep a

record, the Chief Executive Medicare may request the person to

give the information by giving the Chief Executive Medicare the

record, or a copy of the record.

(4) The request:

(a) must be made in writing; and

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(b) must state what information must be given to the Chief

Executive Medicare; and

declaration; and

(d) must specify a day on or before which the information must

be given; and

(e) 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

34ZZZF Modifications and exclusions

(1) The regulations may provide that this Division applies with

specified modifications in relation to:

(a) a specified class of claims; or

(b) a specified class of contracts of insurance; or

wholly or partly, covered by more than one contract of

insurance.

Note:

For the capacity for rules to exclude claims and contracts of insurance,

see paragraphs 34ZZK(1)(i) and (j).

(2) The regulations may provide that this Division does not apply, or

applies with specified modifications, in relation to a specified class

of liabilities or payments.

(3) Without limiting subsection (2), the regulations may specify

modifications regarding how this Division applies in relation to a

liability under an order of a court requiring an amount to be paid

pending the outcome of an appeal, including modifications:

(a) 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

(b) 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

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towards a liability that is confirmed as a result of the appeal

or another appeal.

(4) This section does not allow the regulations to modify a provision

that creates an offence, or that imposes an obligation which, if

contravened, constitutes an offence.

27 Subsection 35(1)

Omit "and the run-off cover indemnity scheme", substitute ", the

run-off cover indemnity scheme, the allied health high cost claim

indemnity scheme and the allied health exceptional claims indemnity

scheme".

28 Section 36 (heading)

Omit "or run-off cover indemnity", substitute ", run-off cover

indemnity or allied health high cost claim indemnity".

29 Section 36

Omit "or a run-off cover indemnity", substitute ", a run-off cover

indemnity or an allied health high cost claim indemnity".

30 Section 37 (heading)

Omit "or run-off cover indemnity", substitute ", run-off cover

indemnity or allied health high cost claim indemnity".

31 Subsection 37(1)

Omit "or a run-off cover indemnity", substitute ", a run-off cover

indemnity or an allied health high cost claim indemnity".

32 Paragraphs 37(2)(a) and (d)

Omit "or a run-off cover indemnity", substitute ", a run-off cover

indemnity or an allied health high cost claim indemnity".

33 Subsection 37(2)

Omit "or the run-off cover indemnity", substitute ", the run-off cover

indemnity or the allied health high cost claim indemnity".

34 Section 37A (at the end of the heading)

Add "or allied health exceptional claims indemnity".

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35 After subsection 37A(1)

Insert:

(1A) An application for an allied health exceptional claims indemnity in

relation to a qualifying allied health liability that relates to a claim

may be made by the person against whom the claim is or was

made, or by a person acting on that person's behalf.

36 Subsection 37A(2)

Omit "The application", substitute "An application under subsection (1)

or (1A)".

37 Subsection 37A(3)

Omit "subsections (4) and (5)", substitute "subsection (5)".

38 Subsection 37A(4)

Repeal the subsection.

39 Section 37B (at the end of the heading)

Add "or allied health exceptional claims indemnity".

40 Subsections 37B(1) and (2)

After "exceptional claims indemnity", insert "or an allied health

exceptional claims indemnity".

41 Subsection 37B(3)

Repeal the subsection, substitute:

(3) If the Chief Executive Medicare has received, but not yet decided:

(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.

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42 Subsection 37B(4)

After "exceptional claims indemnity", insert "or an allied health

exceptional claims indemnity".

43 Paragraph 38(1)(c)

After "qualifying claim certificate", insert "or qualifying allied health

claim certificate".

44 Paragraph 39(1)(c)

Omit "or 34ZJ", substitute ", 34ZJ or 34ZZZ".

45 Subsection 39(1A) (at the end of the heading)

Add "or qualifying allied health claim certificate".

46 Subsection 39(1A)

After "qualifying claim certificate", insert "or a qualifying allied health

claim certificate".

47 Paragraph 39(1A)(a)

After "subsection 34E(1)", insert "or 34ZZK(1)".

48 Paragraph 41(3)(a)

Omit "or a run-off cover indemnity", substitute ", a run-off cover

indemnity or an allied health high cost claim indemnity".

49 After paragraph 41(3)(b) (before note 1)

Insert:

; or (c) if the indemnity scheme payment was an allied health

exceptional claims indemnity--the person who is the liable

person under subsection 34ZZX(2).

50 Subsection 41(3) (notes 1 and 2)

Repeal the notes, substitute:

Note 1:

For paragraphs (b) and (c), if the exceptional claims indemnity or

allied health exceptional claims indemnity is not dealt with as required

by section 34Q or 34ZZW, the whole amount of the indemnity is a

debt owed by the recipient, and no amount is recoverable under this

section (see subsections 34Q(6) to (8) and 34ZZW(6) to (8)).

Note 2:

For paragraphs (b) and (c), if:

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(a) the recipient and the practitioner are not the same person; and

(b) 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.

51 Paragraph 41(4)(b)

Omit "or a run-off cover indemnity", substitute ", a run-off cover

indemnity or an allied health high cost claim indemnity".

52 Subsection 42(1)

Omit "24(4) 34Q(6), 34T(3), 34ZJ(3)", substitute "24(4), 34Q(6),

34T(3), 34ZJ(3), 34ZZW(6), 34ZZZ(3)".

53 Paragraph 42(3A)(a)

After "exceptional claims indemnity", insert "or an allied health

exceptional claims indemnity".

54 Paragraph 42(3A)(b)

After "subsection 34Q(1)", insert "or 34ZZW(1)".

55 After paragraph 45(1)(bb)

Insert:

(bc) subsection 34ZZH(1); or

(bd) subsection 34ZZZE(1); or

56 Subsection 46(1)

Omit "or 34ZU", substitute ", 34ZU, 34ZZP or 34ZZZA".

57 Subsection 46(3)

Omit "or 34ZK(1)(b)", substitute ", 34ZK(1)(b), 34ZZP(1)(b) or

34ZZZA(1)(b)".

Medical Indemnity (Prudential Supervision and Product

Standards) Act 2003

58 After paragraph 20(aa)

Insert:

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(ab) any right the insurer may have to an allied health high cost

claim indemnity under the Medical Indemnity Act 2002;

59 Application and transitional

Exceptional claims indemnity scheme

(1)

The amendments of Part 1 and Division 2A of Part 2 of the Medical

Indemnity Act 2002 made by this Schedule apply in relation to any

claim made after the commencement of this item.

Administration of the indemnity schemes

(2)

The amendments of section 41 of the Medical Indemnity Act 2002 made

by this Schedule apply in relation to any amount paid by way of an

indemnity scheme payment, whether paid before or after the

commencement of this item.

(3)

The amendments of section 42 of the Medical Indemnity Act 2002 made

by this Schedule do not affect a direction by the Chief Executive

Medicare under that section before the commencement of this item.

Product standards for medical indemnity insurance contracts

(4)

The amendments of section 20 of the Medical Indemnity (Prudential

Supervision and Product Standards) Act 2003 made by this Schedule

apply in relation to any contract of insurance, whether the contract is

entered into, comes into effect or is renewed before, on or after the

commencement of this item.

Commonwealth of Australia Bills

MEDICAL AND MIDWIFE INDEMNITY LEGISLATION AMENDMENT BILL 2019