16IBNR indemnity for payment made by MDO or insurer

#### 16 IBNR indemnity for payment made by MDO or insurer Basic payability rule (1) An IBNR indemnity is payable to an MDO or insurer under this section if: (a) the MDO or insurer makes a payment in relation to a claim against or by a person (the practitioner); and (b) the claim relates to: (i) an incident that is covered by the IBNR indemnity scheme (see section 14); or (ii) a series of related incidents that includes an incident that is covered by the scheme; and (c) the practitioner had, on 30 June 2002, incident‑occurring based cover with the participating MDO for the incident that is covered by the IBNR indemnity scheme; and (d) if it is an MDO that makes the payment—the MDO makes the payment: (i) consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and (ii) in the ordinary course of its business; and (e) if it is an insurer that makes the payment—the insurer makes the payment: (i) consistently with the terms of the insurance contract between the insurer and the practitioner; and (ii) in the ordinary course of its business; and (f) the MDO or insurer applies to the Chief Executive Medicare for the IBNR indemnity in accordance with section 36. (2) Subsection (1) has effect subject to: (a) subsections (5) and (6) of this section; and (b) subsection 15(3); and (c) sections 19 and 20. Basis on which payment made (3) The IBNR indemnity is payable to the MDO or insurer regardless of the basis on which the payment is made by the MDO or insurer. > Note: If the criteria for the indemnity set out in subsection (1) are met, the indemnity may be payable to the MDO or insurer even if the MDO or insurer pays the practitioner on the basis of claims made cover the practitioner has with the MDO or insurer. Payer need not be the participating MDO (4) If the payment is made by an MDO, the MDO that makes the payment may be the participating MDO or may be a different MDO. Payment by participating MDO (5) If the payment is made by the participating MDO, the IBNR indemnity is payable only if the participating MDO: (a) makes the payment; or (b) could have made the payment; in relation to the claim in relation to the incident covered by the IBNR indemnity scheme on the basis of incident‑occurring based cover the practitioner had with the participating MDO for the incident on 30 June 2002. Payment by someone else (6) If the payment is not made by the participating MDO, the IBNR indemnity is payable only if the participating MDO could have made the payment in relation to the claim in relation to the incident covered by the IBNR indemnity scheme: (a) consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and (b) in the ordinary course of its business; and (c) on the basis of incident‑occurring based cover the practitioner had with the participating MDO on 30 June 2002; if the practitioner made a proper claim in relation to the incident.