41Recovery of overpayments

#### 41 Recovery of overpayments (1) This section applies if an amount is paid by way of an indemnity scheme payment and: (a) the amount of indemnity scheme payment is not payable; or (b) the amount paid is greater than the amount of the indemnity scheme payment that was payable. (2) The amount overpaid is: (a) the whole of the amount paid if paragraph (1)(a) applies; or (b) the difference between the amount that was paid and the amount that was payable if paragraph (1)(b) applies. (3) The amount overpaid is a debt due to the Commonwealth by the liable person. For this purpose the liable person is: (a) if the indemnity scheme payment was an IBNR indemnity, a high cost claim indemnity, a run‑off cover indemnity or an allied health high cost claim indemnity—the MDO or insurer to which the payment was made; or (b) if the indemnity scheme payment was an exceptional claims indemnity—the person who is the liable person under subsection 34R(2); 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). > 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: (a) the recipient and the practitioner are not the same person; and (b) the practitioner becomes the liable person; > Note: 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. (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) by deduction from the amount of an IBNR indemnity, a high cost claim indemnity, a run‑off cover indemnity or an allied health high cost claim indemnity payable to the liable person; or (c) under section 42. The total amount recovered must not exceed the amount overpaid.