16When is a Level 1 Commonwealth contribution payable?

16 When is a Level 1 Commonwealth contribution payable?

Basic payability rule (1) A Level 1 Commonwealth contribution is payable to an eligible insurer under this section if: (a) a claim (the current claim) is, or was, made against: (i) for a claim that relates to an incident that is not a Birthing on Country out‑of‑hospital incident—a person (the midwife); or (ii) for a claim that relates to a Birthing on Country out‑of‑hospital incident—a person (also the midwife), or the eligible entity for a person (also the midwife); and (b) a Level 1 qualifying claim certificate is in force in relation to the current claim; and (c) in a case where there is a person, other than the midwife (in the case of a claim made against the midwife) or the eligible entity (in the case of a claim made against the entity), against whom a claim has been, or could reasonably be made in relation to the incident to which the current claim relates—either: (i) an apportionment certificate in relation to the current claim is in force; or (ii) the Chief Executive Medicare has not issued an apportionment certificate because of the operation of section 52 (which deals with claims for which there is a final judgment or order of a court); and (d) the eligible insurer has a qualifying payment in relation to the current claim (see subsection (3)); and (e) if the current claim relates to an incident that is not an out‑of‑hospital incident—the amount of the qualifying payment exceeds what was the Level 1 claim threshold at the time the eligible insurer was first notified of the current claim or the incident to which the current claim relates; and

Note: The Level 1 claim threshold does not apply to a Level 1 Commonwealth contribution in relation to a claim for an out‑of‑hospital incident: see subsection 10(1A).

(f) a person has applied for the Level 1 Commonwealth contribution in accordance with section 58; and
(g) any other requirements (however described) that are specified in the Rules have been met; and
(h) the current claim is not a claim included in a class specified in Rules made for the purposes of this paragraph.

(2) Rules made for the purposes of paragraph (1)(g) or (h) do not apply in relation to an incident if the claim to which the incident relates was made before the Rules in question commence. Qualifying payments (3) The eligible insurer has a qualifying payment in relation to the current claim if: (a) the eligible insurer: (i) pays an amount in relation to the current 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 current claim under a written agreement between the parties to the current 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 current claim under a judgment or order of a court that is not stayed and is not subject to appeal; and (b) the eligible insurer pays, or is liable to pay, the amount under an insurance contract between the eligible insurer and the midwife or, in the case of a claim against the eligible entity, the entity; and (c) the eligible insurer pays, or becomes liable to pay, the amount in the ordinary course of the eligible insurer’s business; and (d) if an apportionment certificate is in force in relation to the current claim—the amount paid or payable in relation to the current claim is consistent with the proportion of the overall liability specified in the apportionment certificate as the proportion that is to be attributed to the midwife or, in the case of a claim against the eligible entity, the entity, against whom the claim was made.