Breaking News: NDIS Minister Bill Shorten introduces new legislation

NDIS Minister Bill Shorten has today tabled a bill to parliament to implement priority recommendations from the NDIS Review. The bill is called National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024’- the NUMBER 1 definitely suggests this is just the first instalment of a continuing saga.

In his speech to parliament, Shorten listed four principles that guided the changes, they were:

• Making NDIS a better and streamlined experience.

• Moving the NDIS back to its intention of supporting people with significant and permanent disability.

• Creating more equality

• Ensuring the sustainability of the Scheme. Shorten emphasised that the Federal government’s position is that the NDIS can’t keep growing at the level it is now. 

These principles probably won’t come as a surprise to anyone, as they’ve been Shorten’s talking points for a while. But we know what you’re here for. Let’s get into the detail of Bill’s Bill.

NB: This is our preliminary summary fuelled by adrenaline in the Green Room of DSC’s Annual NDIS conference. Expect more analysis in coming weeks. 

Shorten emphasised that the changes will take time and the Review recommended a 5 year transition period. This Bill is not the government’s response to the Review’s recommendation, but it is part of their response to address some priority areas. There will also need to be changes to the NDIS Rules and Operational Guidelines, a process that in itself takes months- much like requesting Assistive Technology from the NDIS. 

Shorten also mentioned the word ‘co-design’ an uncountable number of times.

Ok, let’s get into the key changes.

Determining a participant’s budget

• In line with the Review’s recommendation, participant funding will now be determined by a needs assessments. Shorten said they will work with sector to get this process right. The assessment isn’t about measuring a person’s level of disability, it is about working out how much support they need to live their life.  

• The idea is that a needs assessment will be more transparent way of developing a plan.

• Funding will still be based on reasonable and necessary.

• The Bill’s explanatory memoranda said ‘The Bill provides for ‘new framework plans’ to be developed in accordance with a new budget framework.’ We spent a good 15 minutes going around in circles about this one sentence. If you know what it means- congratulations!- please let us know.

• Funding won’t be based on primary or secondary disability anymore. Instead, it will look at a participant’s overall needs.

• Funding in a plan can be used flexibly, but there will still be some stated supports. Participants will get an entire budget, rather than individual line items.

• Plans will, in theory, be easier for participants to understand.

• There will be clearer rules about what funding can and can’t be spent on. We don’t know yet what the restricted supports will be, we imagine it will take a while for all the many relevant parties to reach agreement.

• The definition of NDIS supports will be linked to the rights of people with disability under the UNCRPD.

Changes to the eligibility process and re-assessment of eligibility:

• The eligibility information gathering process will change, Shorten emphasised they will work with sector to get it right.

• Eligibility will not be dependent on having particular medical conditions, but determined the level of functional impairment.

• The Bill gives the NDIA the power to request information from the participant if they are considering revoking their participant’s eligibility to the NDIS. If the participant fails to provide the requested information, their eligibility can be revoked. People will be able to gather evidence from their treating health professionals. This is a change that is certain to provoke some anxiety, so we’re keen to hear more details about this.

• Shorten said that contrary to social media speculation, psychosocial disability and autism will still included in the NDIS. But he also said that if its more appropriate for someone to be funded by another government service, they might receive foundational supports instead.

• Shorten said changes to the early intervention pathway would be co-designed with the disability community.

Quality and Safeguarding

• In his speech, Shorten stressed that there are many great providers out there, doing wonderful work. #NotAllProviders, but the Bill increases the ability of NDIS Quality and Safeguarding Commission to crack down on fraud and waste.

• Shorten said they are waiting for the Registration Taskforce to make its recommendations on changes to the registration system.  

• The Bill also prohibits people who have been banned from providing NDIS supports from being employed as auditors. Seems pretty obvious- but I guess it’s good to make official?

Plan management types

The Bill gives the Agency the power to change the plan management type or shorten the length of plans where there is a reasonable risk that others might seek to exploit the participant.

Operational changes for the NDIA

Shorten said the NDIA will need to be more consistent in its application of the Rules.

The Bill also requires the Agency to provide a clearer statement to participants about the reasons for their decisions.

Foundational supports

We also got some more information today about the commitment to foundational supports. States & Territories will provide $25bn for children with developmental delays. Shorten acknowledged in his speech today that the States & Territories have been feeling a bit angsty about foundational supports (though those weren’t exactly his words). On Monday, all Premiers met to express concern about the scale of funding that they are being expected to contribute to foundational supports, under National Cabinet agreement from December.  

The Bill was a bit of a surprise announcement this week. The process has been criticised by some disability advocates, particularly for the Bill not being subject to public consultation before being introduced to parliament. Disability Representative Organisations (DROs) were apparently consulted but made to sign Non-Disclosure Agreements.

Here's the link for the full Bill. Expect more analysis in coming weeks, when the post- conference hubble-bubble has settled down.