Analysis: Draft NDIS Act

The draft legislation of the new NDIS Act is finally here, marking the beginning of the end of what has been an anxious and emotional journey for the disability community. The Act was dropped last Thursday by the Department of Social Services (DSS) for a period of public feedback. Additionally, they have introduced new Rules (legislative instruments that provide extra details to support the Act) covering

• The Participant Service Guarantee

• Plan Administration

The government is also proposing amending the existing Rules on 

• Plan Management

• Becoming a Participant

They have also proposed minor changes to the Rules on Children, Nominees and SDA.

Consultations close on October 7th—which is only 3 weeks from now and 4 weeks from when the drafts were released. This short window for public feedback seems to contradict the government’s new-found commitment to co-design, especially given a good proportion of the country is preoccupied with COVID outbreaks. Apparently, they want to put the legislation through parliament on the week of 25th October, so they are not giving themselves much time either. Could there perhaps be an election on the horizon? 

In this article, we analyse some of the biggest proposed changes in the Act. But firstly I have an important caveat that I cannot stress enough: I am no lawyer. Yes, I was raised on more than a healthy dose of Law & Order, but apparently that is not a qualification recognised in this country. So before making your submissions, read a wide range of opinions and put aside a good chunk of time to tackle the legislation yourself. This is important: we must get it right. If you think we have missed something important or want to share a different angle, please make use of the comments section.

Okay, let’s get into it.

What's not there

There’s no doubt about it: this legislation is very different to the one we were expecting (and fearing) at the beginning of the year. Everyone’s favourite section, the Reasonable and Necessary criteria, remains completely untouched.

Additionally, Independent Assessments (IAs) are nowhere in sight. Cue the collective sigh of relief.

And, thankfully, the slated power of the Minister to unilaterally ban supports from the NDIS is not there (this still requires the support of the Commonwealth and all states and territories). Hello, yachts.com!

Variation, reassessments and reviews

As expected, there are proposed changes to the plan review process. Currently, there are close to a trillion things in the NDIS called a “review.” The government is proposing a renaming exercise to provide extra clarity. It’s a good idea, but, unfortunately, the main thing they seem to have succeeded in doing is breaking my brain. 

Under the proposed legislation, there would be 3 concepts: plan variation, plan reassessment and plan review. A plan variation edits an existing plan without creating a new one. A plan reassessment is an end of plan review. A review is a review of a decision in dispute. With me so far? These changes are in response to the Tune Review recommendation that acknowledged that people can’t make small changes to their plans without triggering a whole review.

This is where things get confusing: there is no clear criteria for deciding when a plan will be varied, reassessed, reviewed or have no action taken. In the Plan Administration Rules, they set out the following things to be considered when deciding whether to vary a plan:

• whether the variation is minor or technical;

• if the variation is to add a particular support to the statement of participant supports included in the participant’s plan—both of the following:

  • how that support is to be delivered to the participant; 

  • the cost of that support;

• whether the variation is of the reassessment date of the participant’s plan;

• whether the variation is to how a particular support covered by the statement of participant supports included in the participant’s plan is to be delivered to the participant;

• whether the variation relates to the cost of a particular support covered by the statement of participant supports included in the participant’s plan;

• whether the variation relates to compensation received, or to be received, by the participant;

• whether the variation relates to the management of any aspect of the participant’s plan, including the funding for supports under the plan;

• whether the variation increases the total funding for supports under the participant’s plan;

• whether the variation mitigates an immediate risk of harm to the participant or another person.

While some of these answers lead to obvious outcomes, for others it is not clear what response would warrant a review as opposed to a variation. For example, if the variation “increases the total funding for supports,” does that lead to a full review or is variation still a-okay? At the DSS briefing, we have been told that plan variations can only change the total funding amount if it is to add funding from a quote for an approved support. However, this is contradicted by an example of a plan variation in the explanatory documents (where a person receives additional funding through a plan variation to allow him to increase his hours at work). In summary: this just ain’t clear. 

Plans can be varied or reviews at the initiative of the NDIA or the participant. This has been a source of concern for many people who naturally do not feel comfortable with the Agency just deciding to vary their plan. Under the current Act, the NDIA does have the power to review a plan on their own initiative. To address these fears, we really need more detail on what the process of variation will look like and what checks are in place. What we do know is that the decision to vary a plan will be reviewable, meaning there is some inbuilt accountability. However, without clear criteria for the circumstances that warrant a plan variation, we can expect an influx of very messy AAT cases.

Preventing a provider from delivering a support

The proposed amended Plan Management Rules would stipulate that the NDIA has the power to prevent a particular provider delivering a support to a participant. Currently, the Agency can direct a support to be delivered “by a particular person or through a particular delivery mode.” However, this new power would go beyond deciding who will provide a support to specifying particular providers who cannot. There is a long list of things the NDIA must consider before prohibiting a provider in a plan, the gist of it being that they can use this power if there is a risk to the wellbeing of the participant, particularly if using a provider might limit the person’s choice and control with other supports or community inclusion.

This power is presented on the website as a response to the Tune Review recommendation to separate the providers delivering SIL and Support Coordination. It’s not exactly a secret that the NDIA feels uncomfortable with providers offering the same participants a combination of SIL, SDA and/or Support Coordination; you only have to read the Home and Living consultation paper to get that message loud and clear. However, the legislation and accompanying examples suggest this power might extend beyond circumstances of clear conflicts of interest.

The explanatory documents use the example of a young woman named Shaylea who has MS. In her planning meeting, she asks if a provider called Ultra Care will be her physiotherapy provider. Shaylea is concerned that Ultra Care lacks experience with MS and worries she might end up pressured to use their Support Coordination service. The Agency responds by stipulating in her plan that Ultra Care is not to provide her physiotherapy supports. This example leads to a couple of unanswered questions:

1. It is implied that Shaylea does not want Ultra Care to be her provider. However, what happens if the NDIA’s judgement of risk goes against the participant’s own wishes?

2. The emphasis on Ultra Care’s lack of experience working with MS suggests that a judgement about expertise factored into the Agency’s decision-making. However, does the NDIA have the right to make such judgements?

Plan management

The Act also proposes reclassifying Plan Management as a form of Self Management. In practical terms, this would mean the same criteria used to determine if a participant can Self Manage will now also apply to Plan Management requests. The criteria prohibit a person from Self Managing if it would cause unreasonable risk to the participant or if the participant or their nominee have been declared insolvent. This will have the effect of making Plan Management inaccessible for some people. The justification for this change is to protect vulnerable participants from the risks associated with the less regulated unregistered provider market. Naturally, Plan Management providers are likely to be unhappy with this development. And there are still unanswered questions. Particularly, if Plan Management is to be considered a form of Self Management, will Plan Managed participants still be bound by the price limits? 

Psychosocial disability eligibility

In the new proposed Becoming a Participant Rule, the legislative definitions of permanency and significantly reduced functional capacity are separated for people with or without psychosocial disability. If a person has a psychosocial disability, it may be considered permanent if they have

• undergone appropriate treatment that has not led to substantial improvement over a reasonable period of time; or

• there is no appropriate treatment.

When considering reduction in functional capacity, the NDIA will regard “the overall effect of the impairment or impairments over a period of time that is reasonable, considering the nature of the impairment or impairments (and in particular considering whether an impairment is episodic or fluctuates).” In the past, it has been debated whether the NDIA should be judging a person’s function on a “good day,” “bad day” or “average day.” Under this proposal, it appears they would look at the cumulative impact over month or years.

All these changes are welcome and are likely to lead to a more inclusive Scheme. However, it is not clear why they have been limited to psychosocial disability and not made available to all cohorts who experience fluctuating disabilities and disabilities with complex treatment pathways.

Participant service guarantee

Of course, we can’t finish this analysis without covering the Participant Service Guarantee, arguably one of the biggest changes in the Act. But there are no real surprises here. We have known what the Guarantee will contain for over a year now. Nevertheless, it is undeniably positive to see timeframes for making decisions being given legislative backing. The Commonwealth Ombudsmen will report on the Agency’s progress annually. The Guarantee also includes subjective standards for the NDIA’s interactions with participants, including increased transparency, responsiveness, respect, empowerment of participants and connectedness. It will be much harder to hold the Agency to account to these principles, and it will perhaps be best achieved by ensuring participants are aware of the standard they have the right to expect to ensure the NDIA is answerable to it.

Extra, extra!

Here are a couple of changes in the Act that we don’t have space to cover in more depth:

• Lived experience of disability can now qualify a person to sit on the NDIA board.

• The principles of the Act have been updated to say that people with disability should be considered in a co-design capacity. However, co-design has not been defined, so we still have no idea what this might look like.

• “Sex, gender identity, sexual orientation and intersex status” have been added as a factor to be taken into account when engaging with the NDIS.

• The term “to the extent of their ability” has been removed in references to people with disability’s right to inclusion and social participation.

• The term “psychiatric condition” has been replaced with “psychosocial disability.”

You can find the proposed new NDIS Act and accompanying Rules here. The actual Exposure Draft of the Act is quite hard to make sense of, so make sure you also take a look at the accompanying explanatory documents and have a copy of the original legislation on hand. There are a lot of pages to get through, so have fun with that!

Many of the issues with this Act stem from a common source: a lack of clear interpretation. Without an understanding of how these changes will be interpreted in practice, we cannot accurately assess their impact. Most of the changes above could well result in reduced red tape and a more flexible NDIS! But as with all legislation, the devil will be in the detail of the implementation.

A reminder that the deadline for submissions is midnight, October 7th—meaning it’s time to get your pens out and get writing!