Conflict of Interest & Support Coordination: The Devil in the Detail

The Support Coordination Discussion Paper is asking the sector to respond to a question that has long circulated the NDIS: should providers be allowed to deliver Support Coordination and direct supports to the same people? This is a question the NDIA is being forced to turn its attention to, with three major recent reviews giving clear direction:

• The Tune Review recommended a change to the legislation to outline circumstances in which Support Coordination must be offered by an independent provider.
• The NDIS Independent Advisory Council (IAC) has recommended that the NDIA enforce this separation.
• The Joint Standing Committee Inquiry into Supported Independent Living (SIL) recommended that that the provision of SIL and Support Coordination be separated “as a matter of urgency”. The NDIA have accepted this recommendation in principle.

My colleague, Rob Woolley recently wrote about why these reviews are urging for separation and the steps providers can take to mitigate existing conflicts of interest. When we think of “conflict of interest” we often think of the most bleedingly obvious examples, like where providers advertise Support Coordinator jobs with tasks including “attract participants to our other services”. But even in significantly less outrageous examples, effectively mitigating conflict of interest requires careful planning across the entire participant experience, from determining how involved a Support Coordinator should be in various internal tasks to the more serious safeguarding considerations of creating a closed system.

Currently, around half of participants with Support Coordination funding purchase this from an organisation who provides them with other supports. If the NDIA was to put in place regulations that sought to limit the conflict of interest of Support Coordinators, a very large proportion of NDIS participants would be impacted. The exact nature of these impacts and how to find a way forward are what the NDIA are trying to tease out with the Discussion Paper. While many in the sector hold strong views for or against independence of service, it will be vital for all submission writers to consider the nuance of any regulation (or lack thereof).

So in case you didn’t have enough on your plate answering the 21 questions posed by the NDIA, here are some extra questions to fuel your thinking:

How and for whom should exceptions be made?

Based on the Discussion Paper’s questions, it does not appear that the NDIA are pursuing an “all or nothing” approach to independence. We can all name a range of scenarios where a sudden and uncompromising enforcement of independence would lead to poorer outcomes for participants: thin markets, supports with a cultural or language competence, people with a history of service breakdown – this will be an important list to uncover through the Discussion Paper.

But what is the long term approach with these exceptions?  Should the fact that there is currently only one provider in a region result in a permanent exemption from separation safeguards or should this situation trigger a process to ensure the market evolves over time?

Regardless, when thinking about exceptions, it also helps to consider what the long term, best case scenario might look like:

• Which groups of people most benefit from the current model? What exceptions, if any, should be made if stricter regulation is introduced?
• What would transition to a new model look like?
• How should these exceptional circumstances be managed over time?
• What does it look like for a Support Coordinator to appropriately mitigate the conflict of interest when they work for the only provider in the market?
• What supports would be needed at the individual and market level to reduce the instances of these exceptions over time?

What do we not want to lose?

The Discussion Paper seeks to understand what the impact might be on participants and the market if tighter regulation is introduced. Interestingly, it does not ask about the impacts of maintaining the rules as they are, presumably because the previous reviews into Support Coordination have made the risks quite clear. But what benefits does the current model have that you want to make sure the NDIA are aware of?

• Which parts of the current approach work well for the people you support?
• What might be lost in the transition to a different approach?
• How could these benefits be retained under stricter regulation?

How do we protect and enhance Choice and control?

One of the most common protests we hear to enforced independence is about the impact on participants’ choice and control. If someone has decided they want to engage a specific provider, what right does the NDIA have to override their choice?

It’s important to note that, from a legal perspective, the NDIA already has this power through section 6.7b of the NDIS (Plan Management) Rules 2013, which allows the NDIA to direct that supports by delivered “by a particular person or through a particular delivery mode” where they see it as most effective and efficient to do so. In practice, however, this rule is rarely invoked and typically only where a specific risk has been identified in a person’s support environment. 

The Tune Review has specifically recommended that Support Coordination not be provided independently if that would be against the person’s wishes. So how would this look in practice?

• What supports would be needed to ensure people can make their choice without undue influence?
• What would proportional safeguards look like in this context, considering developmental, preventative and corrective approaches?

What role do we want regulation to play?

In the disability sector, we are quick to call for increased regulation or compliance requirements in response to service quality issues. Certainly, regulation has a role to play here - but to what extent?

• There are risks involved when Support Coordination is not provided independently. If not by increased regulation, how else could these be mitigated?
• What might it look like for the Support Coordination industry to self-regulate (similar to AHPRA and the Allied Health sector)?
• The NDIS wants participants to determine what quality support looks like. Why is there currently a gap between what participants are willing to purchase and what external reviewers deem as acceptable? What supports might be needed to bridge that gap?

These are complex questions which require nuanced answers and it’s great to see the NDIA engaging the sector in uncovering the way forward. We hope many of you will consider providing input to this process and support participants to do the same.

Details on the discussion paper can be found here and submissions are open until Sunday 11:59pm AWST 13 September 2020.