Inside the proposed registration overhaul

This article is a part of a series exploring the inner details of the NDIS Review recommendations and there have been few as controversial as mandatory registration. Recommendation 17 of the NDIS Review’s Final Report details a proposal for a new risk-proportionate model of regulation. This intends to increase the visibility of the NDIS market and strengthen the regulatory response to quality and safeguarding issues. So, let’s dive into what’s been recommended for registration in NDIS 2.0.

What is the problem?

When the initial NDIS Quality and Safeguarding Framework was developed in 2016, it did not anticipate the surge in the unregistered provider market. From April to June of 2022–23, over 154,000 unregistered providers received a payment from a Plan Manager.The total number of unregistered providers is presumably higher but impossible to quantify. This can be compared to around 16,000 providers currently in the registered market. This has limited the effectiveness of preventative strategies in the NDIS Quality and Safeguarding Framework, as these measures are primarily targeted at the now minority–registered providers. The NDIS Review is concerned that this has shifted the responsibility for the management of quality and safeguards back to participants without the necessary investment in developmental safeguards and understanding of risk.

Lack of oversight

The NDIS Review is concerned that there are gaps in the oversight of providers, particularly when delivering higher risk supports. There is limited visibility of the payments made by self-managing participants to unregistered providers, including who payments are made to and for what purpose these payments are made. While there are many people whose support systems undeniably thrive under the flexibility of the NDIS, there have also been reports of people being picked up by unknown providers, taken to unknown places and having their funding drained.At the recent Town Hall briefings the Review panel expressed their concern that without centralised registration and transparent payment processing, it is very difficult to determine where these people are and whether they are safe. While all providers, including unregistered providers, must adhere to the NDIS Code of Conduct, the NDIS Commission does not have the same view of the unregistered market. The Review is concerned that this means they cannot effectively monitor or proactively intervene to prevent harm and promote quality.

Regulatory burden

The Review has heard about the excessive and duplicative regulatory burden for registered providers, particularly those delivering low-risk supports and interfacing with other systems, such as aged care or allied health. While the principal of proportionality was reflected in the first edition of the NDIS Quality and Safeguarding Framework, many observers have long argued that this has not been the reality. Small organisations and sole traders are required to abide by the same number of standards and reporting requirements as larger providers. For example, under the current system, a registered sole trader support worker and a multi-million dollar organisation delivering support under the same registration groups, would be audited against the same number of Practice Standards. The Review learned that this expensive and time-consuming exercise actively disincentivises registration for many players.

Worker screening

Worker screening is a preventive tool designed to help identify workers who may pose unacceptable risk to NDIS participants. Like registration, it is not designed to be a silver bullet but, rather, another tool in the quality and safeguarding system. This worker screening is mandatory for workers in risk-assessed roles in registered providers. While it is optional for unregistered providers, the data shows that most people do not opt in. Only 6,467 of more than 154,000 unregistered providers had any workers who had been screened as of 30 June 2023. The Review heard of instances of workers who were not eligible for the NDIS Worker Screening Check establishing themselves as unregistered providers to avoid screening. While the NDIS Commission can still ban anyone from working in the NDIS, the current approach is purely corrective and relies on something going wrong and a complaint being made before action can reasonably be taken.

Regulatory settings have not kept up with the market

The Review reports that regulatory settings have not been updated to reflect changes in the market, including the introduction of new supports and services, such as platform providers and support coordination. It reports that this has caused uncertainty regarding expectations. The Review believes many long-standing and emerging safeguarding issues would benefit from a more active approach by the NDIS Commission regarding conflicts of interest; client capture; sharp practices, including unfair service agreements; transparency and duty of care.

Does registration = safety?

The NDIS Review accepts that while registration is not a guarantee of either safety or quality, it believes it does indicate that a provider has taken steps to demonstrate they can deliver services professionally, competently and in a way that is consistent with quality standards. Moreover, it ensures the visibility of the market and a mechanism for holding providers to account. Currently, there is very little visibility over payments and services, and the Review panel is concerned that many participants do not fully understand the risks involved. This is thought to be particularly true for those with more limited capacity to self-advocate, including those with cognitive impairment.

This has, understandably, generated debate between advocates on both sides of this complex issue. On one hand, why not have a more rigorous capacity assessment to ensure people can self-manage so that those for whom the current system is working are not impacted by the changes? On the other hand, who would make these judgements, on what basis do they make them and who should shoulder the risk of ensuring services are safe and high quality in a government-funded scheme?

What’s the solution?

There is no doubt that this is a complex issue that impacts many people in different ways. The NDIS Review has proposed several solutions to the problems they have identified, but these are only recommendations at this stage. We are still waiting on the government’s formal response. Here is what is proposed:

A risk-proportionate and graduated approach to regulation

If accepted, this would be a game changer and require all providers delivering NDIS and foundational support to either be registered or enrolled to deliver disability support. There are four broad categories proposed:

Advanced registration for all high-risk support, such as behavioural support and daily-living support in formal closed settings.
General registration for all medium-risk support, such as high-intensity support that may require additional skills and training, for example, complex bowel care.
Basic registration for all low-risk support, such as support with limited 1:1 contact, for example, specialist transport.
Enrolment of all providers of the lowest-risk support, such support covered under general consumer law protections, for example, equipment and technology.

You can refer to the NDIS Review table for more detail below.

You can find a screen reader friendly version of this table here: https://www.ndisreview.gov.au/resources/fact-sheet/disability-service-providers Under the heading: Proposed risk-proportionate regulation of all providers delivering NDIS and foundational supports - Provider obligations.

Find accessible table on the NDIS Review website.

Streamlined registration processes

In implementing the above, the Review has been clear that the registration system we have today is not the one they are advocating for tomorrow. A new proportionate approach will be designed so that providers understand their obligations while minimising the regulatory burden. The Review suggest that proportionality and streamlining could be introduced through simplifying Practice Standards, recognising compliance in other regulatory systems, using risk-based auditing and targeting the scope of audits to the most relevant and important issues. This would be complemented by minimum safeguards, such as worker screening and basic online training, to ensure that workers understand their obligations and do not pose an unacceptable risk of harm.

NDIS Worker Screening

The Review wants to see all workers in risk assessed roles and those delivering direct support services undergo worker screening. The Review reports that worker screening should also become faster, smoother and better harmonised across systems and jurisdictions.

Electronic payment system

The Review has recommended a centralised online platform that provides real-time claims and information about providers for participants. This would reduce the need for plan managers over time and provide oversight and a paper trail for payments made to providers by self-managed participants. Providers would also need to be enrolled or registered to be paid via the system. We will be providing more analysis on this in coming weeks.

Better incentives for continuous quality improvement

The Review has recommended targeted capacity-building initiatives to support providers in improving the quality of their services. This could include translating evidence about what works into practical resources, as well as publishing quality and safety metrics that reward and drive good performance. It also wants to see improved auditing that assesses the quality of support instead of simply the paperwork, ensuring that the voice of the participant is central to any assessment of quality.

Pricing changes

The Review wants to see price caps reflect the market price of support, recognising that the complexity of needs, regional factors, settings, supervision and indirect costs must all be taken in account when setting prices. A move away from one-size-fits-all pricing would mean exploring pricing models beyond the current fee for service including blended payments and alternative commissioning arrangements.

Responsive regulator

The NDIS review has recommended that the NDIS Commission expand its powers to a new National Disability Support Commission that regulates all government-funded disability support services. It says that this Commission should be proactive, responsive to change, engage with innovation in the market and address quality and safeguard issues as they emerge. Immediate priorities include communicating expectations and taking compliance action in relation to conflicts of interest, client capture, sharp practices and service agreements, transparency and open disclosure, and duty of care. The Review says the new Commission should proactively engage with innovative providers, such as through trialing collaborative models, to consider the appropriate regulatory approach for emerging service models.

Does this signal the end of self-management?

The Review assures participants that they can still self-manage all their funding and says this should be easier and more accessible under the proposed recommendations. The proposed electronic payment system is said to be faster, and participants would no longer have to pay out of pocket and be reimbursed by the Scheme. However, whether these changes impact the uptake of self-management remains to be seen. Currently, 29% of participants self-manage all or part of their plan, and around 60% use a plan manager.This means they can access unregistered providers, which has likely driven the growth in this market. Under the newly proposed recommendations, all providers would be required to either be registered or enrolled, and the funding management type would no longer be linked to the registration status of the provider.

What next?

On ABC’s Insiders program, Minister Shorten said it will take 2 years to create a registration system because they have to talk to everyone about what is needed.More recently, a new Taskforce has been established to work with the disability community and sector to ensure provider and worker registration leads to better outcomes for NDIS participants. The Taskforce, which will support the co-design and development of the reform for the Government’s consideration, will be led by lawyer and disability advocate Natalie Wade, former chair of the Australian Competition and Consumer Commission Allan Fels, former ACTU Assistant Secretary and training and safety expert Michael Borowick and former Administrator of the Northern Territory Vicki O’Halloran. Minister Shorten says an overhaul of the current registration process is essential to ensuring quality and consistent outcomes for all and that no one is invisible or forgotten in the NDIS. He has assured participants and their families that the Government’s agenda is not one of removing choice and control but, rather, one of delivering quality and safety.

The Taskforce will provide advice to the Minister about key design elements and the implementation of new regulatory arrangements, including the Provider Risk Framework, so that those arrangements accomplish the following:

Uphold the rights of people with disabilities, including allowing them to determine their own best interests and improving their ability to exercise choice and control over the providers that they use. This is central to the design of the new regulatory model.
Enable people who are self-managing in the NDIS and employing and engaging their own workers and providers to continue to do so.
Reduce the potential for harm to people with disabilities by taking a proportionate and risk-based approach to regulation that considers both provider and support risk, as well as the circumstances of the people using those services.
Increase quality and innovation regarding services and support for all NDIS participants.

The Taskforce will provide the Minister with a report in mid 2024 setting out advice on:

The design and implementation of the graduated risk-proportionate regulatory model;
A Provider Risk Framework; and
Arrangements for platform providers and circumstances where participants directly employ their workers.

You can read the full terms of reference on the DSS Website.

Finally, don’t miss the opportunity to come hear from the members of the Registration Taskforce themselves at DSC’s Annual NDIS Conference 2024 and please head over to our speakers page to submit your questions in advance.