NDIS Act Explained: Eligibility reassessments

NDIS Act Explained is a series where we pull out different parts of the new NDIS legislation and get into the detail. Because let’s be real, it’s not the easiest thing to get your head around. It’s never-ending, like when you’re moving house and think you’ve packed everything, but then discover a whole other cupboard full of trinkets.

This week, we’ll be unpacking the cupboard that is eligibility reassessments. Let’s see what’s in there, shall we?

What is an eligibility reassessment?

An eligibility reassessment is exactly what it sounds like. It is when the NDIA reviews if an existing participant is still eligible for the NDIS. Specifically, if the person still meets the residency requirements and disability or early intervention requirements.

If the NDIA decides to review a participant’s eligibility, they will notify the participant and give them time to respond.

Eligibility reassessments are not new. The NDIA has always had the power to reassess whether someone is still eligible for the Scheme. However, the new legislation created a legal basis for the NDIA to request information from the participant to assist with the process and revoke access if that information is not provided.

What new powers does the NDIA have under the new legislation?

The amended NDIS Act gives the Agency the power to request information or assessments from a participant for the purposes of an eligibility reassessment. The information they request must be ‘reasonably necessary’ (two words that seem to form the basis of the NDIS’s love language) to make an eligibility decision.

The NDIA can require assessments be conducted in an approved format or by a suitably qualified professional.

The Agency can only request a participant undergo an assessment if it will provide information the NDIA ‘cannot otherwise reasonably obtain.’

If a person does not comply with a request for information within the set time frame, the NDIA can revoke their access to the Scheme. But the NDIA must also consider whether it was reasonable for the person to comply (more on that later).

How long will participants have to comply with requests for information?

The NDIA’s Operational Guidelines list two timeframes the Agency might give people:

If the NDIA is requesting assessments or additional information- then the legislation says that the participant must be given a minimum of 90 days, but the NDIA has the option of giving them longer.
If the NDIA has evidence to suggest a person is no longer eligible- then the NDIA gives the person 28 days to respond. The Operational Guidelines say they will send a letter explaining the reason they think the participant is no longer eligible. However, we’re hearing anecdotally that many participants are receiving stock standard letters, that don’t make it clear what gaps in their evidence the participant needs to address.

Here’s where things get weird. The 90-day minimum timeframe for requests for information or assessments is laid out quite clearly in the amended NDIS Act (well, as clearly as legalese gets). However, the 28-day time frame does not exist in the legislation. Which is a tad awkward. They just wrote the bloody thing! This was a hot topic in the recent Senate Estimates and Rick Morton’s article in the Saturday Paper ‘Exclusive: NDIS crackdown wrongly withdraws support.’

The NDIA says the minimum 90-day timeframe in the Act is only for requests for specific pieces of information. But that the legislation doesn’t have timeframes for eligibility reassessments when they are not requesting specific information.

I’m not a lawyer, so I can’t comment on the validity of this argument. But for people who want to gather evidence to establish that they are still eligible for the Scheme, the 28-day timeframe might be tricky. We all know that attempting to get a specialist appointment and report within 28 days is a bit like trying to run into George Clooney in the fruit aisle of your local Coles. Sure, it’s technically possible- but don’t bet the bank on it.

Importantly, based on Senate Estimates, the NDIA seems pretty willing to give out extensions to either the 90+ day or 28-day timeframe. The Operational Guidelines say that people should contact the NDIA and explain why they need longer and how much time they require. It also says the NDIA ‘generally’ only provides one extension, and people will have to justify requesting an additional one.

Of course, people need to know they can ask for an extension. Hopefully, the NDIA’s communications will be clear and accessible. But let’s not count on that. Providers will have a role to play in sharing this information with participants who are undergoing eligibility reassessments.

When would it be reasonable for a participant not to have complied in the timeframe?

The Act sets out criteria the NDIA must use when deciding whether it was reasonable for a participant to have provided information or an assessment in the set time frame. If it was not reasonable, then the person’s status as a participant can’t be revoked.

The NDIA must consider:

The length of time provided
Whether the person has previously failed to provide information
How long it has been since the NDIA last received information relevant to determining a person’s eligibility
Whether the delay was outside of the participant’s control because someone else did not provide information in time (for example, if the treating health professional didn’t finish the report by the deadline)
Any other criteria listed in the NDIS Rules (which have not been written yet!)
Anything else the NDIA considers relevant.

How long will the NDIA take to make an eligibility reassessment decision?

Under the new legislation, once the participant has provided the requested information or assessment, the Agency has 14 days to either decide whether the person is still eligible for the NDIS or request more information.

Of course, NDIA has been a bit loose at meeting their own deadlines lately, so we’ll have to see how that goes.

Can the assessments and reports be completed by the participant’s treating health professional?

Yes. The NDIA will not prescribe who completes a report or assessment. However, they can require assessments to be conducted by a ‘suitably qualified professional.’ Therefore, participants might be able to choose the practitioner but not the profession.

Who pays for assessments or reports for eligibility reassessments?

Ah, I really wish I had an answer to this! However, the legislation and Operational Guidelines don’t mention funding for reports or assessments.

The NDIA’s internal ‘Internal Review Access and Revocation Practice Guide’, which was obtained under a Freedom of Information request and published on the Right to Know website, says, ‘The NDIA does not generally fund requested information.’ However, this document predates the new legislation.

For assessments conducted by medical professionals, people might be able to claim some funding back from Medicare. But if the assessment is conducted by an allied health practitioner or other person, it’s not clear when and if it can claimed from an NDIS plan.

People undergoing an eligibility reassessment should probably discuss this with the NDIA directly and get advice relevant to their circumstances.

Can people appeal a decision to revoke eligibility?

Yes. If a person’s access to the NDIS is revoked, they can request an internal review of that decision. If, following the internal review, they are still not satisfied with the outcome, they can send the matter to the new Administrative Review Tribunal.

One small procedural change is that, under the new legislation, people appealing their eligibility being revoked can’t submit a new access request until the review is completed.

Which participants will need to undergo an eligibility reassessment?

We don’t have any official indication of which (if any) cohorts of participants will be the focus of eligibility reassessments. The Act doesn’t lay out any criteria the NDIA must use when deciding whether to conduct an eligibility reassessment, though it’s possible this will be in future Rules.

However, thanks to recent questions at Senate Estimates by Senator Jordan Steele-John, we have a sense of the NDIA’s current priorities for eligibility reassessments. Some care should be taken when drawing inferences from this data, as just because something has been the case in the past doesn’t mean it will continue to be in the future (even if time does feel like an endless loop).

In the six weeks before 6th November, the NDIA had conducted 7487 eligibility reassessments. 78% of these were for children between the ages of 5 and 9. Of these children, 48% had their access revoked, 32% were found to now meet the disability requirements (rather than the early intervention requirements) and 20% are still ongoing. Children are usually referred to the NDIA for eligibility reassessments by their Early Childhood Partner.

The Operational Guidelines also say that when a child who accessed the NDIS with a developmental delay turns 6, the kid’s eligibility will be revoked unless the NDIA can establish that they meet the early intervention and/or disability requirements.

At Senate Estimates, we also learned the NDIA is conducting about 1,250 eligibility reassessments. According to the Agency, they have been conducting more recently because the last Federal Budget increased their funding for frontline staff.

Learn more

If you are a provider wanting to support participants through eligibility reassessments, make sure you check out our upcoming workshop NDIS Eligibility Reassessments .

Eligibility reassessments are just a small part of a very large Act. To learn more, check out our articles:

We also have the following not-to-be-missed upcoming workshops and webinars:

Disclaimer: I’m not a lawyer and this is not legal advice. If you or someone you’re supporting requires support with eligibility reassessments and appeals, get in touch with an advocate or legal aid in your jurisdiction.