NDIS Bill: the changes coming soon

The new NDIS law has just passed parliament, and it will change the way the NDIS operates. To save you from reading something as complex and large as War and Peace, we cover the main changes that will come into effect soon. But, keep in mind, there’s a lot of unknown details about how the NDIA will implement the law.

The Bill becomes law when the Governor-General signs the legislation (aka Royal Assent). Many of the powers in the Bill will be enacted 28 days after Royal Assent. We will focus on those changes in this article.

A new way to define NDIS Supports

The definition of an “NDIS Supports” is hugely consequential under the new Bill, with implications for access and planning. It is still to being worked out through a separate process, with consultations recently closing.

In the long run, the government plans to develop legislative Rules that define NDIS support. However, these need approval from the states and territories. Anticipating that this might be a long process, the government plans to implement transitional Rules that list what constitutes an NDIS support. You might have seen the draft version of these lists in the last few weeks (or read our article ‘the far-reaching draft lists of NDIS supports ’).

The lists include prohibited supports (the ‘out’ list), and allowable supports (the ‘in’ list). The out list includes things like gambling, gaming consoles, smartwatches, and period products. Sex work is on the out list, but the government also accepted an amendment by the LNP and One Nation to prohibit sexual services in the Act itself.

Exemptions when supports on the ‘out’ lists can be funded

Fairly late in the law-making process, in response to community feedback on the lists, the government introduced a “substitution rule”. This power means someone can apply to have a support on the out list funded if it substitutes another NDIS-funded support and meets the criteria laid out in the Act- you can find the full criteria in our article on the lists .

Exceptions must be approved by the NDIA. A person will need to collect evidence to meet the high bar set in the criteria. The NDIA hasn’t yet released details on the substitution application process, yet the substitution powers can be used as soon as the law comes into effect.

Access

Previously, to be granted access to the NDIS an applicant would need to show that they are “likely to require support under the NDIS” for their lifetime. This criteria will be changed under new transitional Rules to specify that the applicant needs ‘NDIS supports,’ rather than just a ‘support’. Meaning, the legal definition of an NDIS support will also inform access decisions. This applies to both the Early Intervention and disability requirements access criteria.

Notification of impairment

Under the new legislation, once a person meets access, the NDIS will provide a “Notice of Impairment(s)”. The notice will state whether the person met access through Early Intervention or the disability requirements. Critically, it will also list the categories of impairments the person has met access for, including: intellectual, cognitive, neurological, sensory or physical, and psychosocial impairments. The NDIA says impairment notices will be sent from the 1^st of January for new participants. We don’t yet know the timelines for existing participants.

Importantly, the impairments for which someone has met eligibility requirements will be linked to the supports they can access once the law comes into effect. For example, a person who meets the access criteria for a psychosocial disability might not be able to access supports for a physical co-morbidity that is not listed by the NDIA. Notably, the impairment notice will be reviewable, as advocates fought for.

Planning

The Bill paves the way for plans to be developed based on a needs assessment, the results of which will be translated into a budget amount. However, these processes have not been designed yet. We also don’t know whether the NDIA plans to use existing needs assessments or design new tools.

Until the processes are designed, the current system of line-by-line planning is not gone yet. Reasonable and necessary will remain the way planners assess each support.

However, two things will change: a person’s qualifying impairment will inform what is fundable, and the new definition of “NDIS Support” will replace section 34(1)(f) of the reasonable and necessary criteria (most appropriately funded by the NDIS).

What plans will look like

Okay, someone gets their plan. What’s changing? Well, their plan will now state:

Total flexible budget
Total stated budget
Plan periods, where funding will be released in instalments (default is 12 months)
Total plan length
Management style (e.g. Self-, Plan- or Agency managed)
Qualifying impairments

Change of Situation

The Bill gives the Agency new powers to ensure people spend their plan appropriately within the plan period. These changes only apply to new framework plans- which are plans developed based on the needs assessment. New framework plans will be introduced in 12-18 months after a co-design process.

In the future, a person who needs extra funding within the plan period will only get the NDIS to do a change in circumstance, if, among other criteria:

There is crisis or emergency funding needed as a result of a significant change to support need; or
The participant experienced fraud or financial exploitation; or
To prevent or lessen a threat to the participant’s life, health or safety.

The old legislation did not provide a threshold someone needed to reach before the NDIA would agree to reassess the plan. Participants and providers will now need to ensure they have good evidence before pursuing a change of circumstance.

The government estimates that this measure alone would account for two-thirds of their total $14.4 billion projected NDIS savings. This figure is based on a desktop study of 113 participant records by the Scheme Actuary.

Compliance

If a person spends their funds on a prohibited support or doesn’t spend in line with their plan, the NDIA now has new compliance tools. Once the law comes into effect, in the middle of a plan, the Agency can:

vary someone’s management style (from Self-managed to Agency managed, for example); and
vary a funding amount; and
impose a shorter plan period (so funding is released every 3 months, for example); and
raise a debt.

The NDIA’s decision to vary someone’s statement of participant’s supports- which will describe a person’s management style, funding amount, and plan period- is a reviewable decision. Where a debt is raised, a person may apply for the Agency to waive the debt and the decision not to waive a debt would be reviewable.

Revocation

As soon as the law comes into effect, the NDIA can request information or ask a person to undergo an assessment to test their ongoing eligibility for the Scheme. If a person does not comply within a reasonable time, the NDIA may revoke access to the NDIS, meaning they will no longer be a participant.

New claims and payment framework

Late in the law-making process, the government released an amendment specifying that providers must make claims within two years. There will be a 12-month leeway period to get older claims in. These powers are enforceable when the law comes into effect, but the details of this are still unclear.

Want to learn more about how this relates to providers? We got you. Come hang out with us in a workshop and learn how to prepare for what comes next.

DSC’s upcoming Provider Viability Summits will cover how these changes will impact provider viability – learn more on DSC’s Summits webpage.