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NDIS Mission Critical: December Edition

In this jam-packed edition, we look at the new debt powers, NDIS Bill No. 2, new PACE functions, impairment notices, the regulatory roadmap and so much more!

By Team DSC

Updated 16 Dec 202417 Dec 20248 min read
Cartoon image of a person using a laptop with an oversized envelope, mega phone and pot plant

NDIS Mission Critical is DSC’s quick briefing for CEOs, Boards, and senior management on critical NDIS issues.

DSC’s Annual NDIS Conference submissions open

DSC’s Annual NDIS Conference will be coming to Melbourne next year on the 20th-21st May 2025. Submissions are now open for topic ideas as well as speaker nominations. We are particularly interested in hearing your ideas related to:

  • NDIS 2.0 following the NDIS Review
  • Foundational supports
  • Impacts of the new legislation
  • Business opportunities in NDIS 2.0
  • Financial sustainability
  • Rethinking service models
  • Technology and systems
  • Quality and safeguards
  • Workforce innovation

Submissions close 31 January 2025.

PACE now has the function to allow providers to request endorsement

Becoming an endorsed provider is one of the key ways of being paid promptly under PACE. Providers now have the option to request endorsement rather than wait for the participant to proactively endorse them. The self-service request for endorsement is sent from the provider portal to the participant’s NDIA contact (Planner, LAC or Early Childhood Partner) who then checks with the participant if they are happy with the endorsement terms. More details on the PACE System Improvements page.

New Debt Powers

Under the new legislation, the NDIA has compliance powers for when it believes a provider or participant has wrongly spent NDIS money, including the ability to raise a debt. The NDIA can raise a debt against a provider if they provide a support to a participant that:

  • is not an NDIS support; or
  • it does not comply with the person’s plan; and
  • the NDIA paid for it

To avoid non-compliant spending, providers and participants need to understand the new “in” and “out” lists. Read more in NDIS Act Explained: Debts.

ACCC puts NDIS businesses on notice

The ACCC has been working with the NDIA and the NDIS Commission to identify advertising that may be in breach of the Australian Consumer Law. The ACCC is concerned that many businesses continue to advertise goods or services that appear on the new “out” list. The ACCC has already instituted proceedings in the Federal Court against a provider for 'misleading representations'. Read the full media release on the ACCC website.

Impairment Notices

From the 1 January 2025, all new participants will receive an impairment notice when they access the NDIS. Existing participants will receive their impairment notices over time. Instead of focusing on disability diagnosis, impairment notices focus on the impairment(s) that makes someone eligible for the NDIS. Impairments are classified into 6 different categories:

  • intellectual 
  • cognitive 
  • sensory 
  • neurological 
  • physical 
  • psychosocial.

Under the recent amendments to the reasonable and necessary criteria in the NDIS Act, participants will only be funded for supports that arise from the impairment that granted them access to the scheme. Find out more about the potential implications in NDIS Act Explained: Impairment Notices.

NDIS Bill No. 2

The NDIS Commission has published a consultation paper proposing further changes to the NDIS Act. The Commission invites feedback to inform an exposure draft of Bill No.2 that will be published some time after February next year.

The consultation paper proposes measures that will impact providers including:

  • New statutory duty for key personnel of NDIS providers to exercise due diligence to comply with the NDIS Act.
  • New statutory duty for NDIS providers to ensure their conduct does not cause adverse effects to the health and safety of participants.
  • Increased penalty framework, including the ability for higher penalties to be sought for failing to comply with the NDIS Act and new criminal offences and civil penalties for breaches.
  • Anti-promotion orders to crack down on unscrupulous advertising.
  • Shorter timeframes for providers to produce information or documents.
  • Requirement for information to be held in Australia.

Find the full consultation paper and set of questions on the NDIS Commission's Reform Hub. Submissions close 20 December 2024.

Regulatory Reform Roadmap

The NDIS Commission has released its Regulatory Reform Roadmap, with a timeline of reform activities until December 2025. This includes mandatory registration of Supported Independent Living (SIL) services, Platform Providers and Support Coordinators. These providers will commence the transition into mandatory registration no earlier than July 2025. The NDIS Commission will also be consulting on the definition of an NDIS provider, and new rules and standards soon.

Consultation on Mandatory Registration

Following its announcement that all Platform Providers, Support Coordinators and SIL Providers will need to be registered, the NDIS Commission has published two consultation papers for feedback.

In relation to Platform Providers, the Commission says it wants to enhance regulatory oversight while maintaining choice, control, flexibility and market innovation.

The NDIS Commission is seeking input into:

  • How NDIS Participants and workers use Platform Providers
  • How to define what a Platform Provider is, including their key features
  • Explore the best approach to registering Platform Providers

In the consultation paper for Support Coordinators and SIL Providers the NDIS Commission proposes:

  • Rule changes to require SIL providers to register for Registration Group 0115
  • Consolidating support coordination services under Registration Group 0132 (Specialised Support Coordination) moving levels 1 and 2 support coordination from Registration Group 0106 to 0132

The NDIS Commission is seeking feedback on:

  • How this may impact NDIS participants and their access to supports
  • How effective the proposed registration approach and timeframes are for providers
  • What support or information the NDIS Commission can provide during the transition

Feedback can be provided through a survey or submission. Consultation closes 7 March 2025.

Consultation on Registration of NDIS Participants who self-direct their supports

Following recommendations from the NDIS Worker and Registration Taskforce to create a new registration category for participants who self-direct their supports, the Department of Social Services (DSS) has released a consultation paper for feedback. DSS would like to hear what this registration should entail including:

  • A definition of self-directed support for the purpose of registration
  • The obligations that should apply to participants who self-direct their supports
  • The support required from the NDIS Commission to assist participants who are registered to self-direct their supports

Consultation closes 7 February 2025.

Independent Review into Music and Art Therapy

The NDIA has announced an independent review of appropriate NDIS pricing for music and art supports. This comes just weeks after it announced a controversial price cut for these therapies it considered to have no evidence base. Dr Stephen Duckett AM will undertake the review ahead of the operation of the Expert Advisory Committee by July 2025.

The review will assess:

  • The evidence of effectiveness of art and music therapy for people with disability
  • Qualifications and registration of music and art practitioners
  • Pricing of art and music support

The Agency has delayed the Operational Guidelines it promised earlier this month and says these will now be released in 2025 following the review findings due March. Any proposed changes will not come into force until the review is completed and the relevant findings are considered.

Changes to the Privacy Act

The Privacy and Other Legislation Amendment Bill 2024 measures has passed parliament and introduces:

  • A statutory tort for serious invasions of privacy, with a route to seek redress
  • Expansion of the OAIC’s enforcement and investigation powers, including new tiers of civil penalties and the ability to issue infringement notices
  • A mandate for the OAIC to develop a Children's Online Privacy Code, which will cover not only social media platforms but any online services likely to be accessed by children
  • A new mechanism to prescribe a 'white list' of countries and binding schemes with adequate privacy protections to facilitate cross-border data transfers
  • A requirement that privacy policies contain information about substantially automated decisions which significantly affect individuals’ rights or interests, including the kinds of decisions and kinds of personal information used.

NDIS Providers may need to review their privacy policies and systems accordingly.

Eligibility Reassessments

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 NDIA can require assessments be conducted in an approved format or by a suitably qualified professional. 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. The NDIA’s Operational Guidelines list two timeframes the Agency might give people:

  • If the NDIA is requesting assessments or additional information- the participant must be given a minimum of 90 days
  • If the NDIA has evidence to suggest a person is no longer eligible and is not requesting information- then the NDIA can give the person 28 days to respond

People can contact the NDIA and request an extension if they need more time. Read more in our article NDIS Act Explained: Eligibility reassessments.

Same Job, Same Pay

As part of the Closing Loopholes industrial relations legislation, the Same Job, Same Pay changes allow employees of labour hire entities to apply to the Fair Work Commission for a ‘regulated labour hire arrangement order’. This will bring pay for the labour hire workers in line with the pay for workers doing the same work, employed directly by the host employer. While the provisions have been in place since 15 December 2023, the orders have only taken effect from 1 November 2024. There are more than 40 applications currently before the Fair Work Commission. Exceptions apply for host companies employing fewer than 15 workers and other considerations. Read more on the Fair Work Ombudsman site.

New Digital Compliance Register

The NDIS Commission has now launched a new digital compliance register. It allows users to search for NDIS providers and individuals to check if the Commission has taken any compliance action against them. You can search the register by business or individual name, ABN and/or state, and filter your results by the type of compliance action taken.

Conflicts of interest in the NDIS Market

The NDIA has published the NDIA Position Statement Conflicts of Interest in the NDIS Provider Market. Following codesign, the NDIA has developed a Position Statement, information and resources to support and educate participants and providers on conflicts of interest in the NDIS. The NDIA says providers should align their conflicts of interest policies and procedures with the NDIA position statement.

2024 has been a year of significant upheaval but there are even bigger changes to come. With the Government’s formal response to the NDIS Review imminent and a significant reform agenda set for 2025, we wish you a rejuvenating holiday season.

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