Quality & Safeguarding
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NDIS Mission Critical
Welcome to NDIS Mission Critical. DSC’s quick briefing for CEOs, Boards, and senior management on critical NDIS issues.
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (DRC) has handed down its final 12 volume report with 222 recommendations.
Here are some key takeaways for providers:
Disability Rights Act
The DRC recommends the Australian Government establish a Disability Rights Act to translate the international human rights set out in the Convention on the Rights of Persons with Disabilities into domestic and enforceable Australian law. Some Commissioners believe the Act should initially cover public authorities and be reviewed within 5 years to see if the duties should be extended to private sector providers under the NDIS. Others believe private entities should be included from the outset.
National Disability Commission
The proposed Act would establish an independent statutory body called the National Disability Commission. The National Disability Commission would have capacity-building functions as well as powers to address non-compliance with the Act, including through inquiries, enforceable undertakings, compliance notices and injunctions.
A New Government Portfolio
The DRC has recommended a new disability portfolio led by a Minister for Disability Inclusion. They have also recommended a new Department of Disability Equality and Inclusion (incorporating the disability and carer programs of DSS). This new proposed Ministerial portfolio would include the new Department of Disability Equality and Inclusion, new National Disability Commission, the NDIA and NDIS Commission.
Reducing and Ending Segregation
Commissioners are split over the future of segregated settings such as special schools, ADEs and group homes. Some want to see special schools* phased out over 28 years, group homes over 15 years and ADEs over 11 years.
Volume 10 of the Report is dedicated to Disability Services, with sections for both service providers and the NDIS Commission. Recommendations include:
NDIS Commission to invest in increased capacity building for providers
NDIS Rule to ensure independent support coordination
Practice standards and guidance in supported decision making
A national disability worker registration scheme
Provider of last resort scheme
Risk-based reportable incidents to reduce volume to the NDIS Commission
Model policies and procedures
Complaints system enhancements including opportunities for redress and reporting on investigations and engagement
Improved governance including updates to the standards, new guidance and access to specialist governance safeguarding expertise
Enhanced information sharing relating to worker screening
Consistent restrictive practice authorisation processes based on a senior practitioner model
Reduction and elimination targets and performance indicators for restrictive practices
A longitudinal study of the impact of positive behaviour support
Measures to increase the availability of specialist behaviour practitioners
Introduction of a nationally consistent adult safeguarding function, community visiting schemes, disability death review scheme and reportable conduct scheme.
Nominations for Disability Leadership Awards Close Friday
DSC is a proud sponsor of the 2023 National Disability Leadership awards run by the Disability Leadership Institute. These awards recognise the work of disabled people, Disabled People’s Organisations, or collectives / working groups of disabled people.
You can nominate a leader up until this Friday the 20th October by visiting the Disability Leadership Institute. Awards will be announced on International Day of People with Disability (3rd December 2023).
Be sure to check out our latest podcast with the CEO and Founder of the Disability Leadership Institute, Christina Ryan on leading by example.
Industrial Relations Changes
The Commonwealth Government's latest round of proposed legislative changes for the Fair Work Act could have significant implications for contractors and casual workers including:
A new assessment of whether a worker delivering supports through a digital platform is considered an 'employee-like worker' (instead of contractor), triggering a range of obligations for the organisation and entitlements for the worker.
The definition of casual employee to be changed to include an absence of firm advanced commitment to continuing and indefinite work, as well as assessing the totality of the relationship rather than relying on the contract. There are also new pathways proposed for casual employees to convert to part time or full time status.
The 'same job same pay' amendments close the loophole that allowed employers to underpay workers engaged under labour hire arrangements, as a worker employed directly by the organisation.
If accepted, providers should consider expert legal advice to assess what these changes mean for them.
Providers Fined for Unauthorised Restrictive Practices
The NDIS Commission has recently issued 22 infringement notices, carrying penalties of a combined total of nearly $400,000, to six registered NDIS providers for the alleged use of unauthorised restrictive practices. Read the full media release here.
Price Differentiation Guidance
The NDIS Commission is taking action to address price differences in the NDIS Provider market, following reports that some providers are charging NDIS participants more for the same services than those delivered outside the scheme.
Commissioner Tracy Mackey said any price differentiation, where a provider sets a higher price for a product or service offered to NDIS participants compared to others would need to be justified. "Where a price difference cannot be justified, it may be considered a ‘sharp practice’ and constitute a breach of the NDIS Code of Conduct."
The NDIS Commission has developed guidance material to help participants and providers identify where sharp practices may be occurring and what action they can take in response.
NDIS Commission Own Motion Inquiries
In September, the NDIS Commission released the results of their Own Motion Inquiry into platform providers in the NDIS marketplace.
From 1 July 2022 – 31 December 2022 over 13,000 participants engaged services and supports through a platform provider.
The Commission says there is a place for platform providers in the NDIS but also raised concerns that safeguarding practices are varied and often insufficient.
It found that many workers and providers believed the workers on the platform were employees even when they were not.
When attempting to compare prices across platform providers it found it complex and unclear with mixed pricing models used.
Follow-up actions include helping participants to make informed decisions about platform providers, establishing consistent and best practice to safeguarding across all platform provider services, increasing transparency around pricing, regulating the platform workforce more directly and addressing privacy concerns.
Read more detailed analysis here.
Support Coordination and Plan Management
Part 1 of the Own Motion Inquiry into support coordination and plan management has been completed and examined complaints and reportable incidents received by the NDIS Commission relating to intermediaries.
Incidents and complaints included concerns around conflict of interest and support coordinators not working with care and skill.
Plan management complaints included non-payments, wrong payments, late payments and overpayments.
The Inquiry also found that plan managers and support coordinators play a valuable role in quality and safeguarding particularly when they are independent.
Part 2 will examine whether the NDIS Commission should make any changes to how it regulates intermediaries. This stage will not be conducted until the NDIS Review hands down it final report. Read a more detailed analysis here.
Speaking of NDIS Review the Review Panel is starting to give us a glimpse into what we can expect in their final report. It refers to an eco-system, which when working properly will mean the scheme will work effectively.
The NDIS Review has hinted at 10 major reform changes including:
Foundational supports of all Australians with a disability
The NDIS to become more person-centred and respond better to intersectional identities
Determining eligibility based on functional impairment, not medical diagnosis
Developing a clear, consistent and fair definition of reasonable and necessary supports
Identifying developmental concerns in children early and providing evidence-based supports
Improving home and living supports
Removing some of the confusion about the roles of intermediaries
Growing a skilled workforce
Proportionate regulation and improved quality and safeguarding framework.
Read more detail analysis here.
Earlier this month the NDIA released the final element of the Specialist Disability Accommodation (SDA) Pricing Review process – the SDA Pricing Review 2022-23 Demand Projections Report. The Report provides demand projections for SDA both in terms of geographic locations and design categories. It goes through to 2042. Read the full analysis here.
On October 30 the NDIA will begin to roll out their new business system PACE. The introduction of the system will see a number of significant changes including:
The end of service bookings as a way to manage NDIS plan funds and assure provider payment
Introduction of 'endorsed providers'
Updates to plan flexibility rules, and support catalogue terminology
New processes and templates for support coordinators and psychosocial recovery coordinators.
These changes will affect each organisation differently, but all providers that use the NDIA Provider Portal will need to be aware of what is changing. More details are available at our 1hr workshops.
*Correction: Please note this newsletter originally stated that some (Commissioners) want to "see special education phased out." This was inaccurate and should have referred to special schools as settings rather than special education as a discipline, we apologise for this oversight.