NDIS Mission Critical: September Edition

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

New NDIS Law

The new NDIS law has just passed parliament. Some of these changes will come into effect from October 3^rd 2024, whereas others will be phased in over a longer timeframe. These include:

A new way to define NDIS supports: The NDIS Bill is highly dependent on a definition of an NDIS support, but doesn't define it in the Bill itself. After a brief consultation, the Government is finalising transitional Rules that define an NDIS support. Information about ‘the far-reaching draft lists of NDIS supports’ is detailed in this article . Final legislative Rules will be developed with states and territories in the future.
Changes to access: The legal definition of an NDIS support will also inform access decisions. Under the access criteria, applicants will need to require ‘NDIS support’ for their lifetime rather than just ‘support’.
‘New' v 'old' framework plans: The Bill makes the distinction between ‘new’ and ‘old’ framework plans. New framework plans will be developed based on a needs assessment, and this process has not been designed yet. The NDIA have advised that new framework plans will be rolled out mid-2025 following updates to PACE. Participants will be notified about when they will transition to a new framework plan. Old framework plans are developed through the current process of plan reassessment, with some notable changes (see below).
Planning for 'old framework plans': For old framework plans, Planners will still consider each support against the reasonable and necessary criteria. Additionally, from October 3rd, people will only be able to receive support for impairments they met the access criteria for, and the definition of an NDIS support will replace the 'most appropriately funded by the NDIS’ part of the reasonable and necessary criteria.
Notice of impairment: From January 2025, once a person meets access, the NDIA will provide a ‘notice of impairments’. This will state what impairments the person has met the access criteria for. The NDIA will only be able to fund supports arising from impairments that meet the access criteria at the time of planning. Existing participants will also receive a notice of impairment prior to their transition to new framework plans.
Change of situation: Under new framework plans the NDIA will be able to determine when a person can request more funding in the middle of the plan. In future, the NDIA will only be able to add more funding to a plan in very specific situations. These include when crisis or emergency funding is needed because of a significant change to support need, there is a threat to the person’s life, health or safety, or they have been victim to fraud or financial exploitation.
Compliance: The NDIA will have new compliance tools to deal with situations where a person spends their funds on non-NDIS supports or not in accordance with their plan, such as spending too quickly. This includes changing the way the plan is managed, imposing shorter plan periods through a plan variation and raising a debt. These changes, including the decision not to waive a debt, will be appealable.
Revocation: The NDIA will be able to request information or an assessment to determine a person’s ongoing access to the Scheme. If the person doesn’t provide it within the set timeframe (and it was reasonable for the person to have complied) the NDIA may choose to revoke the person’s access to the Scheme.
New claims and payment framework: Providers will need to make claims within two years. There will be a 12-month grace period to get older claims in. These powers are enforceable when the law comes into effect, but the details are still unclear.

You can read more in our article NDIS Bill: the changes coming soon.

Provider Viability Summits

DSC will be in Brisbane, Sydney, Melbourne and online next month to talk all things provider viability. These summits will explore cost savings, increasing revenue, where to invest and the impact of the new legislation on providers. Discounted early bird pricing ends this week.

Changes to NDIS Commission’s powers

The new NDIS Act also makes changes to the NDIS Commission’s powers. Current provisions restrict delegation of compliance and enforcement action to only 12 NDIS Commission SES officers. Under the new arrangements infringement and compliance notices will be able to be issued by less senior staff to enable greater efficiencies and faster response times. More serious actions such as banning orders and civil penalties, will continue to only be issued by SES employees.

There is also a new power to make NDIS rules which specify conditions for approved quality auditors such as requiring them not to engage a person who is banned from providing NDIS services. Under the new legislation the NDIS Commission will need to notify approved quality auditors when a banning order is made against a person who is engaged by them.

Change in Leadership

There is about to be a significant change in leadership in the NDIS.

NDIS Minister Bill Shorten has recently announced his retirement from federal politics. He will remain the Minister for the NDIS until February 2025.
Louise Glanville has been selected as the new NDIS Quality and Safeguards Commissioner. Louise is currently the CEO of Victorian Legal Aid and is the former Deputy CEO of the NDIA.
Disability rights lawyer and Chair of the NDIS Provider and Worker Registration Taskforce, Natalie Wade has been appointed in the role of Associate Commissioner. Natalie will assist with the NDIS Commission as it tackles registration reform.
Michael Phelan APM will conclude his role as Acting Commissioner on 30 September 2024, when Louise and Natalie commence their roles.

Separation of NDIS Housing and Supports on the Horizon

The NDIS Review and Disability Royal Commission (DRC) both recommended some form of separation of support and housing in Specialist Disability Accommodation (SDA). In its response to the DRC recomendations, the government has committed $49.7 million for design and consultation to support better home and living options for NDIS participants. This includes targeted compliance activities and an education campaign to ensure SDA providers meet their existing conflict of interest obligations. It also includes funding to conduct design activities to explore the legal separation of SDA and SIL.

Last year the NDIS Commission completed an Own Motion inquiry into supported accommodation and is now progressing its action plan.

The NDIS Commission’s is now focussed on:

reviewing the NDIS Practice Standards,
developing new NDIS Practice Standards for group homes, and
separating supported SIL and SDA.

The NDIS Commission is currently consulting and invites providers who deliver in-home supports in group settings to talk to them in August and September 2024.

The consultation process is based on this discussion paper:

Find upcoming consultation dates on the NDIS Commission's website.

Foundational Supports

The Commonwealth and state and territory governments are working together to design and deliver foundational supports for people with disability outside the NDIS.

The Department of Social Services is running an introductory webinar on:

the different types of foundational supports, and
upcoming opportunities to contribute to the national public consultations on foundational supports.

The webinar will take place at 12pm (AEST) on 20 September 2024. You can sign up via Humanitix.

Independent Health and Aged Care Pricing Authority (IHACPA)

The Australian Government has requested that IHACPA identify opportunities for future reforms to NDIS pricing. This includes reviewing existing pricing approaches and developing a pricing data strategy. The government has yet to decide on whether it will transfer the responsibility for developing pricing from the NDIA to IHACPA as recommended by the NDIS Review. Current NDIS pricing activities remain with the NDIA and its Board including work related to the 2024-25 Annual Pricing Review. IHACPA wants to hear about what is important to consider in pricing the NDIS, how pricing approaches can best operate, and what does and doesn’t work. To keep up to date:

Insiders Podcast with Dr Rhonda Galbally Former Disability Royal Commissioner

A few weeks ago, the government responded to the recommendations of the Disability Royal Commission. Of the 222 recommendations, only 13 were accepted in full. Rhonda speaks to David Speers about what she thinks about the government’s response in this 22-minute podcast.

NDIS Commission Market Insights

The NDIS Commission has published a high-level analysis of complaints data. The Commission took a detailed examination of 1,500 randomised complaint records for the period 1 October 2023 to 31 December 2023. 68% of complaints related to support worker services - 40 % of which were in daily and community supports and 28% in home and living. A disproportionate number of complaints were about support coordination and plan management (17% of all complaints but only 6% of the market). Complaint themes differed according to service type. Read the full Market Spotlight Summary online.

Price Differentiation Summary Report

The NDIS Commission undertook a keyword search review of complaints data to identify if there were systemic themes in price differentiation practices. 668 complaints were further analysed to identify price differentiation practices, themes and service types. Price differentiation complaints were broken down into subcategories to understand the different kinds of practices and themes occurring. Subcategories included overcharging, additional hours and extra service terms and a different price for the same product or service. Read the Price Differentiation Summary Report online.

NDIS Commission Grant

Another ‘Support for NDIS Providers’ Grants Program funding round has now been announced. In this funding round the NDIS Commission is seeking applications for grant projects that address the area of quality and safeguarding.

Eligible activities may include:

Development and trial of innovative, co-designed pilot programs and initiatives
Knowledge translation, including theory to implementation pathways
Digital products, including apps, podcasts and e-products
Interactive environments, including online and in-person
Practical resources
Reflective practice toolkits

The minimum funding available is $300,000.00 with a maximum of $800,000.00.