NDIS support lists released- finally!

My oh my- the government really does love leaving its homework to the last minute, doesn’t it?

Yesterday (ish) the government finally released the Transitional Rules to define an ‘NDIS support’. Literally just in time for Thursday, when the new legislation will come into effect.

We tried to bring you breaking news yesterday, but here’s a peak behind the curtain for ya: we got so deep into the detail that we were drowning. We couldn’t tell our goat therapy (not an NDIS support) from our assistance animals (definitely an NDIS support). Also, while NDIA published a press release saying that the transitional Rules had been released, they weren’t on their bloody website (they only just put them up!). The whole thing was, to put it bluntly, a mess.

Anyway! Under the new legislation, these lists have major ramifications for access, planning, plan reassessment and how participants can spend their plan. Which is why it would have been nice to see them a tad earlier.

The Rules are transitional because the legislation requires the federal government to work with the states and territories to develop finalised Rules. However, getting the states and territories and federal government to agree on anything has historically been… tricky. So from October 3rd, the Transitional Rules will apply until the unforeseen future.

The Transitional Rules include a list of supports that can and cannot be funded under the NDIS (unless a substitution applies - read more on that under the substitution heading). On August 4th, the Department of Social Services (DSS) opened a very brief consultation into a draft version of the lists. If you need to play catch up, you can read more about it in our article: the far-reaching draft lists of NDIS supports.

DSS says the lists have been finalised following a significant month-long public consultation– which feels a bit like an oxymoron. They received 6,180 survey responses, 919 email responses and 120 submissions, highlighting just how invested people are in this issue.

In this article, we explore the potential impacts of the lists under the new legislation, key differences from the draft version, the substitution powers, and what the government now says can and can’t be funded.

But before getting into it– and this is important– goat therapy is now on the “out list”. So no NDIS funding to look into those weird square pupils on those damn cute faces.

Why are these Rules so important?

Under the new legislation, the definition of an NDIS support has major implications for nearly every element of a participant’s NDIS experience.

Key changes include:

People applying for the NDIS will need to demonstrate that they need an ‘NDIS support.’
People won't receive funding in their plan for a non-NDIS support, unless they have been approved under the replacement process (more on that below).
Flexible NDIS funding can’t be spent on non-NDIS supports without NDIA approval. Anyone who spends their funding on non-NDIS supports, or not in accordance with their plan, might face compliance action.
Participants seeking to access non-NDIS supports will need to apply to the NDIA for a replacement and demonstrate that they meet the various criteria.

What’s in?

Here’s a quick look at what’s on the list of NDIS supports. We’ve highlighted some changes from the draft version that might be significant.

Accommodation assistance or tenancy assistance - this category names a range of supports that would help someone build capacity, find and keep appropriate accommodation. Medium term accommodation has been added to the list.
Assistance Animals - there is now a definition of an “eligible assistance animal” which can be found on page 2 of the Rule). They have also added grooming, medication, and reviews to maintain accreditation.
Assistance in coordinating or managing life stages, transitions and supports - these are disability related supports to help people with transitions. The draft version only mentioned support to transition from a health setting, but mental health, educational, employment, living, and custodial settings have been added.
Assistance to access and Maintain Employment or Higher Education - this also now names self-employment and micro-enterprise.
Assistance with daily life tasks in a group or shared living arrangement - this category covers support for tasks of daily living in group settings. Short Term Accommodation and respite are included in this category.
Assistance with travel or transport arrangements - support for people that cannot travel or use public transport independently. This now includes in-kind specialist school transport and travel training.
Assistive equipment for recreation - assistive products used for sport and recreational activities.
Assistive products for household tasks - products that help with domestic and everyday activities in the home. This has been expanded to capture food, drink, gardening, cleaning and laundry products. It includes upgrades or modification to household items, delivery, adjustment, assessment, and training in those products, along with maintenance.
Assistive products for personal care and safety - products to assist with self-care. There’s more detail now about modified food, adaptive clothing, products for washing and drying the body, menstruation products including applicators and period underwear, adaptive furniture, visual and tactile alert systems, as well as assessment and maintenance of these products.
Specialist positive behaviour support - unlike the draft list, the new list mentions the development and delivery of interim and transitional plans.
Communication and information equipment - includes information about assistive products that help receive, send, produce and process information in different ways, training for the participant in communication and information products, and maintenance.
Community nursing care - there are now additional examples of specialist clinical care.
Prostheses and Orthoses - now includes design, fit, prescription by qualified person, osseo-integrated external products, training, and maintenance.
Daily personal activities - this is the broad category that includes supports that assist with daily living tasks. It clarifies that this includes assistance with eating, drinking, dressing, hygiene, moving and positioning, and in-kind personal care in school.
Development of daily care and life skills - another really broad category about supporting people with independent living. Unlike the draft list, the list now names psychosocial recovery supports in this section. It also lists the activities such as shopping, meal prep, finance management, personal care management, travel, and learning social skills.
Disability-related health supports - this section of the list had serious surgery (sorry). It now includes specialist allied health services and supports that facilitate enhanced functioning and reintegration after new spinal cord injury or severe acquired brain injury. It also includes training for informal supports
Early Intervention supports early childhood - this category includes therapists and now key workers.
Exercise physiology and personal well-being activities - now includes personal exercise programs to increase or maintain a person’s functional capacity, as well as maintenance of muscle strength, range of motion, balance and mobility.
Group and centre based activities - this now references cultural activities.
Hearing equipment - for a person to receive hearing equipment, these supports must be directly related to a person’s permanent hearing impairment, and not be received through the Hearing Services Program.
High intensity daily personal activities - more information about the definition of “high intensity” can be found on page 2 of the Rules.
Home modification design and construction - new list now allows for internal and external building modifications where that is needed to fix damage arising “exclusively from disability-related behaviours or use of NDIS funded assistive technology or equipment”.
Household tasks - includes house and yard maintenance, meal prep and delivery, and cleaning.
Innovative community participation - this category now talks about people who need tailored support to participate in activities.
Interpreting and Translation - cultural activities are added here, where translation is needed as a result of a person’s disability.
Management of funding for supports - aka plan management.
Participation in Community, Social and Civic Activities
Personal mobility equipment - additions have been made to include assistive products for walking, motorised mobility devices, hoists, training for participants in the equipment, and maintenance.
Specialist Disability Accommodation
Specialised Driver Training - must be provided by a specialist instructor.
Specialised hearing services - a clarification has been added that allied health professionals can provide specialist audiological assessments and prescriptions to participants with complex needs.
Specialised Supported Employment - the Rule removes the language of Australian Disability Enterprise (ADE). Instead, it says supports that help a participant prepare for, find, and retain a job in a setting of the person’s choice.
Support Coordination - the word “specialist” has been removed from the title of this category, to recognise all levels of support coordination.
Therapeutic supports - captures evidence-based therapies, now with psychosocial functioning named here.
Vehicle Modifications - this now names hoists, modified controls, restraints, certification costs, services to assess, prescribe, deliver, adjust and train in the modsification, and maintainance.
Vision equipment

This list has a third column, which tells you who is eligible for the “in list” support. But it’s not easy reading.

It is also not enough to show that a support is on the in list. It must also not be on the out list.

What’s out?

Ok, so what won’t the NDIS fund?

The “Out List” has softened their language on a few supports (for instance, sex toys, menstrual products, and gym memberships).

But the NDIS won’t fund:

Day-to-day living costs - accommodation and household - these are costs related to the home, like rent, mortgages, furniture, insurance, maintenance and household items. The definition of standard household items has been kept broad, which is likely to open up a whole fresh debate.
Day-to-day living costs- finance and payments - an extra dot point has been added to include health insurance, ambulance membership, gap payments for Medicare-funded services and private health insurance claims.
Day-to-day living- costs food and groceries - the Rules now say NDIS can fund meal delivery platforms where the cost of food preparation and the cost of the food can be separated. Modified foods (including for percutaneous endoscopic gastrostomy feeding) can also be funded.
Day-to-day living costs lifestyle - this is the category where they’ve put all the fun stuff- from legal cannabis, to toys, to dating apps. Couple of small additions here include smoking cessation products (ok maybe that’s not so fun), sim cards, costs associated with professional sports and accommodation to attend or participate in events. Participants can apply through the replacement process to have assistive technology like smart watches funded, but internet services, phone plans and data would remain excluded.
Day-to-day living costs- clothing and beauty - now includes body art, tattoos and henna.
Day-to-day living costs- travel and transport - this section lists the types of transport the NDIS won’t fund. Personal mobility devices (like e-scooters, skateboards and electric bikes) and transport for children that’s part of a parent’s reasonable responsibilities have been added.
Day-to-day living costs- pets - pets and the associated costs of their upkeep, with the exception of assistance animals. ‘Pet insurance’ has been added to the list, but that was kind of the vibe of the draft anyway.
Day-to-day living costs- reproductive health and family related - surrogacy and fertility treatments. These were also included in the draft under ‘lifestyle related’, but, presumably because people took offence to that categorisation, they now have their own category.
Not evidenced-based- alternative and complementary therapies - these are therapies that the NDIS doesn’t consider evidence-based. It is a wide range, from animal therapy to crystal therapy.
Not evidence-based- wellness and coaching- another group of therapies the NDIS doesn’t consider evidence-based, include gaming therapy, sports supplements, and mastermind coaching. The draft version said general massage would not be funded, but the Rules give more detail ‘massage that is not provided by an allied health professional for disability related purposes.’
Not evidenced-based- energy and healing practices related - with the exception of reiki, these are mostly things I’ve never heard of.
Unlawful goods and services - NDIS funds can’t be used for illegal activities. While that in itself is not shocking, it’s worth noting that it includes restrictive practices not authorised by state and territory governments.

The non-NDIS supports list also includes services that fall under the jurisdiction of other government departments. However, not all the services listed under each of these categories are actually funded by other parts of government. For example, ‘airline lounge memberships’ are listed under ‘transport’, but it’s unlikely any government funded transport services in the country actually provides that particular service.

The categories that are not the responsibility of the NDIS include:

Health services- like the diagnosis and treatment of medical conditions. Surgical treatments and contacts lenses have been added since the draft version. It has now been clarified that while palliative care is not an NDIS support, people can continue to receive NDIS supports while in palliative care.
Mental health services- the treatment of mental health conditions and mental health supports that are ‘clinical in nature.’
Child protection- including child protection services, guardianship services, parenting programs, etc.
Early childhood- this includes things like child care. However, a significant addition to the out list since the draft is ‘early childhood supports or therapies to support the general child development needs of a child.’ Anticipating future intergovernmental debates about what therapies are for a child's ‘general development’ and what are disability specific therapies.
School education - this includes general education services and the costs of making the school system more accessible to people with disability. Work experience as part of a school program has been added to the list.
Higher education- like with school education, this includes both general university and TAFE services, and reasonable adjustments they might make to support people with disability. Though transport between education activities and training is no longer on the out list.
Employment - specifying that the NDIS won’t fund Disability Employment Services, Workforce Australia services, supports that fall under an employer’s responsibilities, and employer support programs.
Housing and community infrastructure- housing services other than Specialist Disability Accommodation.
Transport- includes public transport, transport infrastructure, community transports, transport fees, etc.
Justice- the NDIS will not fund day-to-day supports for people in custody, secure psychiatric facilities, pre-sentencing psychological reports, etc.
Aged care- the NDIS will not fund any services that fall under the definition of aged care in the Aged Care Act 1997 or which are provided to people who entered aged care facilities over the age of 65. Interestingly, this section does not go into the support needs of NDIS participants over the age of 65, who may need more in-home support as they age.
Income replacement- including income support payments, rent subsidies, and income supplementation.

Replacement Process

People can apply to the NDIA for funding for some supports on the “out” list. This will be called a “replacement process” (previously referred to as “substitution”). Applicants will need to demonstrate that the support meets various criteria.

To summarise the replacement criteria in section in 10(6) of the Act, the support must:

replace an NDIS support, and
deliver the same or better outcomes, and
be of equal or lower cost to the total amount of the support(s) it would replace, and
and meet the criteria in rules.

The Rules clarify that there are only two categories of supports that can be substituted. This is something we didn’t know until yesterday. Each category has their own additional criteria.

The categories are:

Category 1: Standard commercially available household items.

In addition to the criteria in s10(6) above, people can access “standard commercially available household items” if they can convince the NDIA that:

It is necessary to address the needs of the participant arising from the impairment they meet access for; and
It increases whole task independence; and
It reduces or eliminates the need for a support worker or disability specific assistive technology.

Category 2: Smart watches; tablets; smartphones; an app used for accessibility or communication purposes

In addition to the criteria in s10(6) above, people can access these items if they can convince the NDIA that:

The support is necessary to address communication or accessibility needs arising from the impairment(s) they meet access for.

Even if a person provides the NDIA with evidence that a support meets the criteria described above, the NDIA can still decide not to approve it. The NDIA’s decision to not allow a replacement support is not a reviewable decision.

We don’t yet have the details of how to apply for a replacement or when the process will be open. The government has said it will “responsively” design this replacement process with the community.

Transitional arrangements

There are two important transitional rules relating to people with plans approved before 3rd of October 2024.

First, if the support is ‘stated’ in the plan, it can be funded even if it is on the out list. There is some confusion about whether this includes situations where a support is described in the plan but the transitional Rule uses the word ‘stated’.

Second, if the Administrative Appeals Tribunal has approved funding for a support, the NDIS will recognise it as an NDIS support even where it now appears on the out list.

Transitional measures for debts

DSS and the NDIA have assured people that they will not pursue compliance activity for minor mistakes for 12 months. The DSS report said there will be a transitional rule created. These transitional rules will mean that the NDIS will not raise debts where the cost of the prohibited support is: either less than $1500; or the person has not been given at least two warnings for supports that are less than $1500.

The report also says, “The rule will apply to participants for a period of 12 months and to registered plan managers and providers for a period of 30 days following the commencement of the Amending Act”. So looks like providers have thirty days to get across all these details… wow.

Purchases on supports that are not NDIS Supports over the value of $1,500 will give rise to a debt.

Conclusion

This is the biggest change to the NDIS since it was introduced. These lists impact everything from planning to spending to compliance. There’s a lot to digest.

Here’s a link to the transitional Rules.

The NDIS's updated Operational Guidelines.

Still soaking in the detail? Come hangout with us.

DSC’s brilliant Todd Winther, Lisa Duffy and Chris Coombes are running a webinar very soon on these lists - New NDIS Supports in Practice: What’s In and What’s Out?

DSC is running a workshop for providers on getting across the details of these new laws- The New NDIS Law: What Providers Need to Know

Check out our article- New NDIS Act: timeline of changes

PWDA responds to the lists.

The NDIA media release.

The NDIA’s full consultation report on the lists.

Inclusion Australia’s plain language explainers of the laws.

Artwork by Melissa Pym - Learn more about Melissa.

While we are certified geeks, neither Sara nor Chris are lawyers. This is not legal advice and should not be relied on as legal advice. Do seek out legal services for information about how this new rule relates to your situation. Seek legal support and advice from Ask Izzy.