NDIS won't fund...Alternative Therapies?

DSC’s We Wouldn’t Fund it series sets out to bust myths about supports that the NDIS won’t fund. It’s common knowledge, for example, that the NDIS funds occupational therapy and exercise physiology. But how often do we hear statements that the NDIS does not fund chiropractic, sexual therapy, sex work, art therapy, and music therapy? Using decisions by the Administrative Appeals Tribunal (AAT) that have approved funding for these therapies, we debunk myths and explore tips for securing alternative therapies.

Discussing alternative therapies is important for two major reasons. First, with recent plan cuts and AAT matters soaring, it’s crucial to make sure that any and all evidence for therapies is watertight. Second, we want to ensure people receive therapies that build their function early, reducing the need for future supports.

Before listing decisions on alternative therapies, I want to first disclose my bias. My sister is a chiropractor. My partner is an art and nature therapist. Singing in the shower is the definition of therapeutic. And sex? Well, I enjoy s…ongs about sexual healing (Hi mum!). You won’t find a person more in favour of funding alternative therapies.

But after reading nine AAT cases and one federal court decision about alternative therapies, you’d be forgiven for thinking the NDIA is as biased as I am… in the anti-alternative therapy direction.

For this purpose, we're defining alternative therapies as those therapies that the NDIS often pushes back on funding.

Myth Busting

Myth 1 – NDIS won’t fund chiropractic.

Myth 2 – NDIS won’t fund music therapy.

Myth 3 – NDIS won’t fund applied behavioural analysis therapy, as seen here, here, and here.

Myth 4 – NDIS won’t fund two hours per week of speech therapy, as seen here and here.

Myth 5 – NDIS won’t fund a trial of art therapy, horse therapy, Zumba dance classes, self-expression therapy, yoga, or Pilates.

A support needs to meet all the criteria set out in section 34 of the NDIS Act and the Supports for Participants Rules before the NDIA will fund it. And each person is unique – an alternative therapy that is funded for one person won’t necessarily be funded for another.

Effective and Beneficial

Before the NDIA can fund a therapy, one of the criterion it needs to satisfy is that “the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice” (s 34(1)d). This is often a sticking point for alternative therapies, and the AAT is the arena where we see debates about good practice and evidence based play out. Because the “effective and beneficial” criterion features so heavily in these cases, I focus on it for this article.

Below are three steps that will make a journey through the AAT less difficult:

1.     Find the right therapist

As highlighted by Natalie Wade at DSC’s Home and Living Conference, it’s advantageous to engage an NDIS-savvy, appropriately qualified therapist in the relevant discipline as early as possible in the review process. That can be difficult in thin markets, but to persuade the NDIA or the Tribunal, a report must spell out the evidence base and research behind the recommended therapy. The report must also recommend a specific quantity of hours and justify why this amount is required to achieve the goals with regard to each criterion in s 34 of the Act.

A solid report will not simply refer to peer-reviewed literature behind that therapy but will also include observational data. The participant, where possible, would attend the therapy several times in person, so the therapist can pair observation (using standardised tools, where they exist) with their professional recommendations. 

It’s critical that the report links the functional gains from or goals of the therapy to the specific participant’s NDIS goals. For example, if a music therapist observes that Sam’s ability to focus on a task has improved from two to three minutes over the past 10 weeks of weekly therapy, how might this connect with Sam’s goal of maintaining a conversation or gaining employment? 

2.     Defend evidence

Public decisions reveal the NDIA’s thinking as to what it considers best practice. In many cases, you will have to justify why the evidence you are presenting is stronger than the NDIA’s. In the case of a trial of art therapy or another alternative therapy, for example, the NDIA commissioned a report from an emeritus professor who described the evidence base for art therapy as “weak”. 

However, based on evidence from the applicant, AAT Senior Member Chris Publick rejected the professor’s assertion and approved a trial of an alternative therapy:

The literature, both in Australia and internationally is extensive and the value of arts-based therapies in the management of both mental and physical health conditions is overwhelming. (MY 2021: 37)

 Building the ability of disabled people and their carers to identify gaps in their evidence or stand by evidence that is already sufficient is vital to ensuring a fairer NDIS.

3.     Lived experience matters

Gaps in the evidence might be filled with testimony from the participants’ and carers’ perspectives. A statement of lived experience gives people the opportunity to describe their function and the benefits of the alternative therapy in their own words. The NDIA has, in the past, challenged the value of lived experience. In KM* vs NDIA, for example, the Tribunal noted the following:

The NDIA submit[ed] that [the applicant’s] evidence of her “lived experience” [was] of limited probative value because s 34(1)(d) necessarily requires a degree of objectivity that is lacking in her evidence and that of Dr Young. (85)

However, Senior Member Toohey rejected the NDIA’s stance:

[The applicant’s] “lived experience”, which I understand to mean her first-hand knowledge, experience and understanding of her conditions and various treatments, will inevitably be subjective. How much weight “lived experience” should be given will depend on all of the available evidence. Where it is consistent with reliable, relevant, independent evidence, it will likely be given a good deal of weight. Where it is at odds with other evidence, it may be given less weight. Where reliable, relevant, independent evidence is lacking, evidence of “lived experience” may be particularly important. (Toohey 2021, MY v NDIA)

The sentence above is so nifty that I’ll repeat it: “Where reliable, relevant, independent evidence is lacking, evidence of ‘lived experience’ may be particularly important”. Not only does the Senior Member’s decision invite the NDIA to attach value to lived experience statements, as required in Rule 3.2b of the NDIA’s Supports for Participants Rules, it also acknowledges that therapists are not the be-all and end-all in the process.  

So, what might a funky, compelling lived experience statement look like? Hamza is a person who lives with spina bifida. Like the applicant in the KM matter (2015), Hamza wants to demonstrate to the NDIA and/or the Tribunal Member that chiropractic therapy is effective and beneficial. Alongside evidence Hamza submits from his clinical team, he chooses to record his voice in a statement he provides to the NDIA and the Tribunal. Hamza details his ability to do everyday tasks (without chiropractic) and what he notices in his own ability to move through space after attending the chiropractor. Hamza tells the Tribunal that, after going to the chiropractor, he is able to complete more physical tasks, including getting his Milo from the pantry, which is at shoulder height. He reports that this added function lasts about four days (an effect he’s observed after the eight chiropractic sessions). This enables him to prepare afternoon tea without a support worker. An NDIS Appeals advocate or legal aid worker can give Hamza other ideas about additional information that would support his request.

 Final Tips

Before we close, here are some broader steps you can take to reduce the burden of external reviews:

1. If you have the evidence that the support is reasonable and necessary and you have sufficient funds in your plan, have a conversation with your Plan Manager about purchasing the support. Or, if you are self-managed and it meets the requirements, consider purchasing the support. The checklist on page 8 of the NDIS Guide to Self-Management is your best friend here.

2. The AAT’s data shows us that the NDIA and participants at the AAT reach some kind of agreement before hearing in the majority of matters. This process can take a long time and can be exhausting. If you are able, seek legal advice before making a decision to withdraw.

3. Engage an advocate early (noting that most advocacy organisations were at capacity before the 300% increase in AAT matters reported in December 2021).

If you have the energy, make the request for that alternative therapy. Not only does the insurance portion of the NDIS depend on people receiving reasonable and necessary therapies early, but alternative therapies can also help a person live an extraordinary life.

Author’s comment

This is not legal advice. For legal advice, contact your state or territory legal aid or the DSS advocacy finder tool, which can be found here.

* DSC’s policy not to name AAT applicants in order to respect their right to privacy.

Resources

 VALID, 10 Steps to Excellent therapy Reports 

https://www.valid.org.au/10-steps-excellent-ndis-therapy-reports

 Summer Foundation, Getting the Language Right

https://www.summerfoundation.org.au/wp-content/uploads/2018/04/getting-the-language-right-web.pdf

 DSC, NDIS Report Writing 101

https://teamdsc.com.au/resources/ndis-report-writing-101

 DSC, Allied Health: Supporting Access and Planning

https://teamdsc.com.au/learning/allied-health-supporting-access-planning

 DSC, We Wouldn’t Fund it – Myth Busting

https://teamdsc.com.au/resources/we-wouldnt-fund-that

 DSC, We Wouldn’t Fund it – Gyms

https://teamdsc.com.au/resources/gym-memberships-on-ndis

 PIAC, Open Letter from the Disability Sector calls for Greater Accountability re NDIA Settlement Outcomes

https://piac.asn.au/2020/07/20/open-letter-from-the-disability-sector-calls-for-greater-accountability-re-ndia-settlement-outcomes/