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New Operational Guidelines: the Good, the Bad and the Lengthy

The NDIA have changed their policy across 3 new Operational Guidelines. Sara covers all the important bits and the less favourable items.

By Sara Gingold

Updated 15 Apr 20243 May 2021

Operational Guidelines (OGs) were the first love of many an NDIS nerd. If you are the type of person who lives just to dive into policy detail, they are pretty much irresistible. But as with many first loves, they lost relevance over time. The original drafts were long, with some outdated information and oh so much jargon. The NDIA has been on a mission to revamp these documents. Recently, they released a document explaining the principles used when making funding decisions, as well as three new sets of guidelines on:

  • Reasonable and Necessary
  • Creating Your Plan
  • Your Plan

While the NDIA has not exactly earned our trust in recent months, this was a necessary move. The old guidelines (or the OG OGs, if you will) weren’t exactly accessible documents. By contrast, the new versions speak directly to participants in plain English – most of the time.

Before we get started, it’s worth noting that according to past Administrative Appeals Tribunal (AAT) rulings, legislation trumps OGs. If an OG and the NDIS Act contradict each other, follow the Act. The OGs are only supposed to be a manual for operationalising the legislation itself. These new OGs are based on the NDIS Act of 2013. But since the government plans to put a new version of the legislation before parliament in the near future, we can probably expect the release of extra-new OGs at some point. 

But that’s getting ahead of ourselves. What do these OGs actually say? There is too much information for us to summarise it all here, so we’ve highlighted some of the most notable additions and comments below.

 

MAINSTREAM SERVICES

In NDIS terms, “mainstream services” means every government service not funded by NDIS, and it’s kind of a touchy subject. The old planning guideline included a handy table of guidance (in the appendix, go figure!) on which supports are most appropriately funded by other mainstream services and which are the responsibility of the NDIS. It was the clearest and most comprehensive piece of guidance we had on these interfaces, so it is disappointing it wasn’t included in the latest version and has been taken down from the NDIS website. Luckily, its near cousin, the COAG principles, is still here to pick up some of the slack. 

While Appendix 1 has disappeared, mainstream services are a central focus of the new guidelines. There is a huge emphasis on encouraging participants to find somebody else - literally anybody else - that might fund the support. They go so far as to say: 

“We won’t fund the support if the support should be provided by someone else, even if the other service system doesn’t actually provide it. We’re not the funder of last resort, so we don’t make up for other organisations and systems that don’t provide the supports they should.”

This seems to be a stance the NDIA has just made up without actually consulting the Act. In the past, the AAT has concluded that the NDIS should take responsibility for funding disability-related supports not provided by any other service. The leaked draft of the new legislation shows the government is actively trying to close this loophole. But since the new legislation yet hasn’t gone to parliament, that whole paragraph seems a bit premature. 

The website now also includes a “Would We Fund It?” page, which explores various examples of supports the NDIS might or might not fund. As much as it pains me to admit it, practical examples are probably a far more accessible comms device than a huge table found in the appendix of a ridiculously long document (but we’ll love you forever Appendix 1 – RIP). However, people have raised concerns online about the conclusions of some of the examples. The examples about generators were particularly controversial, as they concluded that it would not be reasonable and necessary for the NDIS to fund back-up generators for lifesaving assistive technology, as guaranteeing electricity supply is a state and territory responsibility. In the past, the AAT has declined to fund generators (albeit for a different reason). This might be a situation where legally the NDIA has a case, but morally their stance is much more questionable.

  

PLAN DURATION

The Creating Your Plan OG provides a useful guide to determining the length of plans. For people with relatively stable support needs, plans can be up to 36 months long. Considering what a pain in the arse plan reviews can be for participants, it is really useful to know how often they actually need to happen. It also lists the circumstances in which the NDIA might insist on a shorter plan duration, as when a person has an unstable living situation or requires behaviour support. Interestingly, the OG states that plans should only be 12 months long if a person has a Capacity Building budget of over $15,000. The OG also says: 

“We might also give you a shorter plan if you need extra help to link in with supports. Or, you might need extra help to use your funding according to your plan. For example, we could give you a shorter plan and include funding for Support Coordination.” 

The implication seems to be Support Coordination = shorter plan. However, funding for Support Coordination is not amongst the criteria in the appendix.

 

SCHEME SUSTAINABILITY

Unsurprisingly, scheme sustainability is a huge focus of the OGs. One of the earliest subheadings in the reasonable and necessary OG is “How do we manage the financial sustainability of the NDIS?” There is a lot of discussion about the NDIS being an insurance model which invests in capacity building and independence so that support needs decrease over time. That’s a pretty good message, but it tells participants:

“So other things being equal, you should expect your overall plan value to reduce over time as the benefits of capacity building are realised.”

What’s concerning here is that it suggests the default will be to decrease plan budgets. This is a problematic interpretation of an investment model. Building capacity doesn’t necessarily result in plan budgets decreasing compared to current levels – it might instead result in plans growing less over time than they otherwise would (capacity building for a person with a degenerative condition is a perfect example of this). Moreover, capacity building is a complex and time-intensive process. People take steps forward and backward, and progress is rarely linear.

 

INFORMAL SUPPORTS

The OG says that the success and sustainability of the NDIS depends in part on “people accessing their informal support network to get the help they need from day to day.” While we have always known this to be the case, it is interesting to see the NDIA publicly acknowledge that the NDIS would be unsustainable without informal supports, especially considering that one of the justifications for introducing the NDIS was to alleviate some of the pressure on unpaid carers.

The flipside of that is that there is more of an acknowledgement of the important work carers do and the impact of caring responsibilities. The new OGs set out far more clearly than the original documents the considerations the NDIA uses to determine whether it is suitable for an informal support to provide the support. These considerations are: 

  • How old your carers are and their capacity to provide the support.
  • If other family members and the community can help provide your informal supports in their caring role.
  • The intensity and type of support you need, and if it’s appropriate for your informal supports to provide this, based on their age and gender.
  • Any long-term risks to the wellbeing of your informal supports.

 Note these are direct quotes from the guidelines, with the ‘you’ in this context being the participant.

 

GOALS 

A considerable amount of ink is dedicated to discussing goals. The OGs remind participants that: 

  • Setting a goal in your plan doesn’t mean we must give you funding to pursue it. Setting more and bigger goals doesn’t mean we will give you more and bigger funded supports.
  • Setting a goal about a detailed type or amount of support you might want doesn’t mean we have an obligation to fund that support or in that amount. 

The NDIA has been taking a similar line in recent AAT cases. Of course, the argument is broadly speaking correct. Supports need to meet all the reasonable and necessary criteria, and simply stating you want something in your goals has never been enough to get it funded. Otherwise, my goals could read as follows: “to get a puppy,” “to buy a house,” and “to visit the Pyramids.” But it is not clear why the NDIA is putting so much energy into hammering this point home.

 

ASSESSMENTS

There is a section in the Creating Your Plan OG that talks about NDIA-requested assessments by an assessor unknown to the participant. This should not be confused with the Independent Assessments (IAs) program we have been hearing so much about of late. As that program has not started, the OGs only refer to the NDIA’s powers to request assessments as they currently stand.The guidelines say they can request an assessment if: 

  •  It will help them create your plan.
  • They don’t already have the information.
  • The benefits outweigh the time and cost.

Therefore, the criteria are pretty broad. However, the OG specifically states people can refuse to do an assessment. This is noteworthy, because the NDIA has previously taken the position that the legislation would not need to change to make IAs compulsory. The OG does say that, without IAs, they “might not have enough information to understand and approve the supports you need,” so it’s fair to assume that refusing an assessment would not be without consequences. 

 

PLAN SUSPENSIONS FOR OVERSEAS TRAVEL

The Your Plan OG provides more details on the rules about suspending plans while people are overseas. Given that overseas travel is pretty much out of bounds for all of us at the moment, this was a slightly depressing section to read. But if – *fingers crossed* – the world does open up again one day, this is useful information to have.  

Generally, plans are suspended if a participant goes overseas for more than six weeks. But the NDIA has powers to make exceptions if the participant or their family members are overseas for study, work, humanitarian purposes, through their role in the military, or to seek medical treatment. They can also grant an exception if someone is stuck overseas for reasons they can’t control – like a global pandemic. 

 

RISK

To finish on a high note, the OG’s discussion about the NDIA’s risk appetite for funded supports was actually quite impressive. It speaks about the importance of balancing reasonable risk with the safety of the participant and others. It’s not revolutionary, but it is well explained.

The NDIS is in a constant state of flux these days, and we are all pretty over it. However, we have only scratched the surface of these important documents, so it’s definitely worth checking them out for yourself.

Authors

Sara Gingold

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