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Potential New Access and Eligibility Hoops

The game could be changing for entrants to the NDIS. In our second article exploring the NDIA's recently released consultation papers, Sara explores the proposed future of NDIS access.

By Sara Gingold

Updated 15 Apr 202430 Nov 2020

Last week, the NDIA surprised everyone by releasing three discussion papers that signalled dramatic changes in the NDIS. Importantly, these papers are requests for community feedback. They are notpolicy (well not yet, anyway), but the changes they propose will transform the Scheme as we know it. 

The three papers cover: 

  •  access and eligibility policy for independent assessments; 
  • planning policy for personalised budgets and plan flexibility; 
  •  supporting young children and their families early, to reach their full potential.

We are covering each paper separately. You can find our article on the Personalised Budgets and Plan Flexibility Paper here. In this article, we are going to be looking at the access and eligibility policy for independent assessments. 

As very few people are still transitioning from state and territory programs, access and eligibility issues are set to be a defining feature of the upcoming era of the NDIS. The proposed changes, publicised for feedback, would alter the pathway of all new entrants into the Scheme.

 

ACCESS LISTS ARE GOING 

One of the biggest takeaways from the paper is that the NDIA is proposing chucking out their access lists. The access lists give people streamlined entry into the NDIS if they have particular diagnoses, or if they have received support from certain programs in the past. Many of the Scheme’s current participants came through one of these pathways. The lists are: 

  • List A: disabilities on this list are considered likely to meet the access criteria. Therefore, the only evidence usually required is proof of diagnosis. 
  • List B: disabilities on this list are considered likely to be permanent. The person still needs to demonstrate significantly reduced functional capacity. 
  • List C: this is a list of state and territory programs with similar eligibility requirements to the NDIS. People supported by these programs were considered to meet the disability requirements.  
  • List D: disabilities on this list are considered likely to meet the early intervention access criteria. 

Under the proposal, List C would remain in effect in Western Australia until mid-2023. 

In the Discussion Paper, the NDIA argues that these lists were necessary during the wild days of transition, but they are no longer appropriate. This makes sense for List C, as most people have already transitioned from the state and territory programs. 

Effectively, these changes would mean that everyone applying for the NDIS will go through the same eligibility process. The vast majority of people will need to undergo an Independent Assessment (IA) of their functional capacity. The NDIA has also said they will be  releasing new Operational Guidelines for access and eligibility. 

 

INDEPENDENT ASSESSMENTS 

We now also have more information on how IAs would fit into the access process:

 The ‘initial eligibility requirements’ referred to in Step 2 is to provide evidence that the person meets the age and residency requirements, and that they have a disability that is likely to be permanent. Only participants who meet these requirements would be referred for an IA. The IA then informs the access decision made by the NDIA delegate.

 

EVIDENCE OF THE DISABILITY IS LIKELY TO BE PERMANENT 

It does not appear that the NDIA intends to change the definition of when a disability is likely to be permanent. However, they do promise to provide more ‘guidance’ on this criterion. According to the paper, this guidance will: 

  • outline what we need from medical professionals to understand the permanence of a person’s disability
  •  provide detail on the most appropriate treatment system for health conditions 
  •  clearly deal with the issues arising from the functional capacity impacts of chronic, acute and terminal health conditions.

Evidence of permanence would still come from the applicant’s treating medical team. It will not be determined in IAs. 

The second and third points in the list above suggest they are looking to crack down on people with what they consider to be ‘health conditions’ accessing the NDIS. This is further reinforced in one of the discussion questions: 

 ‘How should we make the distinction between disability and chronic, acute or palliative health conditions clearer?’

It is worth pointing out here that the NDIS Act does not focus on diagnosis, but instead defines disability as a substantial reduction in functional capacity. Differentiating between disabilities and health conditions that cause significantly reduced capacity is impossible. 

 

ELIGIBILITY REASSESSMENTS

One of the biggest fears about IAs for many NDIS participants is that they will be used to revoke people’s eligibility from the Scheme. The paper does confirm that the idea is to refer people for an eligibility reassessment if an IA shows significant improvement in capacity. IAs may be used to inform the eligibility reassessment, but it would be an NDIA delegate making the decision. The NDIS Act does currently allow the Agency to review a participant’s eligibility for the Scheme, so this would not be a change. What would be new is the role of regular IAs in triggering the process. 

 

ADDITIONAL EVIDENCE 

It is still not clear whether the NDIA is proposing to take into consideration additional evidence of reduced functional capacity as part of the access request. Many people with a disability already have comprehensive allied health assessments that you would think could help inform an access decision. 

The NDIA does suggest in the paper that there might be some circumstances where they request additional specialist reports or assessments.

 

REVIEW

Access decisions would remain reviewable decisions, meaning that the applicant can request an internal review and then appeal to the Administrative Appeals Tribunal (AAT). 

However, IAs themselves would not be considered reviewable. This is because they are not technically ‘decisions’ but instead provide evidence that informs decisions. Effectively, this would mean that assessors have a lot of power and very little accountability. Applicants will only be able to seek a second assessment if there is a change in circumstances or ‘the assessment was not consistent with the independent assessment framework.’ Disagreeing with the results of an IA will not be grounds to request a new assessment. 

 

EXCEPTIONS

Under the proposed changes, NDIA delegates will be able to grant exceptions for IAs. The limited circumstances where an exception can be granted include: 

a)        Risk and safety:where the process is likely to do more harm than benefit to the individual, and may pose a safety risk to the individual or the assessor (this may include where paranoia is present and severe, there are severe behaviours of concern, or specific trauma related concerns which can’t be alleviated).

b)        Assessment is inaccessible or invalid:where there may be concerns about the process producing valid information and other sources and/or forms of information are better suited (e.g. a support person can’t be identified to complete relevant components of the independent assessment).

The decision not to grant an exception would not be reviewable. 

DISCUSSION QUESTIONS

At the end of the paper, there is a list of 10 discussion questions:

 Learning about the NDIS 

1.        What will people who apply for the NDIS need to know about the independent assessments process? How this information is best provided?

Accessing the NDIS 

2.        What should we consider in removing the access lists?  

3.        How can we clarify evidence requirements from health professionals about a person’s disability and whether or not it is, or is likely to be, permanent and life long? 

4.        How should we make the distinction between disability and chronic, acute or palliative health conditions clearer?  

Undertaking an independent assessment

5.        What are the traits and skills that you most want in an assessor? 

6.        What makes this process the most accessible that it can be? For example, is it by holding the assessment in your home? 

7.        How can we ensure independent assessments are delivered in a way that considers and promotes cultural safety and inclusion? 

Exemptions 

8.        What are the limited circumstances which may lead to a person not needing to complete an independent assessment? 

Quality assurance 

9.        How can we best monitor the quality of independent assessments being delivered and ensure the process is meeting participant expectations? 

Communications and accessibility of information 

10.  How should we provide the assessment results to the person applying for the NDIS? 

Submissions are due at 10 am on the 23rd February. 

Interestingly, there are no questions asking whether people want the NDIA to go ahead with IAs, but they say they welcome ‘any feedback on the policy as it is outlined in this paper.’ Therefore, just because they are assuming IAs are a done deal, it doesn’t mean you will need to!

Click here for more information about making a submission. 

Click here to read the full Discussion Paper. 

Authors

Sara Gingold

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