Quality and Safeguarding November Update

There have been so many developments in the quality and safeguarding space of late you’d be forgiven for missing a few. We usually send this newsletter out just to the quality nerds but we think there is some vital information for everyone to get across this edition.

NDIS Bill No. 2

The NDIS Quality and Safeguards Commission (NDIS Commission) has published a consultation paper proposing changes to the NDIS Act. The NDIS Commission is inviting feedback on the consultation paper, which will be used to inform an exposure draft of Bill No.2. The exposure draft will be published no earlier than Autumn next year.

The NDIS Commission’s consultation paper has proposed 10 new measures:

New statutory duty for key personnel of NDIS providers requiring them to exercise due diligence to comply with the NDIS Act.
New statutory duty for NDIS providers to ensure their conduct does not cause adverse effects to the health and safety of participants.
Increased penalty framework, including the ability for higher penalties to be sought for failing to comply with the NDIS Act and introducing new criminal offences and civil penalty provisions for breaches.
Anti-promotion orders to crack down on unscrupulous advertising.
Evidentiary certificates to be used as acceptable evidence in some court matters instead of NDIS Commission Officers needing to attend.
Expansion of the categories of people who a banning order can be imposed against to include consultants, auditors and business advisors.
Making the registration condition requirement to provide both information and documents clearer.
Shorter timeframes for providers to produce information or documents when there are safeguarding concerns.
Requirement that information be held in Australia.
Information gathering – delegation of rule-making powers to the NDIS Commissioner.

We go into more detail in this article Consultation on NDIS Bill No. 2 if you want to learn more.

The NDIS Commission has published questions on its website to inform submissions which close 20 December 2024. Find the full consultation paper and set of questions on the NDIS Commission's Reform Hub.

Regulatory Reform Roadmap

The NDIS Commission has released its Regulatory Reform Roadmap, which shows the timeline for the Commission’s reform activities until December 2025. This includes mandatory registration of Supported Independent Living (SIL) services, Platform Providers and Support Coordinators. These providers will commence the transition into mandatory registration no earlier than July 2025. A survey for unregistered providers is currently open. The NDIS Commission says consultation papers relating to mandatory registration will be added to their reform hub webpage by December with the next public session for consultation to be held early 2025.

The NDIS Commission will also be consulting on the definition of a NDIS provider and regulatory model for self-directed supports. Learn more in our article Breaking: The NDIS Commission's reform agenda- major changes ahead!

New Digital Compliance Register

The NDIS Commission has now launched a new digital compliance register (to replace its lengthy spreadsheet). It allows users to search for NDIS providers and individuals to check if the Commission has taken any compliance action against them. The NDIS Commission says this is critical information for anyone looking to secure the services of a provider or worker. You can search the register by business or individual name, ABN and/or state, and filter your results by the type of compliance action taken, for example, a banning order or compliance notice.

NDIS Commission’s action plan for intermediaries

Last year the NDIS Quality and Safeguards Commission (NDIS Commission) commenced an Own Motion Inquiry into support coordination and plan management. The NDIS Commission has now published its action plan which includes the following initiatives:

Coordinate market stewardship activities and develop a cross-agency strategy. Timeline: Commenced and ongoing
Mandatory registration for support coordination, and new registration conditions for plan management and support coordination to reduce conflicts of interest. Timeline: Consultation – Q4 2024 to Q1 2025 (transition to be informed and determined through consultation)
New Practice Standards for plan management, support coordination and intermediary type supports. Timeline: Co-design – Q1 2025 to Q4 2025
Plan Managers to be moved from a verification audit to certification audit. Timeline: Consultation – Q4 2024 to Q1 2025 (transition to be informed and determined through consultation)
Strengthen regulatory action that responds to poor quality practice. Timeline: Q1 2025 to Q1 2026
Improve communication on good practice and key issues for plan management and support coordination. Timeline: Ongoing

Read the full Part 2 Action Plan on the NDIS Commission website.

Conflicts of interest in the NDIS Market

The NDIA has published the NDIA Position Statement Conflicts of Interest in the NDIS Provider Market. Following codesign, the NDIA has developed a Position Statement, information and resources to support and educate participants and providers on conflicts of interest in the NDIS.

These resources include:

an NDIA Position Statement
conflict of interest information on the NDIS website
a participant guide to managing conflicts of interest
updated information for support coordinators
other support specific factsheets which include case studies that describe common conflict of interest situations
checklists to help participants and providers manage conflicts of interest

The position statement explains how providers should align their current conflicts of interest policies and procedures with the NDIA position statement. Visit the Conflicts of interest webpage for the NDIA’s position statement, conflict of interest declaration form and service specific resources.

Open letter to Platform Providers

In September last year, the NDIS Commission released its Own Motion Inquiry into how Platform Providers operate in the NDIS market. The Inquiry found that more was needed to safeguard participants and improve service quality. In October, then Acting Commission Michael Phelan wrote an open letter to Platform Providers advising them of the Commission’s expectations and impending regulatory activities.

In addition to moving to mandatory registration, the NDIS Commission has developed a participant guide to Platform Providers and commenced an evaluation to understand the NDIS Commission’s effectiveness in regulating Platform Providers to ensure quality and safety for participants. The NDIS Commission says it continues to collaborate with the NDIA and engage with Platform Providers, and other regulators (including the ACCC, Fair Work Commission and Fair Work Ombudsman) to progress issues identified in the Inquiry.

Acting Commissioner Phelan outlined a number of expectations he had of Platform Providers, including that they actively inform providers on the platform of their obligations under the NDIS Code of Conduct and alert participants that NDIS providers and workers on platforms sometimes increase their hourly service fee to accommodate their platform related charges. They also floated a number of other measures being considered by the Commission, such as compelling Platform Providers to share information prepared by the NDIS Commission and requiring them to notify the NDIS Commission of any service providers excluded from the platform. If this is of interest to you, read the full letter on the NDIS Commission’s website.

NDIS Commission Annual Report

The NDIS Commission has published its 2023-2024 annual report which showed an increase in compliance activity taken against providers. In this period, the NDIS Commission conducted two civil penalty proceedings and increased the issuance of banning orders by 34.7%, compliance notices by 162.5% and registration revocations by 79.8% from the previous year. The number of infringement notices also increased more than tenfold in the same period, while the number of warning letters issued quadrupled.

The NDIS Commission reports commencing regulatory action to address integrity risks related to applicant registration. This responds to concerns about consultants acting on behalf of applicants through the registration application process. This has led to an escalation in regulatory response from the Commission, including through:

Increase in registration application refusals (2,483 in 2022–23 compared to 10,514 in 2023–24) - this includes where applicants failed to engage an auditor to assess them.
Referrals to the ACCC for potential breaches of Australian Consumer Law, which included the identification of potential breaches by consultants making false and misleading claims about NDIS provider registration and audit outcomes.
A review of over 1,500 audit reports showed suspicious identical responses in around 1,000 applications, suggesting integrity issues.
Further investigation of 130 consultancy websites highlighted problematic claims of guaranteed registration and audit success, posing risks to the NDIS.
Following these findings, the NDIS Commission referred the matter to the ACCC and is collaborating with the ACCC, the NDIS Taskforce and JASANZ to address these integrity and fraud concerns.

The Annual Report includes loads more information about the NDIS Commission regulatory actions and priorities. You can download it from the NDIS Commission’s website.

ACCC puts NDIS businesses on notice

The ACCC has been working with the NDIA and the NDIS Commission to identify advertising that may be in breach of the Australian Consumer Law. With changes made on the 3rd October to what is considered to be an NDIS support, the ACCC is concerned that many businesses continue to advertise goods or services that appear on the “out” list. The ACCC is concerned that NDIS participants will be left with substantial personal debts if they purchase supports that won’t be funded and says it is investigating multiple NDIS providers, anticipating public enforcement action in the near future.

The ACCC has identified what false or misleading advertising might look like including:

The use of the words ‘NDIS approved’, as the NDIS does not have the function of approving or endorsing particular goods or services.
Advertising suggesting NDIS funds will cover “all inclusive” holidays, when general costs associated with holidays would not be covered by NDIS funding.
Meal delivery services suggesting the cost of meals is covered by the NDIS, when the NDIS does not cover food expenses.
Advertising that provides instructions on how to use NDIS funding codes to cover costs of recreational services that are not covered by the NDIS – for example, going to the movies or a theme park.
Advertising that suggests a business is affiliated or endorsed by the NDIS, by using NDIS in its business name or in the description of its services, for example, ‘NDIS therapies’.

Read the full media release on the ACCC website.

Quality Supports Pilot

The NDIA has announced two pilot initiatives under the Agency’s new Quality Supports program. The Agency will select established NDIS providers who have experience delivering services to participants otherwise at risk of not receiving the support they need. The pilots will focus on support coordination and SIL, including those that support people with complex needs. The pilots are designed to help the Government identify ways to incentivise and pay for high-quality supports. Both pilots will run for 12 months and will be evaluated to inform the delivery of support coordination and SIL services moving forward. To find out more information and the eligibility criteria to participate visit the NDIA’s Quality Supports Program webpage.

New Observing Practice Quality App

The Living with Disability Research Centre at La Trobe University has launched a new observing practice quality (OPQ) app. The app is available to download from the App Store and Google Play and is designed for auditors, frontline supervisors, frontline managers, practice coaches and service quality managers. It translates complex research measures into a simple tool for non-researchers interested in monitoring the quality of staff support for people with intellectual disabilities to provide feedback to improve practice. The OPQ app is free to download and use, training on how to use the app is available through a new online training resource.

High Intensity Supports

The NDIA has once again updated the Pricing Arrangements and Price Limits to reinstate the allowable high intensity billing rate for behaviour supports. As of October 1 2024, a support is considered high intensity if it is classified as:

a high intensity daily personal activity or
implementing intensive and complex behaviour supports

A support is considered intensive and complex behaviour support if it is implemented with a participant who during services:

displays frequent behaviours of concern that have a significant effect on their or others’ wellbeing and safety; and
requires intensive support and the implementation of intensive proactive strategies (frequent/daily), skill development, and response strategies. This may include the use of restrictive practices to minimise the risk of harm to themselves or others; and
may, or is likely to, be experiencing other issues that exacerbate or increase the complexity of their behaviour support needs.

To deliver and claim this type of high intensity support provider must:

be implementing behaviour support (as described above) with the participant and in accordance with their interim or comprehensive behaviour support plan; and
be registered and assessed for Module 2A (Implementing Behaviour Support Plans); or
have submitted a registration amendment application or new registration application to the NDIS Commission, including a completed audit assessment against Module 2A by 30 June 2025.

Market Spotlight

The NDIS Commission has published a ‘Market Spotlight’ report on complaints. The report provides a high-level analysis of complaints data themes, in a sample of 1,500 randomised complaint records for the period of 1 October 2023 to 31 December 2023. Of the complaints sampled in the review, 68% were about services delivered by support workers. 40% of these were related to daily and community supports and 28% in home and living. Support coordination and plan management accounted for 17% of complaints. The NDIS Commission flags this as disproportionate given these intermediaries only represent around 6% of the market. Find our full analysis in our article: What we can learn from complaints data.

Victorian Disability Worker Registration Standards

The Disability Worker Registration Board of Victoria, in partnership with the Victorian Disability Worker Commission, has launched a public consultation on proposed changes to the standards for registered disability workers in Victoria. This consultation seeks input from people across the disability sector about the registration standards, whether they are fit for purpose, and if changes or new standards are needed in future.

The three standards under review are:

Criminal history
English language requirements
Continuing professional development (also known as CPD)

There are a number of ways to participate in the consultation including via a survey, email or video submission. Consultation closes - 13 December 2024. To find out more visit the VDWC Website consultation page.

NDIS Commission to commence civil action against Irabina

The Federal Court of Australia has granted permission to the NDIS Commissioner to commence civil penalty proceedings against Irabina Autism Services. The Commissioner commenced court proceedings against Irabina’s former CEO and former General Manager in September this year. Minister Shorten said this civil action should be a warning to providers who are not complying with their obligations under the NDIS Code of Conduct and the Practice Standards.

The court proceedings follow a comprehensive investigation by the NDIS Commission which resulted in both women being permanently banned from ever working with people with disability again. You can find out more about that case and the investigation in our article Independent Review into the Regulatory Response to Irabina Autism Services.

The NDIS Commission filed an originating application and concise statement in the Federal Court on 13 September 2024 which can be accessed from the Federal Court.

Changes at the NDIS Commission

You may have noticed there has been a change up in leadership at the NDIS Commission.

Louise Glanville is the new NDIS Quality and Safeguards Commissioner.
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 concluded his role as Acting Commissioner on 30 September 2024.
NDIS Minister Bill Shorten has also announced his retirement from federal politics. He will remain the Minister for the NDIS until February 2025.

Worker safety

The NDIS Commission now has a webpage dedicated to worker safety. The NDIS Commission says NDIS workers and providers can help ensure a safe and healthy workplace by:

providing a positive workplace culture
assessing the safety risks to workers
understanding rights and responsibilities in NDIS supports and services
providing quality and safe NDIS supports and services
taking steps to prevent and respond to incidents, including identifying and controlling risks, and worker supervision
reporting worker-related violence
having effective behaviour support practices.

The website provides links to a suite of state and territory resources for work health and safety.

That’s it for now if you found this article useful and you don’t usually receive our Q&S updates you can sign up here.