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Quality and Safeguarding November Update

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By Jessica Quilty

Updated 15 Apr 20242 Nov 2023
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It can be hard keeping up to date with all the new developments in the quality and safeguarding space. But don't worry we got you covered, here's your November update.

Direction given to NDIS Commissioner

NDIS Minister Bill Shorten has issued a direction under the NDS Act to the NDIS Quality and Safeguards Commissioner, Tracy Mackey. The direction requires the Commissioner to develop policies and procedures for staff to take timely, firm and appropriate action against NDIS providers who fail to comply with restrictive practice requirements under the Act. This includes:

  • using all available powers under the Act, including banning orders, suspending and revoking registration, pursuing civil penalties, and referring matters to the police where appropriate. 
  • swiftly responding to complaints and reportable incidents concerning the use of restrictive practices and conducting timely and appropriate investigations.
  • working collaboratively with the Agency to ensure people’s safety by sharing information (as permitted by law); and
  • actively monitoring registered NDIS providers’ compliance with the conditions of registration relating to behaviour support plans (BSPs) and restrictive practices.

The Commission is required to set time frames in which it aims to respond to complaints and reportable incidents. It must also develop a procedure to support the timely and efficient collection, analysis, and dissemination of information relating to the use of behaviour support and restrictive practices.

These policies and procedures are to be published on the Commission’s website as soon as practicable after coming into effect. The Commission was required to provide a report to the Minister by 31 October 2023 and every three months thereafter, outlining the steps it has taken to implement this direction.

Providers Fined over Behaviour Support and Restrictive Practices

The NDIS Commission has stepped up its compliance action, issuing 22 infringement notices to six registered NDIS providers carrying a combined total of penalties of almost $400,000. The Commission has since issued a further 40 infringement notices, carrying penalties of a combined total of almost $780,000, as well as compliance notices to thirteen Specialist Behaviour Support Providers and registered NDIS providers. The Commissioner said it was alleged that each provider had breached a condition of their registration by failing to either develop a BSP within the legislated time frame, lodge a BSP with the NDIS Commission, clearly identify restrictive practices in a BSP, or report unauthorised restrictive practices. 

Providers on Notice

On the 23rd of October the NDIS Commission issued a stern warning to more than 3,000 providers registered to use regulated restrictive practices, reminding them of their legal obligations under the NDIS Act and related Rules. Acting Deputy Commissioner, Practice Quality and Clinical Advisory, Kenneth Teoh, has put providers on notice that the NDIS Commission had escalated its compliance and enforcement approach, and urged providers to take “immediate action”. Common contraventions by NDIS providers include failures to:

  • authorise restrictive practices in accordance with the authorisation process 
  • develop a behaviour support plan within the timeframe
  • lodge a behaviour support plan with the Commission
  • use restrictive practices in accordance with behaviour support plan
  • meet requirements for how a behaviour support plan is developed; and
  • meet requirements for contents of a behaviour support plan.

Read the full media release here.

New Policies and Guidance

The NDIS Commission has a number of resources to assist providers to comply with their obligations regarding behaviour support and restrictive practice. Including the following new resources just released:

  • Policy Guidance: Developing Behaviour Support Plans: This Policy Guidance outlines the NDIS Commissioner’s expectations of specialist behaviour support providers and NDIS behaviour support practitioners when developing behaviour support plans that contain regulated restrictive practices.
  • Regulated Restrictive Practices Summary and Protocols: This template replaces the existing regulated restrictive practice protocols in the NDIS Commission’s behaviour support plan templates. It was informed by extensive consultation and represents the first step in the release of a revised suite of behaviour support plan templates. Use of this template is not mandatory, however specialist behaviour support providers are expected to ensure that they update and align their practice with this guidance to promote the reduction and elimination of regulated restrictive practices.

Irabina Autism Services Independent Review

The NDIS Commissioner has engaged an eminent former Judge Hon Jennifer Boland AM to conduct an Independent Review into the Commission's regulatory response into Irabina Autism Services (operating under Aruma). This follows a recent Four Corners investigation into the controversial service. The review seeks to confirm whether the Commission's response has been appropriate, proportionate and consistent with its quality and safeguarding functions and powers. A written report containing the results of the review is to be provided to the Commissioner no later than 31 December 2023. You can read the full scope of the review here.

Price Differentiation Guidance 

The NDIS Commission is taking action to address price differences in the NDIS provider market, following reports that some providers are charging NDIS participants more for the same services than those delivered outside the scheme. Commissioner Tracy Mackey said any price differentiation, where a provider sets a higher price for a product or service offered to NDIS participants compared to others would need to be justified. "Where a price difference cannot be justified, it may be considered a ‘sharp practice’ and constitute a breach of the NDIS Code of Conduct." The NDIS Commission has developed guidance material to help participants and providers identify where sharp practices may be occurring and what action they can take in response.

Regulatory Burden Insights Report

Throughout May and June 2023, the NDIS Commission ran workshops with providers to hear feedback on the impact of NDIS regulation. Providers were invited to discuss regulatory and compliance challenges, as well as opportunities for improvement in regulatory processes without compromising participant safeguards, rights, and service quality. The Commission has now published its insights report with three key themes emerging from the consultations: 

  • Providers' role in supporting participants to access other services and supports. 
  • Regulatory reporting and the administrative burden associated with requirements. 
  • Information and resources available to support providers.

Evidence Matters

The NDIS Commission has produced a collection of resources to promote the use of evidence-informed practice. Evidence Matters summaries can be used for:

  • Worker professional development and supervision.
  • Improving the quality of behaviour support plans and practitioner practice.
  • Informing a person’s decisions about their care.
  • Guiding organisations undertaking continuous quality improvement activities.

The following resources are now available:

NDIS Workforce Capability Framework Resources

The NDIS Workforce Capability Framework describes the attitudes, skills and knowledge expected of all workers funded under the NDIS. The NDIS Commissioner, says “the Framework translates the NDIS Practice Standards and NDIS Code of Conduct into observable behaviours that service providers and workers should demonstrate when delivering services.” 

To support the implementation of the Framework, the NDIS Commission has released a full set of resources including:

  • Recruitment and Selection Resources
  • Workforce Management and Planning Tool and strategy document
  • Supervision and training guidance
  • A Career Options Guide for current workers
  • Self-assessment quiz for workers interested in the sector.

Own Motion Inquiry - Platform Providers

In September, the NDIS Commission released the results of its Own Motion Inquiry into platform providers in the NDIS marketplace. From 1 July 2022 – 31 December 2022 over 13,000 participants engaged services through a platform provider. The Commission says there is a place for platform providers in the NDIS but raised concerns that safeguarding practices are varied and often insufficient.

  • It found that many workers and providers believed the workers on the platform were employees even when they were not. When the Commission attempted to compare prices across platform providers, it found it complex and unclear with mixed pricing models used. The Commission’s follow-up actions include helping participants to make informed decisions about platform providers, establishing consistent and best practice to safeguarding across all platform provider services, increasing transparency around pricing, regulating the platform workforce more directly and addressing privacy concerns. Read more detailed analysis here

Own Motion Inquiry - Support Coordination and Plan Management

Part 1 of the Own Motion Inquiry into support coordination and plan management has been completed and examined complaints and reportable incidents received by the NDIS Commission relating to intermediaries. Incidents and complaints included concerns around conflict of interest and support coordinators not working with care and skill. Plan management complaints included non-payments, wrong payments, late payments and overpayments. The Inquiry also found that plan managers and support coordinators play a valuable role in quality and safeguarding particularly when they are independent.

Part 2 will examine whether the NDIS Commission should make any changes to how it regulates intermediaries. This stage will not be conducted until the NDIS Review hands down its final report. Read a more detailed analysis here.

WA Authorisation of Restrictive Practices (ARP) Policy change 

The Department of Communities (WA) has released updated Procedure Guidelines for Authorisation of Restrictive Practices in NDIS Funded Disability Services (Stage Two). The Procedure Guidelines and the Quality Assurance Panel Outcome Summary Report form were updated in September 2023 and are located under the Authorisation of restrictive practices resources webpage.

Victorian Senior Practitioner e-Learning Modules

The Victorian government has produced a series of eLearning modules designed to provide information about identifying restrictive practices and the authorisation process in Victoria. It includes modules for:

  • Identifying restrictive practices
  • Authorisation process and key roles
  • Legislative requirements
  • Restrictive Intervention Data System (RIDS) 

The Advocacy Standards Project

The Advocacy Standards Project aims to develop a  formally recognised and auditable Australian standard for the funded advocacy sector. Older Person’s Advocacy Network (OPAN) and Disability Advocacy Network Australia (DANA) are working together to create the new standard and want your feedback. Find out how you can have your say (including booking in to face to face or online sessions) on the DANA website.

Disability Royal Commission

As you will no doubt be aware the Disability Royal Commission has handed down its final 12 Volume Report. If you missed our summary of the Royal Commission findings that relate to NDIS and quality and safeguarding matters, please catch up here. We also recommend checking out Volume 10 Disability Services for more details on proposed changes to NDIS practice standards, quality indicators, guidelines and more. Make sure you checkout our upcoming Disability Royal Commission webinar series to help you get across the recommendations.  

NDIS Review

A review of NDIS Quality and Safeguarding Framework has formed part of the Independent Review into the NDIS. The Framework set an initial vision for a nationally consistent, proportionate and whole-of-scheme approach to ensuring effective safeguards and high quality supports in the NDIS. While many parts of the Framework have been operationalised, including the establishment of the NDIS Commission, the Review says some parts have not been implemented as expected, or at all. After six years of operation, the Framework is getting a full review to ensure it remains fit for purpose and reflects the lived experiences of the disability sector. We expect to see the final report toward the end of the year and will provide further analysis in due course. 

Catch you then!

Authors

Jessica Quilty

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