The far-reaching draft list of ‘NDIS supports’

On 4^th August, NDIS Minister Bill Shorten published a list aimed to provide a ‘clear definition’ and ‘greater clarity’ of what constitutes NDIS support. When/if the new NDIS Bill becomes law, this list will decide what supports people can purchase. The list includes 36 categories of supports that the government has defined as NDIS supports and 15 categories of services that are not NDIS supports. It’s basically a naughty and nice list, minus Santa Claus or any form of Christmas cheer.

The list is currently only a draft. Public consultation and an online survey through the Department of Social Services website is open until 18^th August. Talk about a blink-and-you-will-miss-it timeframe.

Having a list of this kind represents a fundamental change in how the NDIS operates. Currently, what supports the NDIS funds is determined by two factors: it must meet the reasonable and necessary criteria for that individual; and can’t fall into the categories of supports that the NDIS Rules says the Scheme doesn’t fund. In the current Rules, there are a handful of broad criteria for services the NDIS won’t fund. Things like ‘day-to-day living costs’ and ‘income replacement.’ Whereas this list gets uber-specific with examples like ‘smoking paraphernalia’ and ‘furniture removal services.’

You could write a whole dissertation about this list- what’s missing, the contradictions, the controversies and all the ways it will impact participants. But you still couldn’t cover everything- it would become one of those never-ending PhDs that comes alive and devours its creator. So, in this article, we’re going to provide you with the information and let you draw your own conclusions on what’s most relevant to you. Except when I just can’t resist making a snarky comment (or two).

What is this list and why is it happening now?

The government currently has a new NDIS Bill before the Senate. Under the Bill, the concept of an ‘NDIS support’ has major implications for planning decisions, plan flexibility, access and early intervention. The Bill doesn’t go into detail about what constitutes an NDIS support, but it says the federal government will develop more detailed Rules with the state and territory governments once the Bill has passed. Rules are legislative instruments that provide more detail about how a piece of legislation- like the NDIS Act- should be implemented in practice.

However, these new Rules must have unanimous agreement from the federal government and all the states and territories. Making it a long-term, highly ambitious, and (some would argue) utopian project.

In the meantime, the Minister will develop transitional Rules to define an NDIS support. The transitional Rules can be developed by the Minister without the approval of states and territories. This list will form the basis of those transitional Rules.

Unless a spirit of cooperation seizes all Australian governments in the next few months or the NDIS Bill never passes the Senate, this list is likely to become the de facto definition of NDIS support for the foreseeable future. It will change bits of the Applied Principles and Tables of Support (APTOS) from policy into law and allow the NDIA to say no to supports previously found reasonable and necessary by the Administrative Appeals Tribunal or Federal Court.

The proposed NDIS Bill also gives the NDIA debt-raising powers or the ability to change a person’s plan management type if they do not spend their funding on an NDIS support or in accordance with their plan. The government has said that it only intends to use these powers for cases of outright fraud. But there remains a legal risk that people could have a debt raised against them for not spending according to this list.

So long-story-short: we have to get this right.

What is an NDIS Support- the nice list

There are 36 categories of NDIS supports in the list. Each category includes a description, and some categories include exclusions.

We’ve pulled out a couple of things of note, but make sure you check out the full list for all the details.

The categories are:

Accommodation/tenancy assistance
Assistance animals
Assistance in coordinating or managing life stages, transitions and supports- including support coordination, mentoring, peer support and skill development.
Assistance to access and maintain employment or higher education- this has to be most frustrating category description to get your head around. There is considerable overlap between the description of NDIS funded supports and the exclusions. For example, support to ‘obtain and/or retain’ employment and ‘individual employment support’ are NDIS supports. But ‘work-specific support related to recruitment processes, work arrangements or the working environment’ is excluded.
Assistance with daily living in a shared living environment- this category includes both Supported Independent Living (SIL) and short-term respite accommodation. The description says it’s support provided ‘in a shared living environment.’ It’s therefore unclear whether this would allow people to do more innovative respite options- like stays in Airbnb’s with a support worker.
Travel and transport
Assistive equipment for recreation
Assistive products for household task
Assistive products for safety and personal care
Specialised behaviour supports
Communication and information equipment
Community nursing
Prosthetics
Assistance with daily living activities
Development of daily living and life skills
Disability-related health supports
Early childhood early intervention supports
Exercise physiology and personal wellbeing activities
Group and centre-based activities
Hearing equipment
High intensity daily living supports- provided by a support worker with additional qualifications or experience.
Home modifications
Household tasks- meal prep and delivery can be included in this category.
Innovative community participation- interestingly the description says this is for ‘mainstream providers’ to ‘enable participants to access mainstream activities.’ So it’s unclear whether disability service providers would also be able to provide this support.
Interpretation and translation- when not available from a mainstream service.
Plan management
Participation in community, social and civic activities
Mobility equipment
Specialist Disability Accommodation (SDA)
Specialised driving training
Specialised hearing services
Specialised supported employment- including Australian Disability Enterprises (ADEs).
Specialised support coordination
Therapy supports
Vehicle modifications
Vision equipment- not including prescription glasses.

Things the NDIS won’t fund

As mentioned above, the government’s proposal includes a much more detailed list of supports the NDIS will not fund. We’re literally talking about replacing a handful of dot points in the current Rules, with 10 pages of examples. The list of supports the NDIS won’t fund also includes some exceptions, which the NDIS might fund in some circumstances.

The largest category is ‘day-to-day living cost.’ The examples range from ‘groceries’ to ‘taxidermy.’ I guess everyone’s day looks different? As has been flagged in the media, sex work and sex toys would also become prohibited supports. There are things you seriously have to wonder if anyone acting in good faith has ever tried to claim, like jewellery and political contributions. Other items are more mainstream daily living costs, like utility bills and takeaway food.

The day-to-day living list includes some exceptions, including for daily living costs occurred ‘solely and directly’ as a result of the participant’s disability. Which can be both a high and highly subjective bar.

Another category is dedicated to supports the government considers ‘not value for money/ not effective or beneficial.’ This will probably prove controversial, as it includes supports some people value such as yoga therapy, sound therapy and reflexology. But there are also examples less likely to provoke debate, like tarot readings and crystal therapy. Beauty services wouldn’t be funded, including nail salons. General massage would be out, but therapeutic massage ‘directly related to a participant’s disability support needs’ might be funded.

Unlawful goods and services, unsurprisingly, will also not be claimable. You’ll have to purchase your fake designer handbags via other financial means.

The NDIS can also not provide income replacement, including income support payments.

The other categories in the no-no list are supports and services that should be funded by other government services, like health, education, justice, etc. This list is kinda similar to the applied principles and tables of services (APTOS), which determines funding responsibilities between the NDIS and other government services. For example, significant changes have been made to Justice and Employment sections. And APTOS is a bilateral agreement signed off on by all governments, whereas this list has been signed off on by literally nobody outside of the federal government.

Exceptions

On Monday, Labor proposed a last-minute amendment to the NDIS Bill, which gives a participant a chance to change to request funding for a support on the “naughty list.”

The NDIA might agree that a participant can access one of these supports, if it meets all of these criteria:

The support would replace one or more NDIS funded support for that participant, and;
It is the same cost or less than the total cost of supports it is replacing for the participant, and;
It would provide the same or better outcomes for the participant than the support it is replacing, and;
It meets any other conditions specified in the (currently unwritten) NDIS Rules.

Having exceptions is a positive step, but there are still a fair few hoops people have to jump through. For example, it is not enough to show that the smartwatch reduces hospitalisations. It would also need to replace other NDIS supports. According to the amendments, there may also be other criteria around exemptions set out in Category A rules.

The participant or their representatives will need to apply directly to the NDIA for an exception.

Participate in the consultation!

Consultations closes on 18^th August! Which is a very short time frame, for a very important document. So, make sure you check out:

The full draft list of NDIS supports

The online survey

The Easy Read version of NDIS supports

The consultation discussion paper

Information on how to contribute to the consultation

A note on reading the list; the term ‘carve out’ is used to describe exceptions. But keep in mind that in the list of things that are an NDIS support, the carve-outs are things the NDIS won’t fund. However, in the list of things that aren’t an NDIS support, the carve outs are things that might be funded. All very logical and easy to follow!

For more analysis:

DANA has released a statement that they are ‘extremely concerned’ about the draft list.
The Growing Space Facebook page is exploring examples of forbidden supports that can be beneficial, including smart watches, hair and nail salons, and sex toys.
In the latest Reasonable and Necessary Podcast Dr George Taleporos, Sam Paior and DSC's Chris Coombes explore the implications for narrowing the NDIS and whether "support lists" are an innovation killer.