The new NDIS Act [Part 2]

On the 27^{th of} March, NDIS Minister Bill Shorten tabled the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill to parliament.

In last week’s article the New NDIS Act [Part 1] we chatted about the big changes to:

1. Needs assessments

2. The definition of ‘NDIS support’

3. Plan lengths and periods

If you’re here again only for the memes, that’s understandable.

This week we cover:

1. New powers in the bill to monitor and modify plans for participants who over- and under-spend their plan

2. Changes to access

3. Reviewable decisions

4. Alternative commissioning

As we said last week, the Bill has not yet passed parliament and is not law. The Bill has been referred to the Community Affairs Legislation Committee, which will table a report on 20^th of June 2024. The Senate Inquiry are accepting submissions and feedback from the public until May 17^th.

Monitoring and Modifying Plans

What if someone doesn’t spend their funding on NDIS supports?

As discussed last week, Section 10 of the new Act sets a criteria around what can be defined as an ‘NDIS support’- you can find the criteria in last week’s article - the New NDIS Act [Part 1].

If someone doesn’t spend their plan on NDIS supports or in line with their plan, the NDIA will have powers to:

a) change the plan management type (for example, change Self-management to Plan- or Agency-managed);

b) for ‘new framework plans’ (plans developed through the new planning method), specify that some of the flexible budget can be spent only on specified NDIS supports;

c) for any plan, reduce the length of funding periods (e.g. reducing a 12 month period to a 6 month period); and

d) raise a debt.

When can the NDIA decide how a person manages their plan?

The default position remains that people can tell the NDIA how they wish to manage their plan. But the NDIA can override the preference for a management type in plan’s developed under the new planning method if:

A person would likely otherwise suffer physical, mental or financial harm;
funds have not been spent in line with a person’s plan; and
other criteria are met in to be confirmed Rules.

As explained in PIAC’s careful analysis, these powers – especially the second one about plan spending - are rather broad and unbalanced. There is no requirement in the Bill for the NDIA to build capacity or put support for decision-making in place where they identify a misuse (or misunderstanding) of funds.

What new information gathering powers will the NDIA gain in relation to preparing a plan?

In preparing new framework plans, the NDIA can ask for “information that is reasonably necessary” for the purpose of building the plan. Love that they use the term “reasonably necessary.” Does the government realise there are more than 2 words in existence?! The NDIA will also get new powers to request an assessment by a professional to assist them in building a new plan. If a person does not comply within 28 days or convince the NDIA they have a good reason, their current and future plans will be suspended until they follow the Agency’s request.

Reviewable decisions

Will decisions about plan length, funding period or a plan management type be reviewable?

The decision to impose a shorter funding period, plan length, or a specified plan management style will appear in the plan under the Statement of Participant Supports (where the funding dollar amount goes). If a person is unsatisfied with any of these decisions, they can request a review of the decision to approve the Statement of Participant Supports. But the whole Statement of Participant Supports will be reviewable (not just the bit the person is unhappy with).

Is a needs assessment a reviewable decision?

In line with the recommendation of the NDIS Review, the Bill says that future NDIS plans will be developed through a needs assessment (read more on that in last week’s article- the New NDIS Act [Part 1]) . If someone’s needs aren’t accurately captured in the needs assessment, then their funding package will likely be insufficient. There is no clear power in the Bill for a participant to seek an internal review of their needs assessment. But DSS on their website (which is not legislation) said “where a participant identifies that the assessment report does not accurately reflect their needs and circumstances, they can request that a new needs assessment be conducted as part of the review application”.

There is a new power in the Bill for the NDIA to order a replacement needs assessment. What remains unclear is: a) under what circumstance a replacement assessment can be ordered; and b) whether the NDIA’s refusal to order a replacement assessment will reviewable. The government has indicated there are more Rules to come.

Will a person’s reasonable and necessary budget still be reviewable?

A person’s reasonable and necessary budget will appear in their Statement of Participant Supports. The budget as a whole will be reviewable.

Access

What are the proposed changes to access?

Before granting a person access to the Scheme, the NDIA would (in addition to the other criteria) now also need to be satisfied that a person will require an ‘NDIS supports’, as defined in s10, for their lifetime.

Will there be changes to Early Intervention?

To be eligible for the Early Intervention pathway, the Act says that a person must be likely to benefit from an “early intervention support.” The new Bill defines an “early intervention support’ as an ‘NDIS support’- as per Section 10.

Once (if) the Bill passes, professionals writing NDIS reports for access will need to understand S10 and provide evidence about whether a person will be likely to benefit from the supports that match the criteria described in s10 of the Act.

Will there be other changes to access?

Whether someone meets disability-requirements or Early Intervention, or both, will appear in a person’s Statement of Participant Supports. New Access Rules, to be created with states and territories, will further clarify access and Early Intervention tests and set thresholds people need to reach to get into the Scheme. Again, there are a lot of unknowns here, and we don’t know what these Rules will say.

ID: Drawing of a horse, one half is a child’s sketch with the text “Info in the NDIS Bill”. The second half of the horse is a realistic sketch with the text “Info in the NDIS Bill + Rules”

Will the NDIS have more powers to revoke somebody’s status as a participant?

The Bill gives the NDIA the power to request information or reports to assess someone’s on-going eligibility, including an examination by an appropriately qualified person. The Explanatory Memorandum (a document that explains some of the powers in the Bill) says a person can choose the professional who completes the examination or assessment, so long as the information is in the form requested by the NDIA. If a participant does not comply with the request, after 90 days, the CEO may choose to revoke their status. This applies unless the CEO determines it was reasonable for the person not to have complied within that timeframe.

Will people be able to access supports that relate to an impairment they haven’t met the access criteria for?

The NDIA will inform a person if they met access to the Scheme via Early Intervention or the disability requirements, or both. This will be recorded in the Persons Statement of Participant Supports. In plans developed through the new planning system, a person will only be assessed – and a budget built – based on their impairments that met access or Early Intervention criteria for the Scheme. Several Administrative Appeals Tribunal decisions over the past few years have determined impairments that were not listed at access could qualify for supports under Section 34 of the existing Act. Check out page 10 in Public Interest Advocacy Centre’s NDIS Insights 2023-24 Explainer if you want to go deeper into this issue. But when (if) this bill passes, planners and LAC’s will be required to follow the new law; not the AAT decisions relating to the old Act.

For old framework plans (plans developed under the current planning model), a new criterion will be added into the current reasonable and necessary criteria, saying: “the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements”. This means, 28 days after the Bill passes, the NDIA will only be able to fund supports that relate to impairment(s) that meet the disability or Early Intervention requirements.

This raises some questions:

1. What about circumstances where a direct link between an impairment and support need is not clear or even discoverable? Advocates made compelling submissions to the Review on this question. People on the NDIS sometimes have multiple impairments and support needs, that interact and overlap in unclear ways.

2. If a person on the NDIS gets a new impairment, will they need to fill in an access request form for the new impairment?

3. What safeguards exist for people who don’t have impairments listed on the NDIA’s computer system? These might include people who automatically moved onto the NDIS via state and territory programs during its roll-out and don’t have correct information recorded.

Alternative commissioning

Does the Bill enable alternative commissioning?

Alternative commissioning is another way of getting services through the NDIS and was recommended by the 10 year review for certain groups of people. There’s new powers in section 32H of the Bill that are really, really broad. It says that the reasonable and necessary budget – either the flexible or stated components – may specify that funding will only be provided where particular requirements are met. These are:

a) “a requirement that the supports be provided by a specified person or persons in a specified class;

b) a requirement that a specified process be undertaken before the supports are acquired or provided;

c) a requirement that specified conditions be satisfied in relation to the participant before the supports are acquired or provided;

d) requirement to comply with any requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.”

The Explanatory Memorandum says this will allow Alternative Commissioning and gives two examples: evidence-based supports for children under 9 with developmental delay and commissioning supports in First Nations communities where there are thin markets. The Explanatory Memorandum promises… you guessed it… co-design and new Rules.

Auditing

Any hidden gems in the Bill?

The Bill creates a power which will “require an approved quality auditor not to employ or engage a person against whom a banning order has been made”. Yesterday I read a sticker on a bus driver’s window saying, “do not access bus controls through window”. Imagine the situation that made the bus company think “shit, we need a rule against that”! Similar vibes here.

ID: bus window with ‘do not access bus controls through window’ sticker on the outside of the bus.

More resources

Wow, there’s a lot here. Are we done?

Yep! For now. So go make yourself a cuppa and pray there’s no more breaking news in the time you boil the kettle.

The deadline for submissions to the Senate Inquiry have been extended – they close on 17th May 2024.

I am not a lawyer. This is not legal advice and should not be relied on as such. This analysis of publicly available information relates to a Bill that could, within weeks, be amended. The information is current as at the 7^th of May 2024. Seek legal advice as to how it relates to your situation.