27 September 2021
It’s been a long time coming, but finally on 9th September 2021, the Government released the proposed changes to the NDIS Act for a short period of consultation. As always, this is not exactly a short read. The package released by the NDIA includes the Amendments Bill, two new sets of NDIS rules, two amended NDIS rules, and three updated NDIS rules, with each of those documents having an accompanying explanatory document as well. Needless to say, it’s a lot to go through, especially if you want to provide feedback before the 7th of October deadline.
Many within the disability community have expressed concern over the past 12-18 months regarding the proposed changes to the NDIS including Independent Assessments, changes to reasonable and necessary supports and new debt recovery powers. Thankfully, and largely due to this incredible community voicing their opinions, none of these controversial proposed changes have been included. What’s more, it seems that future changes to the NDIS assessments and funding model will be focused on co-design.
Some of the changes that reflect recommendations from the Tune Review include:
• Adding timeframes into the legislation and Rules, including timeframes around access, participant plans and internal reviews.
• Annual reporting by the Commonwealth Ombudsman to review the NDIA’s performance against the Participant Service Guarantee, as well as in relation to participant experience.
• Language clarification around the different types of ‘reviews’ which can be cause for confusion between participants and the NDIA. Plan reviews will change to plan ‘variation’ for less significant changes and plan ‘reassessments’ for more significant changes. The word ‘review’ will now be exclusively used for internal reviews and external reviews.
• Amending the Administrative Appeals Tribunal (AAT)’s jurisdiction when it comes to reviewing plans which have been varied or replaced by new plans over the course of the appeal.
• Improvements to the NDIS principles, including adding co-design with people with disability, and using more inclusive language, such as removing moderating language (e.g., ‘to the extent of their ability’) and amending ‘gender’ to include sex, general identity, sexual orientation, and intersex status.
• A more inclusive representation on the NDIA board to now include people with a disability.
On the one hand…
There are five significant changes that need to be considered in more detail by participants and advocates. They are:
1. Changes to the NDIA’s power to vary and reassess plans
2. Changes to the rules around how to become a participant
3. Changes to Plan Management
4. Changes to Payment of Supports
5. Reasons for decisions
Changes to the NDIA’s power to vary and reassess plans
This allows participant’s plans to be varied without a reassessment. On the one hand this is good news for participants who have plans that need non-significant amendments or changes to be made. This could include technical mistakes, changes to a participants’ goals or changes following an ATT decision. Essentially, this means that rather than receiving a new plan every time a small change is made, the plan will instead be updated.
On the other hand, this also allows plans to be varied by the CEO without a participant requesting the variation, and without consultation or consent from the participant, which is cause for concern if this is misused.
Changes to the rules around how to become a participant
There are new requirements to determine whether a person has a ‘permanent’ impairment or ‘substantially reduced functional capacity’ under the “Becoming a Participant Rules”. Again, there is positive and negative to this change.
The language used when referring to ‘permanent’ is particularly helpful for people who have psychosocial disabilities, especially those with episodic or fluctuating impairments.
However, rule 8 under Becoming a Participant Rules states that for a person to access the NDIS they must be undergoing or have undergone ‘appropriate treatment’ for the purposes of ‘managing’ their condition, and there has been no ‘substantial improvement’ in their functional capacity after a reasonable amount of time. Unfortunately, none of these terms have been defined and it seems that the definitions will be left to the CEO and delegate to decide what they mean and the outcome. Clarification on these terms is critical if the reform is to have a chance of being adopted.
Changes to Plan Management
The proposed rule change around Plan Management (and self-management) brings into effect a risk management process for participants who request to have their funding plan managed. This means that the CEO must be satisfied that management of the plan (either plan or self-management) does not create an ‘unreasonable risk’ to the participant. While this change reflects the Tune Review recommendations, there is concern around what this change truly means when it comes to ‘choice and control’.
As it stands, the way the NDIS structures the choosing between Agency, Plan or Self-Management is highly questionable. For a participant to be Plan or Self-Management they must request it, which means that with Agency management as the default setting, Participants must choose to ‘opt-out’ of it if they would like an alternative option. An opt-out approach of agency management does not meet the standards of choice and control, nor does it endorse the NDIA’s alleged positioning towards co-design. If the NDIA truly believes in a model of choice and control that is the result of community consultation and co-design, then they will realign this Rule to suit.
We would like to see that the NDIA switch to a ‘tick-box’ approach, with a planner providing an explanation of the different styles of management of funds, in turn truly giving Participants the option to choose Agency, Plan Management or Self-Management of their funds, unless it is reasonably deemed unsuitable for this to occur. This way, agency management will not be an opt-out approach, and participants will benefit from genuinely being in control of their funding and how it is managed. It is our belief that for the interest of Participants to be best served, that the majority of participants should be Plan Managed.
Changes to Payment of Supports
The proposed changes to the way that supports are paid by the NDIA are positive but could do with a little tweaking. The current proposal, targeted towards self-managed participants, offers a ‘tap and go’ system on a smartphone app with their registered service provider. This means that self-managed participants would no longer have to pay out of pocket and then seek reimbursement later. The downside to this is that there is no opt out option currently being proposed so that participants who want to pay for their own supports first, can, or an option for those who prefer to mix-and-match their mode of payment. A lot more clarification is needed in this area to fully understand the proposed change, how it could broadly work and how this would impact on Plan Managers ability to know what bills have been paid and how the participant is tracking actual to budget on their plan.
Reasons for decisions
This proposed change allows participants to request reasons for decisions that have been made by the NDIS, prior to any internal review application. Seems good? It is… kind of. Being given a reason for decisions that have been made about a participant is something that should be standard practice. Not something that has to be requested. This information should also be provided in a manner that is accessible for the individual.
Have Your Say – Provide Feedback on the proposed legislation
If you would like to share your opinion on the proposed legislation, you can participate in the consultation process by visiting the DSS Engage website. On this website, you can find a list of questions that the Government is particularly interested in answering, how to send your response, and easy-read versions of each section that break down the proposed changes in a more reader-friendly way.
If you would like to communicate with us directly on our draft response we are planning to submit, please be in contact and we would be happy to discuss this in more detail and better understand your perspective on the issues.
Feedback submissions close at midnight (EST) on 7 October 2021.