Submission to
NDIS Act (Bill No.2) consultation – Quality and Safeguarding Measures
Submitted via email to consultation@ndiscommission.gov.au
18 December 2024
The Australian Music Therapy Association (AMTA) welcomes the opportunity to provide our response to the NDIS Act (Bill No.2) – Quality and Safeguarding Measures consultation.
AMTA has long been engaged in consultations about services and supports for NDIS participants, including the NDIS Amendment ‘Getting the NDIS Back on Track’ Bill No.1, NDIS Provider and Worker Registration Taskforce, Consultation on Draft Lists of NDIS Supports, and annual NDIS pricing reviews. We welcome the opportunity to be involved in this consultation process and hope that any recommendations for change will be proposed and consulted on before they are presented as final for implementation.
AMTA is the peak body for music therapy in Australia; representing registered music therapists (RMTs) and advocating for access to music therapy. Our mission is to enable, advance and advocate for excellence in music therapy. AMTA regulates the field of music therapy by registering music therapists, setting music therapy competency standards, scope of practice, continuing professional development, provisional year and recency of practice programs, accrediting music therapy courses, requiring mandatory declarations and criminal history checks, and upholding professional standards and ethics.
As a member of Allied Health Professions Australia (AHPA) and the National Alliance for Self-Regulating Health Professions (NASRHP), AMTA ensures that its registered music therapists adhere to stringent and mandated regulatory requirements that have been modelled on AHPRA regulatory
standards¹. This is intended to protect and reassure participants that they are receiving safe and ethical services from highly qualified and professional music therapy practitioners.
There are currently over 900 music therapists registered with AMTA working across a variety of sectors including health, disability, aged care, education and mental health. In the NDIS, registered music therapists (RMTs) design and deliver individualised music therapy programs that are evidence-based, to produce functional outcomes relating to mood/emotional regulation, cognition, behaviour, communication, sensory regulation and mobility; and increase independence, socialisation, community and economic participation.
Penalty framework and statutory requirements — to ensure a fit-for-purpose penalties and offences framework to deter people from doing the wrong thing
1. Do you support the two new proposed statutory duties for NDIS providers and their key personnel?
AMTA supports compliance with quality and safety measures to ensure that NDIS participants receive safe, high-quality, individualised support from appropriately qualified providers.
We recommend that any changes to regulatory requirements are proportionate to the size of the entity responsible. It is reasonable that larger organisations and key personnel of large NDIS providers that are incorporated be expected to exercise due diligence in complying with their responsibilities as an NDIS provider and receive commensurate penalties for failures and offences.
However, AMTA does not support the application of a statutory duty for non-incorporated entities e.g. for smaller providers including those operated by a sole director, or as a sole trader. Data from AMTA’s 2024 Workforce Survey shows that 78% of RMTs who provide NDIS supports are sole practitioners. These providers already have total oversight over business operations and thus the requirement to exercise due diligence should not apply. We believe AMTA’s regulatory and registration requirements (as outlined above) and as required by the NDIS are sufficient to ensure quality, safe and ethical practice. Should sole traders not be excluded from the new proposed statutory duties, we recommend that a varying degree of penalty be imposed, proportionate to the size of the entity responsible, with individual penalties significantly less than those imposed on key personnel or officers of corporations.
2. Do you think the proposed new statutory duties for NDIS providers and their key personnel should be more or less expansive, or revised in other ways?
AMTA understood (from the NDIS review recommendations published in December 2023) that the NDIS Quality and Safeguards Commission would transition to a National Disability Quality and
1 Currently, the Australian Health Practitioner Regulation Agency (AHPRA) only regulates professions that are considered ‘high risk’. As music therapy is not deemed ‘high risk’ (and therefore not eligible to be regulated by AHPRA), AMTA is a member of NASRHP, which supports self-regulated professions to uphold equivalent standards of practice to those regulated by AHPRA.
Safeguards Commission in the next five years. Therefore, we anticipate these proposed changes are a step towards implementing that recommendation, and thus should be made with this in mind.
As such, we believe the terms “service providers” and “key personnel” used in the proposed new statutory duties should extend to include personnel of all government agencies/facilities/private businesses/organisations/sectors administering services to people with disabilities such as, but not limited to, the NDIA, schools, healthcare, justice and the Disability Quality and Safeguards Commission itself, such that a minimum standard of quality and safety in all services accessed by people with a disability becomes inherent to all sectors across Australia. This is currently not the case - certainly not in practice.
3. Do you support the proposed new and increased penalties and offences framework?
AMTA supports compliance with quality and safety measures to ensure that NDIS participants receive safe, high-quality, individualised support from appropriately qualified providers.
To register as music therapists with AMTA, RMTs must complete accredited tertiary-level qualifications (currently AQF9 level) and maintain strict compliance with AMTA’s code of ethics and professional standards (including continuous professional development, recency of practice, mandatory declarations, scope of practice, language proficiency, and provisional year requirements etc), with existing structures for consumer complaints or concerns and professional investigation.
We hope that the proposed changes to the penalty framework will reduce unregistered and unqualified providers falsely claiming therapeutic supports, including music therapy. AMTA receives notifications of non-qualified individuals claiming to be music therapists working with NDIS participants from time to time. Often, these are passionate musicians, music teachers, and other unqualified providers and health practitioners, who are unfamiliar with the requirement for music therapists to be qualified, regulated and registered with AMTA. AMTA manages these notifications through the Professional Issues Officer who follows AMTA procedures. One component of these procedures is contact with the NDIS Commission. While notifications made to AMTA are pursued in this way, AMTA is unable to identify and regulate unqualified providers who make fraudulent claims in the NDIS.
We suggest that as a first step, the NDIS Commission implement processes which enable greater oversight - ensuring NDIS funds for music therapy are used only where the provider is a registered music therapist (RMT) with AMTA. Every registered music therapist (RMT) receives a unique registration number from AMTA which identifies them as appropriately qualified and registered with AMTA. Following that, we support the imposition of penalties by the NDIS Commission on persons providing supports without registration.
Any penalties imposed on providers should be fair and proportionate to the breach, the level of responsibility, the size of the entity responsible, and the systemic nature of the issue. They should also be considered and administered on a case-by-case basis.
4. Do you think the proposed new and increased penalties and offences framework should be revised in any way?
The NDIS Commission should provide appropriate guidance and support to ensure that providers understand their duties and penalty offences and provide accessible guidance on how to comply with these requirements.
The Legislation should include adequate transition time of at least 12 months after passage before offence provision takes effect to enable providers to adjust to new arrangements.
AMTA also recommends that the proposed changes to the penalty framework should protect against accidental or non-deliberate offences, take into account matters that are outside of providers’ control, and ensure providers are not penalised where they have a reasonable excuse for not meeting requirements.
5. Do you support the proposed anti-promotion orders powers?
As a member of NASRHP (National Alliance for Self Regulating Health Professions), AMTA registered music therapists (RMTs) must comply with strict regulatory requirements which place restrictions on advertising music therapy in certain circumstances, including client testimonials. It is important that the NDIS Commission is aware of these requirements and reduces regulatory duplication when implementing proposed changes regarding the promotion of services to NDIS participants.
AMTA supports the ability of the NDIS Commission to restrict a person from advertising or marketing NDIS services or supports where the promotion undermines the integrity and principles of the NDIS.
As noted above, AMTA occasionally receives notification of non-qualified individuals claiming to be music therapists working with NDIS participants. Often, these are passionate musicians, music teachers, and other unqualified providers or health practitioners, who are unfamiliar with the requirement for music therapists to be qualified, regulated by, and registered with AMTA. We support the NDIS Commission’s ability to regulate the advertisement of ‘music therapy’ to NDIS participants and to take action where this service is not provided by a qualified, registered music therapist with AMTA. We believe this to be an important step in reducing risk to NDIS participants who may engage services from providers who are not appropriately qualified.
AMTA welcomes the opportunity to work with the NDIS Commission to ensure an advanced understanding of the training, qualifications, professional standards, and scope of practice of registered music therapists working in the NDIS, to ensure it can understand and act to address what constitutes false or misleading advertising of music therapy services.
6. Do you think the proposed anti-promotion orders powers should be revised in any way?
No further comment.
7. Do you have any concerns about the proposal to enable evidentiary certificates signed by the NDIS Commissioner to be prima facie evidence of matters specified in the certificate? (If so, what are your concerns?)
AMTA supports efforts to minimise unnecessary workflow issues and maximise the time of NDIS Commission officers. However, we feel that the wording in this measure regarding ‘generally uncontroversial matters’ is unclear. We recommend that a clear list of what is considered ‘formal, technical and non-contentious evidence’ be provided before we can comment on this matter.
Safeguarding — to ensure unsuitable persons can be excluded from the NDIS by adding categories of people who a banning order can be imposed against
8. Do you support the proposed expansion of categories of people against whom a banning order may be imposed; i.e. beyond NDIS providers and workers, to include NDIS auditors and consultants?
AMTA supports the expansion of scope to enable the NDIS Commission to take action to ban services that may impact the safety and quality of supports provided to NDIS participants. AMTA recommends that the scope of this power also captures providers of NDIS training for both NDIS providers and workers. AMTA has received reports of training providers offering to upskill workers to enable them to provide NDIS services; for example, issuing certificates in music therapy that do not meet AMTA’s regulatory and professional standards. This offers workers false impressions that they can complete training that is not adequate to meet this unique, highly specialised and regulated area of practice.
9. Are there additional categories of people involved in the NDIS that you think the NDIS Commission should be able to impose bans against?
No further comment.
Information gathering - strengthening the NDIS Commission’s powers to obtain relevant information from NDIS providers and other persons within appropriate timeframes
10. Do you have any concerns about the proposed measures to strengthen the NDIS Commission’s powers to obtain relevant information from NDIS providers? (If so, what are your concerns?)
AMTA suggests the following adaptations to these proposed measures to ensure that they are workable and proportionate for providers:
Measure 8 - Shorter timeframe for the production of information or documents - AMTA recommends that this requirement enables delivery of NDIS Commission notices/correspondence via email as well as via post to enable a provider to meet urgent requirements. AMTA notes that under Section 57 of the NDIS Act, there is a caveat where the person has a reasonable excuse for not meeting this requirement, which should be maintained.
Measure 9 - Requirement that information be held in Australia - Since this requirement will result in a need for some providers to change client management systems and cloud-based servers, we recommend an adequate transition time of at least 2 years, to give providers time to source Australian-based servers and make appropriate business changes without undue additional cost.
About music therapy
Music therapy provides essential, life-changing supports for people with disability, children with developmental delay or concerns, their families and support people. Music therapy is an evidence-based practice and self-regulating allied health profession (in accordance with NASRHP standards) that supports Australians of all ages and abilities to improve their lives and achieve therapeutic goals.
Music therapy’s current graduates are Master-level qualified and nationally certified as Registered Music Therapists (RMTs). RMTs have unique knowledge, understanding and skills in how music impacts complex neurological structures and behaviours, and evidence-based, therapeutic use of music. Over 900 RMTs are registered with the Australian Music Therapy Association (AMTA).
AMTA is a member organisation of Allied Health Professions Australia (AHPA) and the National Alliance for Self-Regulating Health Professions (NASRHP). Professional self-regulation ensures RMTs are appropriately qualified, skilled, and meet strict national regulatory requirements.
RMTs have specialist expertise in the therapeutic use of music to impact the brain, mind and body. RMTs use their professional qualifications, knowledge and skills to:
- assess a person’s health and wellbeing
- devise therapeutic interventions and programs to preserve, restore or improve physical, social or psychological well-being, functional capacity and quality of life
- facilitate music-based interventions to positively impact brain function, neuroplasticity, physical, sensory regulation, social communication, cognition emotional and behavioural regulation and community participation
- deliver treatment and support to achieve functional outcomes and positive experiences.
RMTs work in a range of settings including home, disability, aged care, mental health, acute hospital care, neurorehabilitation, palliative care, justice, out-of-home care and community well-being services. RMTs work independently, and collaboratively with individuals, carers, family members, support workers and other health professionals to develop and evaluate goals to achieve better health, well-being, functional and participation outcomes.
Contact:
Bridgit Hogan
Chief Executive Officer
Australian Music Therapy Association