FOI 23/24-1370 DOCUMENT 3

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Complaint Handling and

Reportable Incidents

Arrangements

Operational Protocol

As agreed between the National Disability Insurance Agency and the NDIS Quality and Safeguards Commission

Date: 23 June 2023 (V2.1)

For internal staff use only – not for distribution

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Contents

Complaint Handling and Reportable Incidents Arrangements ……………………………………………………………… 1

Operational Protocol ……………………………………………………………………………………………………………………… 1

1. About the Operational Protocol ………………………………………………………………………………………………… 5

2. Purpose ………………………………………………………………………………………………………………………………… 5

3. Relevant Areas ………………………………………………………………………………………………………………………. 5

4. Roles and Responsibilities ………………………………………………………………………………………………….. 6

5. Agreed Principles …………………………………………………………………………………………………………………… 7

   General ………………………………………………………………………………………………………………………………. 7

   Legal …………………………………………………………………………………………………………………………………….. 7

   Complaint Assessment and Referral Process …………………………………………………………………………….. 7

   Shared complaints process (NDIA and NDIS Commission) ……………………………………………………….. 8

   Participant critical incident/ Reportable incident assessment and information sharing process ………….. 9

6. Governance …………………………………………………………………………………………………………………………. 11

   Regular Meeting Schedule …………………………………………………………………………………………………….. 11

Change Process …………………………………………………………………………………………………………………… 11

Escalation Process ................................................................................................................................ 11

Key Contacts ……………………………………………………………………………………………………………………….. 12

7. Appendix - Related documents ……………………………………………………………………………………………. 13

   Other Operational Protocols …………………………………………………………………………………………………… 13

   Email transfer templates ………………………………………………………………………………………………………… 13

   Complaint Referral Form ……………………………………………………………………………………………………….. 14

8. Escalation Prioritisation Matrix ……………………………………………………………………………………………. 18

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1. About the Operational Protocol

The National Disability Insurance Agency (NDIA) and the NDIS Quality and Safeguards Commission (NDIS Commission) agreed a Statement of Intent in June 2018 to work collaboratively in supporting each other to perform individual and shared responsibilities under the National Disability Insurance Scheme Act 2013 (NDIS Act).

The NDIA and NDIS Commission each have authority under sections 60, 66, 67A and 67E of the NDIS Act to disclose protected NDIA or protected Commission information to each other:

• For the purpose of the NDI Act (this includes purposes that are relevant to achieve the objects, principles and functions of each agency under the Act);
• For relevant research about the NDIS or for policy development or for actuarial analysis of NDIS matters (NDIA only) where the CEO of the NDIA or Commissioner of the NDIS Commission is satisfied it is reasonably necessary to disclose that information for those purposes
• With the express or implied consent of the person to whom the information relates. Where practicable, express consent will be sought rather than relying on implied consent;
• If either party reasonably believes that the disclosure of the information is necessary to prevent or lessen a serious threat to an individual’s life, health or safety;
• Where the CEO of the NDIA or Commissioner of the NDIS Commission is satisfied on reasonable grounds that it is in the public interest to disclose the information;
• For the purpose of the NDIA or NDIS Commission as set out in s66 (1)(b)(i) and s67E(1)(b)(i) of the Act.

This Operational Protocol is to be read in conjunction with the Information Statement of Intent signed by the NDIA and NDIS Commission in June 2018. This Operational Protocol is agreed between the NDIA and the NDIS Commission.

The NDIA and NDIS Commission will jointly monitor the implementation of this Operational Protocol and review its operation as required.

These arrangements will be in place from 18 February 2021 noting that the NDIS Commission operates in all states and territories.

2. Purpose

This protocol sets out the agreed roles and responsibilities of the NDIA and NDIS Commission in regard to the effective management and resolution of complaints received by either agency, and participant critical incidents (PCIs) reported to the NDIA’s Participant Incident team and Reportable Incidents (RIs) notified to the NDIS Commission.

3. Relevant Areas

The protocol covers complaints, feedback, PCIs, RIs and enquiries relating to participant wellbeing which may need to be referred (in whole or part) through established referral processes. Workflow and operational processes for referral, resolution and closure are included and will be updated, as required.

Should there be any other types of enquiries that arise in the everyday work of either the NDIA or the NDIS Commission and there is no clear pathway described in this or any other protocol between the two

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agencies, the Key Contacts listed in this protocol can be used to work on how these matters can best be resolved.

4. Roles and Responsibilities

Complaints

The NDIA and NDIS Commission have a responsibility in complaint resolution for determining the agency best placed to respond to complaints. Both the NDIA and the NDIS Commission have complaint handling functions and have appointed leads to operationalise this protocol.

The NDIS Commission can accept and handle complaints about an issue arising out of, or in connection with the provision of supports or services by an ‘NDIS provider’.

“NDIS providers” includes persons and bodies funded by the NDIA under the NDIS Act to provide services to people with disability, such as Early Childhood (EC) and Local Area Coordination (LAC) services provided by NDIA Partners in the Community; NDIS Community Connector Program providers, Specialist Support Coordination Services, Exceptionally Complex Support Needs Program providers and Independent Assessors. The NDIA monitors the performance of these bodies under their funding contracts. The sharing of data on complaints received by the NDIS Commission about such bodies is dealt with under the Data Access and Transfer Protocol. A complaint can be made about services or supports provided by any NDIS provider, whether or not the provider is registered with the NDIS Commission.

Complaints about providers may relate to the conduct of workers employed or engaged by the provider (including volunteers.)

The NDIA will continue to:

• Deliver the NDIS—providing individualised plans and support to people with disability, and coordinating service bookings, payments and access to plans for providers.
• Handle complaints about the NDIA and participant plans.
• Handle allegations about alleged fraud and payment integrity as agreed against the NDIS (NDIS Commission template - Referral to NDIA fraud and compliance). It is important to note that whilst the NDIA will handle the allegation of fraud (as per the Regulatory Interface Protocol), the NDIS Commission will continue to handle a complaint about the provider where appropriate, as per below the ‘Shared Complaints Process’ in Section 5 Agreed Principles.

Reportable incidents and participant critical incidents

The NDIS Commission has a specific responsibility under the NDIS Act to respond appropriately to notifications by registered providers of ‘reportable incidents’. Only registered providers are required to report such incidents to the NDIS Commission. The NDIS Commission may disclose incident information to the NDIA for the purposes of the Act in accord with this protocol.

Where the NDIA and its partners receive notice of a PCI the NDIA will follow this protocol in determining when and how incident information is to be disclosed to the NDIS Commission. The NDIA may consider that the incident should be reported to the NDIS Commission as a ‘notifiable incident’ as it fits the criteria of a ‘reportable incident’ and involves a registered provider, or that information about the incident should otherwise be shared with the NDIS Commission for consideration of possible action under the Act.

Matters relating to agency staff

The NDIS Commission will manage incidents and complaints in relation to its staff, processes and decisions.

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The NDIA will manage incidents and complaints in relation to NDIA staff, NDIA processes and NDIS decisions.

5. Agreed Principles

General

• Where there is an extreme or high risk to a participant this will be managed via the escalation prioritisation matrix at section 7.4 of this protocol, then escalated via the key contacts listed in section 6 and information shared as appropriate.
• Participants and people making complaints about the NDIS will be supported by the NDIA and the NDIS Commission through a ‘no wrong door’ approach where it appears an issue raised in a complaint is better addressed by the other agency.
• Some complaints might include issues to be addressed or actions to be undertaken by both agencies in a coordinated way through regular communication and updates.
• General feedback and enquiries may be handled by another body with the consent of affected parties and where the body has authority or jurisdiction to manage the response.

Legal

• It is best practice to seek the express consent of the person making a complaint and/or affected parties prior to sharing information about the complaint.
• Information disclosure powers will only be used as required, and by officers with the appropriate delegation or authority, noting the NDIS Commission and the NDIA have authority to disclose information for the purposes summarised at item 1.

Complaint Assessment and Referral Process

General

• The initial assessment of a complaint should determine if there is an immediate risk to a participant or if the complaint includes allegations of a criminal nature which should be referred to police, or matters which should be referred to child protection or other agencies best placed to respond to a matter.
• The response and any referrals will be prioritised according to the risk to a NDIS participant and whether it is more appropriate that another agency deals with the complaint and responds to that risk.
• When either agency identifies the complaint needs to be referred, the complainant should be given the option of having the complaint referred by that agency or being given the relevant contact information and details so they can contact the other agency themselves.
• The NDIS Commission and NDIA will maintain a list of contact officers as per section 6 of this protocol. The NDIS Commission and NDIA will ensure that any referrals addressed to individual contact officers will also be emailed to appropriate mailboxes to maintain visibility of those referrals.

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Referrals from NDIS Commission to the NDIA

• Non-priority cases, where the risk is assessed as Low or Medium according to the escalation prioritisation matrix in section 7.4, will be referred to the NDIA via the s47E(d) - certain operations of agencies mailbox.
• Priority cases, where the risk is assessed as Extreme or High according to the escalation prioritisation matrix, will be referred within the time frames detailed in the escalation prioritisation matrix in section 7.4 and can be referred by phone to the NDIA National Complaints Team, (with the call details confirmed in follow-up email via appropriate mailbox).

Referrals from the NDIA to the NDIS Commission

• The NDIA will refer non-priority cases to the NDIS Commission via s47E(d) - certain operations of agencies
• Priority issues can be referred by phone to the relevant key contact at the NDIS Commission and followed up by email. If this contact is unsuccessful, the referring officer will call the NDIS Commission’s 1800 035 544 and ask to speak to the relevant Assistant Director/Director, Complaints.

Shared complaints process (NDIA and NDIS Commission)

• Complaints in which both agencies have a role are referred to in this document as ‘shared complaints’. The steps to be taken by each agency to manage shared complaints are summarised in the Workflow diagram: Complaints Scenario 3 at the end of this document.
• Initial consultation in relation to shared complaints will occur within 24 hours (or as soon as practical to accommodate weekends/holidays).
• Initial consultation will determine which agency will lead the coordination and response on behalf of both agencies. Where possible, the issues raised in a complaint may be separated with each agency leading and responding to their respective matters.
• When separating matters, the referring agency should, where possible, provide a high level overview of other matters raised, allowing the other agency to provide an assurance to complainants about who is handling the respective matters.

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Participant critical incident/ Reportable incident assessment and information

sharing process

• Participant critical incident is a term used by the NDIA to refer to incidents involving NDIS participants that come to the attention of NDIA staff and NDIA partners that require investigation to ensure the safety of a NDIS participant. These include:
  • unexplained death of a National Disability Insurance Scheme (NDIS) participant that occurs in connection with the provision of NDIS supports or services
  • serious injury of an NDIS participant
  • abuse or neglect of an NDIS participant
  • unlawful sexual or physical contact with, or assault of, an NDIS participant
  • sexual misconduct committed against, or in the presence of, an NDIS participant, including grooming of the NDIS participant for sexual activity
  • unauthorised use of a restrictive practice in relation to an NDIS participant
  • a NDIS participant threatening or attempting self-harm.
  • PCIs often include incidents involving a NDIS provider, both un-registered and registered.
• When NDIA Service Delivery teams, including Partners, receive a notification of a PCI that meets the threshold of a reportable incident, they will refer the incident in the first instance to s47E(d) - certain operations of agencies This will occur regardless of the registration status of the provider.
• ‘Reportable incidents’ (RIs) are defined types of incidents that occur in connection with the provision of supports or services by a registered provider.
• Only registered providers are required to notify the NDIS Commission of such ‘reportable incidents’. Reportable incidents under the NDIS Act are overseen by the NDIS Commission and managed by providers. In some cases the NDIS Commission may conduct its own investigation or consider the need for other action.
• The NDIA and the NDIS Commission may liaise on and discuss PCIs that involve an unregistered provider, to explore best options for dealing with and responding to such information within their roles and responsibilities.
• Where the Participant Incident team considers the incident meets the scope of the NDIS Quality and Safeguards Commission’s definition of a reportable incident, it will forward the incident as a notifiable incident to the NDIS Commission according to the jurisdiction where the incident is alleged to have occurred:
  • s47E(d) - certain operations of agencies
  • s47E(d) - certain operations of agencies
  • s47E(d) - certain operations of agencies
  • s47E(d) - certain operations of agencies
  • s47E(d) - certain operations of agencies
  • s47E(d) - certain operations of agencies
  • s47E(d) - certain operations of agencies
  • s47E(d) - certain operations of agencies

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• The referral will allow the NDIS Commission to seek a notification from the Registered NDIS Provider where appropriate.
• When the NDIS Commission receives a notifiable incident from the NDIA that does not meet the definition of reportable incident, the NDIS Commission will inform the NDIA via email to s47E(d) - certain operations of agencies

Participant critical incidents not involving reportable incidents of registered providers

• Where the Participant Incident team considers the PCI may be relevant to the NDIS Commission’s functions, a member of the team will liaise with the relevant NDIS Commission contact as listed in section 6 to discuss the possible referral to or sharing of information about the incident with the NDIS Commission including the form it should take and the email address to which it is to be sent.

  • Where the agencies agree the matter is to be referred as a complaint to the NDIS Commission, the referring staff member will be the complainant for the purposes of the NDIS (Complaints Management and Resolution) Rules 2018.

  The NDIS Commission will disclose incident information to the NDIA under this protocol where:

  • The incident information highlights concerns for an NDIS participant’s wellbeing or is relevant to the NDIA’s administration and review of participant plans, access and funding decisions.
  • The incident involves the death of a participant and the information raises questions relevant to the NDIA’s administration or review of the participant plans, access and funding decisions, or the conduct of any NDIS provider contracted by the NDIA to provide services to people with disability, referred to in Section 3 of this protocol.
  • This information will be provided by email to s47E(d) - certain operations of agencies

Disclosure of information necessary to prevent or lessen a serious threat

• Disclosures made by the NDIS Commission of information reasonably believed to be necessary to prevent or lessen a serious threat to an individual’s life, health or safety will be emailed to s47E(d) - certain operations of agencies using the subject line “Concern regarding safety of a person with a disability.”
• Such disclosures will occur AFTER all appropriate action is taken within the control of the NDIS Commission to address any immediate safety concerns for any person, such as calling emergency services.
• The NDIA will ensure the information is shared with the relevant National Delivery or Partner Performance staff to give consideration to any actions that should be taken to ensure participant safety. This may include, but is not limited to, direct contact with the participant, follow up with a service provider that is currently in regular contact with the participant, or contact with the support co-ordinator, guardian or nominee of the participant to ensure their wellbeing. Any contacts will be generic in nature if the consent of the participant is not noted in the NDIS Commission referral.

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• The NDIA will acknowledge the receipt of information and advise the NDIS Commission that the information has been referred to the appropriate area for action/information, or otherwise clarify if the person is not known to the NDIA within 5 working days.
• Disclosures made by the NDIA of information reasonably believed to be necessary to prevent or lessen a serious threat to an individual’s life, health or safety will be made by phone to the relevant key contact at the NDIS Commission and followed up by email. If unsuccessful, call the 1800 035 544 and ask to speak to the relevant Assistant Director/Director, Complaints.
• Such disclosures will occur after all appropriate action is taken within the control of the NDIA to address any immediate safety concerns for any person, such as calling emergency services

6. Governance

Regular Meeting Schedule

• The NDIA and NDIS Commission will meet at agreed intervals to review these Operational Protocols. The SES and EL2s for each agency will meet at regular intervals to discuss operations relating to the application of this protocol and will try to resolve any operational issues arising under this protocol.

Change Process

• Minor changes to the Operational Protocols are encouraged and shall be decided upon by joint agreement between all parties. The document should be updated to reflect the changes and provide an ongoing record of agreed protocols.

Escalation Process

• Issues arising from the operationalisation of these protocols will be raised at the EL2 level. If the issue cannot be resolved, it will be escalated to SES level at both the NDIA and the NDIS Commission.

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Key Contacts

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7. Appendix - Related documents

Other Operational Protocols

• NDIS Participants at risk
• Data Access and Transfer
• Market Stewardship Oversight
• Regulatory interface – registration, compliance and fraud
• Complex Support

Email transfer templates

• This email template is to be used to transfer information in both directions between the NDIA and the NDIS Commission.

Email subject: NDIA/ NDIS Commission complaint transfer – [Complainant name]

Dear NDIA/NDIS Commission

We have received a complaint from [Complainant’s name] [Participant number or Address or Date of Birth].

[Insert complaint –dot point/initial approach screen/paragraph format]

I am writing to bring this matter to your attention as it seems that it may be appropriately addressed through your usual complaint handling processes. [C’s name] has agreed to the transfer of this complaint and has been informed that you will contact them by [close of business in 5 working days].

(for referral to the NDIS Commission) the issues raised relate to an NDIS provider, the quality of service provision or the conduct of a worker.

Note: multiple correspondence attachments should not be included.

[C’s name] contact details are:

Phone: [insert]

Email: [insert]

Address: [insert]

Please contact me if you have any questions about this transfer.

Email subject: NDIA/ NDIS Commission shared complaint– [Complainant name]

Dear NDIA/NDIS Commission

We have received a complaint from [Complainant’s name] [Participant number or Address or Date of Birth].

[Insert complaint –dot point/initial approach screen/paragraph format]

I am writing to bring this matter to your attention as it seems it may be appropriately addressed by the NDIA and the Commission. I would like to work with you to respond to the matters raised. [C’s name] has agreed to the NDIA and NDIS Commission liaising to respond to this complaint and understand they will be contacted by [close of business in 5 working days].

[C’s name] contact details are:

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Phone: [insert]

Email: [insert]

Address: [insert]

Please contact me if you have any questions about this transfer.

Complaint Referral Form

This form is for both complaints transfers and shared complaints

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For the NDIA, please email the completed form to:

• s47E(d) - certain operations of agencies

For the NDIS Commission, please email s47E(d) - certain operations of agencies

Workflows for complaint handling

When transferring a complaint the following workflows should be followed

• Scenario 1 NDIA receives complaint
• Scenario 2 NDIS Commission receives complaint
• Scenario 3 Shared complaint

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Complaints Scenario #1 – NDIA receive complaint that should have gone to NDIS Commission

(Flowchart page detailing complaint scenario 1 between Complainant, NDIA, and NDIS Commission)

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Complaints Scenario #2 – NDIS Commission receive complaint that should have gone to NDIA

(Flowchart page detailing complaint scenario 2 between Complainant, NDIS Commission, and NDIA)

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S47E(d) - certain operations of agencies