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National Disability Insurance Agency Chief Counsel Division
Standard Operating Procedure: Requesting an Independent Expert Clinician Report
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Document Control
Document No. NDIA-ART CM-SOP-045 Date October 2024 Status DRAFT Version 001 Document applicability National – Chief Counsel Division Owner Director, Continuous Improvement
Approval Status Log
Version 001 Reviewed by Assistant Director, Policy, Continuous Improvement Endorsed by Chief Counsel Procedures and Guides Working Group Approved by Director, Continuous Improvement Approval date
Revision History
Revision Date Sections Summary of Changes
1 All Original
Note: Document uncontrolled in hardcopy
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OFFICIAL For Internal Use Only Contents
- Introduction 3 1.1 Purpose 3 1.2 Scope 3 1.3 Definitions 3 1.4 Roles and Responsibilities 3
- Checklist 4
- Procedure 4 3.1 What is an Independent Expert Clinician Report (IECR)? 4 3.1.1 Why is an IECR required? 4 3.1.2 Who completes the IECR? 5 3.1.3 How is an IEC exam conducted? 5 3.2 Requirements for engaging an IEC 6 3.3 How to engage an IEC 6 3.3.1 Seeking approval to engage an IEC 6 3.3.2 Selecting a suitable IEC 7 3.3.3 Approval to obtain an IECR 7 3.3.4 Agreement with the IEC 7 3.3.5 Create the IEC Briefing Guide and Targeted Questions 7 3.3.6 Communicating with the IEC 8 3.4 IEC Report Requirements 8 3.4.1 When must the IECR be completed? 8 3.5 Managing IEC Performance 9
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- Introduction
1.1 Purpose This Standard Operating Procedure provides guidance around the process of obtaining an Independent Expert Clinician Report in a matter before the Administrative Review Tribunal (ART). This procedure also provides information around the expectations of Independent Expert Clinicians, and around the management of Independent Expert Clinician performance.
1.2 Scope This procedure applies nationally across the ART Case Management Branch and the Dispute Resolution and Litigation Branch (DR&L), and is to be used by: • Case Managers (CM); • Internal Legal Officers (ILOs); and • Principal Legal Officers (PLOs).
1.3 Definitions TABLE 1 – TABLE OF KEY DEFINITIONS
Term Definition
Independent An allied health professional, specialist, doctor, or Expert Clinician surgeon with suitable qualifications and expertise relevant (IEC) to a person’s disability, who is registered and qualified to practice in Australia, and who is engaged as an independent expert in a matter before the ART.
Independent A report which is prepared by an IEC to assist the parties Expert Clinician and the ART, following an independent exam conducted Report (IECR) by an IEC to evaluate a participant’s or prospective participant’s impairment(s) and disability support needs.
Lawyer with A Lawyer who is engaged to represent the Agency in a Carriage (LWC) matter before the ART.
1.4 Roles and Responsibilities The roles and responsibilities set out in the Standard Operating Procedure: Document Control apply also to this procedure.
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Topic Checklist
Pre-requisites An Agency position has been developed in a matter before the ART; and expert evidence in the form of an IECR is required to progress the matter towards resolution.
Actions Commented [AF1]: This section will outline the relevant actions set out in the SOP, once settled.
- Procedure
3.1 What is an Independent Expert Clinician Report (IECR)? An IECR is a report which is prepared by an Independent Expert Clinician (IEC) to assist the parties and the ART, following an independent exam conducted by an IEC to evaluate a participant’s or prospective participant’s impairment(s) and disability support needs. IECs are not directly employed by the Agency. IECRs offer objective, evidence-based, expert opinion evidence which seeks to clarify clinical or medical evidence regarding a participant’s or prospective participant’s circumstances, challenges, and individual support needs. At all times, IECs are duty bound to act with high ethical standards, and to comply with the AMA Ethical Guidelines on Independent Medical Assessments. 3.1.1 Why is an IECR required? It may become necessary to obtain an IECR where further information is required regarding the nature of a person’s impairment(s) or functional capacity, or to help in determining whether it would be reasonable and necessary for the NDIS to fund a particular support(s). The primary purpose of obtaining an IECR is to assist the Tribunal in reaching the correct or preferable decision. An IECR may also assist the Agency and the participant or prospective participant in resolving the matter by agreement. An IECR contributes to the effective, transparent, and fair review of NDIA planning and access decisions by the Tribunal, by offering independent, expert, clinical insight into the nature of the participant’s or prospective participant’s impairments, and individual support needs. Further information regarding the Agency’s approach to IECRs is set out in section 6 of the NDIA Independent Expert Clinician Framework.
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3.1.2 Who completes the IECR? An IECR is completed by an IEC with suitable qualifications and expertise relevant to a person’s disability or a person’s ability to perform specific tasks, following their independent exam to evaluate a participant’s or prospective participant’s impairment(s) and disability support needs. For example, an exam of a person’s ability to perform day-to-day tasks is known as a Functional Capacity Assessment (FCA), and is typically conducted by a suitably skilled Occupational Therapist.
Note: The IEC must not have been previously involved in the exam or treatment of the participant’s or prospective participant’s impairment(s), but may take into account information from the person’s treating practitioner or other exams that have been undertaken previously.
3.1.3 How is an IEC exam conducted? An IEC exam is conducted in one of the following three ways. The way in which the exam is conducted must be informed by discussions between the Agency and the participant or prospective participant, and subject to Tribunal oversight.
In-Person The IEC will meet with the participant or prospective participant to conduct an exam in-person. In-person exams will only be conducted with the participant’s or prospective participant’s consent. The Agency will work with the IEC and the participant or prospective participant to arrange a suitable time for the IEC to attend the participant’s or prospective participant’s place of residence or other preferred location, for the purpose of conducting the independent exam.
Virtual The ICE will meet with the participant or prospective participant virtually, to conduct an exam over the phone or through video conferencing. Virtual exams will only be conducted with the participant’s or prospective participant’s consent. Where the IEC is unable to attend the participant’s or prospective participant’s place of residence or other preferred location, or where it would be inappropriate to conduct the exam in- person, the Agency will work with the IEC and the participant or prospective participant to make suitable arrangements to conduct a virtual exam.
On the Papers The IEC will conduct an independent review of the evidence which has already been provided.
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An IEC will conduct an exam on the papers where it would not be possible or appropriate for the exam to be conducted in-person or virtually. IEC exams may be conducted without a participant’s or prospective participant’s consent, where necessary to assist the Tribunal in reaching the correct or preferable decision.
3.2 Requirements for engaging an IEC
Seeking SME input on the requirements for engaging MP Commented [AF2]: Who is responsible for seeking the
participant’s or prospective participant’s consent?
3.3 How to engage an IEC What else is required to be able to engage an IEC?
In their advice, litigation strategy, or report on a Tribunal case event, the LWC may Commented [AF3]: To be confirmed through SME
consultation
recommend that an IEC be engaged to prepare an IECR. The Technical Advice
and Practice Improvement Branch (TAPIB) may also recommend that an IEC be
engaged when providing internal specialist advice. However, Case Managers are
ultimately responsible for determining whether or not to engage an IEC, having
regard to legal advice as well as internal specialist advice provided by TAPIB.
3.3.1 Seeking approval to engage an IEC
CMs must seek approval from their Director (EL2) to engage an IEC to prepare
a routine or a non-routine IECR. CMs must ensure that their approval is
appropriately recorded in LEX. Information regarding the scope of routine and
non-routine IECRs is contained in the NDIA Independent Expert Clinician
Framework (section 11).
To engage an IEC for any purpose which falls outside of the scope of preparing
a routine or non-routine IECR – including where a routine or non-routine IECR
would not be appropriate, or where no suitable IEC on the IEC Panel is
available to prepare a routine or non-routine IECR – CMs must seek approval
from the Branch Manager, ART Case Management or the Deputy Chief
Counsel, Dispute Resolution and Litigation. CMs must ensure that approval is
appropriately recorded in LEX.
To create a request for approval in LEX, locate the matter and navigate to the
Reminders tab. Select Add on the right-hand side of the tab to create a
reminder. Complete as below, and then select Save.
Status: To Do
Due date:
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3.3.2 Selecting a suitable IEC
Once the CM has received the appropriate approval to engage an IEC, the CM
will work with the LWC and TAPIB to identify 2–3 suitable IECs from the
approved IEC Panel, with relevant experience and qualifications. Commented [AF5]: Panel procurement to commence
Q2, FY 24/25. Panel agreements are expected to be in
Note: In limited circumstances, it may become necessary to engage an IEC place Q3, FY 24/25.
under a standalone Purchase Order outside of the approved IEC
Panel, subject to Branch Manager or Deputy Chief Counsel approval.
The CM will present the 2–3 suitable ICEs to the participant or prospective
participant for their consideration and selection (where appropriate), for the
purpose of conducting an independent clinical exam.
3.3.3 Approval to obtain an IECR
Once an IEC has been selected to prepare an IECR, the CM must create an
Updated Position – Position Required file note in LEX, as below.
Date:
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for review by the CM and TAPIB – or will TAPIB prepare the request and questions, for review by CM and LWC? Once the CM and participant or prospective participant reach an agreement on a suitable MP to conduct an IME, the CM will instruct the LWC to draft a brief to the MP which sets out specific, targeted questions for their attention. Once drafted by the LWC, the CM will review the initial draft, and seek further input from TAPIB. TAPIB will provide advice and recommendations in relation to the brief, and any additional targeted questions which would be helpful to include. The CM must seek final clearance of the brief from their Line Manager, before organising the IME. 3.3.6 Communicating with the IEC Seeking SME input on communication pathways. Will the LWC or the CM Commented [AF6]: Per the Communication Policy lead communication with the IEC? Will the same communication (currently in draft), CMs lead participant and prospective engagement, while the LWC leads all legal engagement pathways apply where the LWC is an LSP, and an ILO? May need to also with the Tribunal, etc. consider administrative correspondence – e.g., in relation to rescheduling an exam to accommodate a participant or prospective participant. Additionally seeking SME input on additional expectations regarding the interface between the IEC and the NDIA, if needed in the SOP?
3.4 IEC Report Requirements Commented [AF7]: Seeking SME input on any additional requirements in relation to IEC reports IECs are expected to provide high-quality IECRs to support the Tribunal and the parties in reaching the correct or preferable decision. IECs must ensure consistency and completeness in their reporting of a participant’s or prospective participant’s impairments and functional capacity and in their recommendations, which may inform Tribunal and Agency decision-making. The Agency must ensure that copy of the IECR is provided to the participant or prospective participant, and to the Tribunal. 3.4.1 When must the IECR be completed? The Agency will work with the IEC to determine a reasonable timeframe in which to provide an IECR, and to maintain compliance with any Orders or Directions of the ART which relate to the provision of a completed IECR. IECRs can be provided at any point during the course of a matter as part of ongoing Dispute Resolution processes. At times, it may be necessary for IECRs to be made available for particular Tribunal case events (such as Case Conferences or Conciliation). Where a matter progresses to a substantive hearing, and an IEC was engaged to prepare an IECR during the course of the matter, it may also be necessary for the responsible IEC to attend the hearing, for the purpose of giving evidence. At all times, IECs are duty bound to act with high ethical standards, and to comply with the AMA Ethical Guidelines on Independent Medical Assessments. Specific requirements for IECRs are also outlined in the NDIA Independent
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Expert Clinician Framework, and in the ART Guideline on persons giving expert and opinion evidence.
3.5 Managing IEC Performance Commented [AF8]: Seeking input on what additional feedback mechanisms may be helpful to inform If a CM believes or suspects that an IEC has behaved in a poor, inappropriate, or continuous practice improvement - trend data, IEC survey methods, etc. unprofessional manner, the CM must raise their concerns with their Line Manager. Where the behaviour exhibited by the IEC could give rise to significant risk, CMs Commented [AF9]: Framework s 13-14 must, after discussion with their Line Manager, report misconduct to the NDIS Quality and Safeguards Commission (NQSC). Further information concerning Commented [AF10]: Will CMs will contact NQSC complaints about providers and workers is available on the NQSC website. directly, or should concerns be escalated by an EL2 to Provider Performance, for further escalation / reporting?
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