Queensland Government submission

Queensland Government submission

Joint Standing Committee on the NDIS – Inquiry into independent assessments under the NDIS

6 April 2021

Contents

Executive summary ……………………………………………………………………………………………… 5

The assessment process and tools ……………………………………………………………………….. 6

Planning ……………………………………………………………………………………………………………. 7

Market and workforce issues ………………………………………………………………………………… 8

Impacts for people with disability …………………………………………………………………………… 9

Impacts for mainstream services …………………………………………………………………………. 10

Conclusion ………………………………………………………………………………………………………. 11

Term of Reference: (a) The development, modelling, reasons and justifications for the introduction of independent assessments into the NDIS ………………………………………. 12

Limitations of the pilots as an evidence base for mandatory independent assessments .. 12

The need for safeguards to be embedded …………………………………………………………….. 13

Recommendations: ………………………………………………………………………………………… 15

Term of Reference: (b) The impact of similar policies in other jurisdictions and in the provision of other government services ………………………………………………………………. 15

Recommendations: ………………………………………………………………………………………… 16

Term of Reference: (c) The human and financial resources needed to effectively implement independent assessments ………………………………………………………………….. 16

Recommendations: ………………………………………………………………………………………… 17

Term of Reference: (d) The independence, qualifications, training, expertise and quality assurance of assessors ……………………………………………………………………………………… 17

Market and workforce issues ………………………………………………………………………………. 17

Cultural competence and the communication needs of participants …………………………… 18

Professional backgrounds of assessors………………………………………………………………… 19

Training and expertise ……………………………………………………………………………………….. 19

Transparent monitoring and reporting …………………………………………………………………… 20

Recommendations: ………………………………………………………………………………………… 20

Term of Reference (e): The appropriateness of the assessment tools selected for use in independent assessments to determine plan funding ……………………………………….. 21

Validity for different disability types and cultural groups …………………………………………… 21

A consistent approach to additional information requirements is needed ……………………. 22

Transparency in the assessment process ……………………………………………………………… 22

Recommendations: ………………………………………………………………………………………… 22

Term of Reference (f): The implications of independent assessments for access to and edibility for the NDIS …………………………………………………………………………………………. 23

Access request lapsing if assessment not completed in 90 days ………………………………. 24

Independent assessments for people with disability in hospital ………………………………… 24

Pre-access support……………………………………………………………………………………………. 25

Information provided by health professionals ………………………………………………………..– 25

Recommendations: ………………………………………………………………………………………… 26

Term of Reference (g): The implications of independent assessments for NDIS planning, including decisions related to funding reasonable and necessary supports …………………………………………………………………………………………………………………………. 27

Determining the amount of funding in the budget …………………………………………………… 27

Linkage between individual goals and the personalised budget ………………………………… 27

Risks of independent assessments reducing funding in personalised budgets ……………. 28

Impacts on plan reviews …………………………………………………………………………………….. 29

Recommendations: ………………………………………………………………………………………… 29

Term of Reference: (h) The circumstances in which a person may not be required to complete an independent assessment …………………………………………………………………. 30

Recommendations: ………………………………………………………………………………………… 32

Term of Reference: (i) Opportunities to review or challenge the outcomes of independent assessments ………………………………………………………………………………….. 33

Recommendations: ………………………………………………………………………………………… 33

Term of Reference: (j) The appropriateness of independent assessments for particular cohorts of people with disability, including Aboriginal and Torres Strait Islander peoples, people from regional, rural and remote areas, and people from culturally and linguistically diverse backgrounds ………………………………………………………………………. 34

Aboriginal and Torres Strait Islander peoples ………………………………………………………… 34

Recommendations: ………………………………………………………………………………………… 35

People from culturally and linguistically diverse backgrounds …………………………………… 35

Recommendations …………………………………………………………………………………………. 35

People from regional, rural and remote areas ………………………………………………………… 36

Recommendations: ………………………………………………………………………………………… 36

School-leavers with disability ………………………………………………………………………––––– 36

Recommendations: ………………………………………………………………………………………… 36

People in custody ……………………………………………………………………………………………… 36

Recommendations: ………………………………………………………………………………………… 37

Children and young people ………………………………………………………………………———–– 37

Recommendations: ………………………………………………………………………………………… 38

Child protection and youth justice cohorts ………………………………………………………..—— 38

Recommendations: ………………………………………………………………………………………… 39

People experiencing domestic and family violence ………………………………………….——— 40

Recommendations: ………………………………………………………………………………………… 40

Term of Reference: (k) The appropriateness of independent assessments for people with particular disability types, including psychosocial disability ………………………….. 41

People with psychosocial disability ………………………………………………………..–––––––– 41

Recommendations: ………………………………………………………………………………………… 45

Term of Reference: (l) Any other related matters ………………………………………….––––– 46

Roles and responsibilities – interface and demand issues for mainstream services …….. 46

Recommendations: ………………………………………………………………………………………… 47

Executive summary

The Commonwealth is proposing the introduction of mandatory functional capacity assessments, conducted by assessors independent of the National Disability Insurance Agency (NDIA), to access the National Disability Insurance Scheme (NDIS) and have an NDIS plan developed or reviewed. This will replace the current approach, where the NDIA makes access and planning decisions based on evidence provided by people with disability about the impact of their disability from a variety of health professionals, including doctors and specialists of their choice. The Queensland Government is aware of concerns in relation to this existing approach, including that it can be unclear and repetitive, can constitute a significant cost and a barrier to accessing the NDIS, and can result in inconsistent and inequitable access and planning decisions by the NDIA.

In its December 2020 report, the Review of the National Disability Insurance Scheme Act 2013: removing red tape and implementing the NDIS Participant Services Guarantee by Mr David Tune AO PSM (Tune Review) makes 29 recommendations to improve NDIS processes. These include the implementation of independent functional capacity assessments (Tune Review, recommendation 7b, page 67). The Tune Review recommended the NDIS Act be amended to provide discretionary powers to require a prospective participant or participant to undergo an assessment for the purposes of decision-making under the NDIS Act, using NDIA- approved providers and in a form set by the NDIA. The Tune Review noted assessment outcomes could be used as evidence to support access requests and planning and would minimise the need for further assessments at plan review, unless the participant’s circumstances had changed. The Tune Review noted key protections should be embedded, including people having the right to choose which NDIA-approved provider undertakes the assessment, and the right to challenge the outcomes of the assessment and undertake a second assessment or arbitration if, for any reason, they are dissatisfied with the assessment. The NDIA’s proposed model departs from the Tune Review in the following respects:

• Independent assessments will be a mandatory part of the access, plan development and plan review process, rather than being used on a discretionary basis
• Participants will have to undergo an assessment at least every five years, even if their functional capacity is stable and their circumstances have not changed, and
• People will have no right to challenge the outcomes of the assessment, and participants can only request another assessment in very limited circumstances.

If designed and implemented appropriately and in accordance with the Tune Review recommendation and findings, there are potential benefits for people with disability and their families from the introduction of independent assessments. These include reduced costs to access the NDIS, greater consistency in NDIS decision-making and greater flexibility of funding.

However, the Queensland Government is opposed to mandatory independent assessments. The Queensland Government and Queensland’s disability sector stakeholders hold a range of concerns about the Commonwealth’s proposed approach to the introduction of independent assessments. This submission identifies these concerns, and recommends possible changes to the approach proposed by the NDIA which the Queensland Government considers could ameliorate these concerns. In this submission, the Queensland Government discusses the intended outcomes and implications from the Tune Review where relevant to each term of reference.

The assessment process and tools

Evidence base for proposed approach: The NDIA conducted voluntary pilots of the independent assessment process in 2019-2020. There are concerns the pilots do not provide a sufficient evidence base for the introduction of mandatory independent assessments as currently proposed, given the cohort which elected to participate in the pilots is not representative of the NDIS population.

It is vital the independent assessment process is founded on a strong evidence base, including independent research, and is designed to ensure participants do not experience trauma. the Queensland Government notes the NDIA has extended the piloting of the independent assessment process, and will deliver 4000 assessments under this pilot process.

However, the Queensland Government considers this piloting should be further extended in order to identify reasons people opt out of the process and how these could be addressed, and should be expanded to cover all disability types, levels of need, age groups, and those who cannot advocate for themselves and lack advocacy support. An independent evaluation of the pilot would increase transparency and strengthen the evidence base.

Vulnerable groups: Under the NDIA’s proposed approach, access requests by people who do not have an exemption and refuse to participate in an independent assessment will be deemed to have been withdrawn. The Queensland Government notes the seriousness of this consequence, and its potential to exacerbate access issues, inequities and other disadvantages experienced by members of the most vulnerable cohorts. Clear, accessible information about this consequence must be available, and culturally appropriate support should be available to assist people gather the evidence required to make either a successful access request or a request for exemption.

The process and tools must minimise the risk people will not engage, including ensuring the process and tools are appropriate for Aboriginal and Torres Strait Islander peoples, and people from culturally and linguistically diverse backgrounds. This requires that the NDIA undertake robust community consultation before settling the proposed approach. Adjustments to the proposed assessment process, or specific exemptions, may be needed for other groups at risk of disengagement. These include: children and young people in the child protection and/or youth justice systems; adults in contact with the criminal justice system; people who have experienced trauma; people in rural and remote areas; some people with Autism or intellectual disability; people with psychosocial disability; and people with impaired decision- making capacity.

There are concerns the assessment tools are not appropriate for people with psychosocial disability, who are already underrepresented in the NDIS, and that the process will result in inaccurate assessments for people with multiple disabilities.

Accuracy of assessments: Residential aged care facilities, hospitals and custodial settings do not enable people to demonstrate their capacity to undertake some key aspects of daily life, such as preparing a meal. Assessments may be inaccurate when undertaken in such environments where the full range of function cannot be demonstrated and considered. Further, some people with disability have conditions which are episodic or have fluctuating needs. The Queensland Government is concerned that functional capacity assessments conducted over an average of three hours, as proposed by the NDIA, are less likely to accurately reflect the needs of the person being assessed than evidence provided by a treating health professional with an established therapeutic relationship with the person. As inaccurate or incomplete assessments will result in plans which do not meet the person’s needs, the Queensland Government considers greater scope is required to enable information from

multiple sources, including from a person’s treating health practitioner, to be taken into account in the assessment process.

The Queensland Government considers it may be redundant to require people to undergo an assessment where they already have evidence of functional capacity. Exemptions could be automatically granted, and alternative evidence of functional capacity provided by relevant professionals, where people have already undergone sufficient functional capacity assessment due to their involvement in another service system such as the child protection, health, aged care or youth justice system, or where a person’s functional capacity is unlikely to change. Granting exemption to these cohorts would reduce the burden on these people with disability and their families, and would potentially reduce costs to the NDIS and free the capacity of the independent assessors to deliver timely assessments to other cohorts.

Exemptions: More information is needed about the criteria for deciding to grant an exemption, what alternative evidence would be acceptable, and whether the costs of gathering that evidence would be met as part of the independent assessment process to maintain equity.

Safeguards: The process should have safeguards embedded, as recommended in the Tune Review. A model of independent assessments aligned to the Tune Review report would enable people with disability to challenge the results of an independent assessment. The Queensland Government notes that, under the NDIA’s proposal, only the NDIA decisions based on the assessment, and not the assessment itself, will be reviewable. A model properly aligned with the Tune review would also provide clear information on the process and supports available, as well as people’s rights and how to exercise them.

While it is noted that a person’s treating health professional may attend their assessment to give information, the Queensland Government is concerned that people will only be permitted to have one support person present during an assessment. Queensland considers people should be able to have multiple support people present during an assessment, as well as an advocate, to ensure comprehensive information is obtained and the person’s rights and interests are safeguarded. The NDIA should also clarify how the costs of having a person’s treating health professional involved in the assessment will be met, including where the NDIA delegate requests additional information to supplement the independent assessment to make an access decision.

Transparency of the process: People with disability should receive not only a summary of their assessment, as proposed, but also information about why certain tools were selected (including the appropriateness of that tool to the person’s disability and circumstances), what additional information was gathered through observation or additional questions, and how this additional information was considered in the assessment outcome.

Planning

Reasonable and necessary supports: The Queensland Government considers the NDIA has not provided sufficient information about how assessment results will translate into personalised budgets, including what consideration will be given to the need for capacity building supports, and how a person’s budget will link with their goals. The Queensland Government notes the Tune Review recommended that work be undertaken to clarify the approach to determining what are considered to be ‘reasonable and necessary’ supports which may be funded under the NDIS, as well to clarify how chronic health conditions are treated under the NDIS. The Queensland Government considers this work should be actioned urgently to ensure the core principles of the NDIS are not inadvertently undermined by the assessment process. The NDIA should also provide greater clarity about how participant goals will be considered alongside the results of functional assessments in the planning process, including how they will be reflected in a participant’s final budget.

Flexible budgets: Queensland notes that independent assessments will be used in determining NDIS participants’ personalised budgets, which will be divided into flexible and fixed components. There is a risk that some people—including young people in the child protection and youth justice systems, children without supportive primary caregivers, and adults with impaired decision-making capacity—may require support during the assessment process to fully represent the impact of their disability on their lives. The Queensland Government further notes the overrepresentation of Aboriginal and Torres Strait Islander peoples in these vulnerable cohorts. Some people may also require support to make appropriate choices in deciding which supports should be fixed and which support should be paid for with their flexible budget. For these reasons, the Queensland Government considers a risk assessment process should occur as part of plan development to ensure some essential items, such as therapy supports, remain fixed rather than being covered by a person’s flexible, discretionary budget.

Queensland notes the risk that flexible budgets may have unintended cost impacts for mainstream service systems if participants choose to free up some of that budget to purchase other NDIS supports by relying on these services to meet needs which should be met through the NDIS. The NDIA should support participants to understand the respective roles and responsibilities of the NDIS and mainstream service systems, as agreed by all Governments in the Applied Principles and Tables of Services.

The NDIA states that, where an assessment results in a significant reduction to a person’s budget, this will be managed through a gradual transition. Any proposal to reduce funding must specifically consider how the risks of reducing funding on a person’s ability to maintain their living arrangement and access transport will be managed, as these supports are key to their wellbeing. Risk management strategies should be developed in partnership with the person, their support network and relevant professionals.

Implications for access and eligibility: There are concerns the use of independent assessments will mean people who would otherwise have accessed the NDIS will not become participants, and people who do access the NDIS will receive reduced individual plan funding. This could occur due to people disengaging from the process or receiving an assessment which underrepresents the impact of their disability. Fewer people than intended accessing the NDIS, or receiving a lower level of funding than intended, will result in poorer outcomes for individuals. It will also adversely affect Queenslanders generally, through Queensland not deriving the full social and economic benefits of its more than $2 billion fixed annual investment in the NDIS. To manage these risks, the Queensland Government considers the introduction of independent assessments must be supported by the establishment of a robust monitoring framework which includes publishing data on the impact of independent assessments on access and funding decisions.

Plan review: The NDIA proposes that participants must undergo an independent assessment at least once every five years. The Queensland Government questions the benefit and cost- effectiveness of requiring a person whose needs are stable to repeatedly demonstrate their functional capacity. The NDIA further proposes that, if a participant refuses to undergo an assessment prior to a plan review, the delegate may decide not to make a decision on a new plan until the person undertakes such an assessment. The Queensland Government is concerned this approach will result in people being left without supports, or force people to remain in an unsuitable or unsafe living arrangements because they lack the funding required to move.

Market and workforce issues

The introduction of independent assessments as proposed has the capacity to exacerbate (and in turn to be adversely impacted by) chronic existing shortfalls in the capacity of markets

to meet the needs of NDIS participants, particularly in rural and remote areas (“thin markets”). The NDIA proposes that independent assessments cannot be conducted by a person’s treating health professional, and the Queensland Government understands that people involved in the delivery of NDIS services will be prevented from also functioning as independent assessors. The Queensland Government shares stakeholders’ concerns that the creation of the proposed panel of independent assessors by drawing panel members away from existing workforces will therefore exacerbate existing shortages of allied health workers available to deliver NDIS services, particularly in rural and remote areas.

While this may be partially alleviated by the NDIA’s proposal to allow applicants and participants a choice about the way in which the assessment is delivered, such as by videolink, people in locations where internet access is unreliable or people who do not have access to a computer will have this choice restricted.

In areas of thin markets, the NDIA’s proposed approach may also create conflicts of interest with the potential to adversely affect people with disability. This is particularly likely to be the case where existing workforce shortages mean assessments must be conducted by people who know the participant and/or have previously delivered NDIS services to them, rather than by independent health professionals. If not managed appropriately, conflicts such as this could undermine the independence, accuracy and consistency of assessments.

There are also a range of concerns about whether the independent assessor workforce will have the knowledge, skills and training to deliver quality, accurate and consistent assessments generally. These concerns include the risk of applicants and participants being matched with assessors who do not have an understanding of their disability or the interaction of multiple disabilities. Further, serious questions have been raised about how the NDIA will ensure assessors have the necessary high degree of cultural competence and experience in the use of interpreters, including Auslan interpreters, and experience in working with people who have severe mental health issues or are on a forensic order. Particularly noting the overrepresentation of Aboriginal and Torres Strait Islander peoples in many of these settings and systems, the Queensland Government also questions how the NDIA will ensure assessors have a good understanding of mainstream services (such as health, education, housing, child protection and justice systems), and are able to access secure or controlled environments (such as correctional facilities, hospitals and forensic facilities).

Noting the significant risk of inaccurate assessments resulting from inappropriate or insufficiently skilled or experienced assessors, the Queensland Government considers more information is needed on how the NDIA will ensure assessors have appropriate skills to match the person’s needs, especially where people have multiple disabilities. These general concerns about the capacity of the assessor workforce will be particularly acute in areas with existing thin markets. The introduction of independent assessments should therefore also be accompanied by work to map anticipated demand for independent assessments and develop specific strategies to address resultant thin market issues, which as noted have the capacity to adversely impact, and be exacerbated by, the introduction of independent assessments.

Impacts for people with disability

Having regard to the concerns outlined above, the Queensland Government considers there is a risk that the independent assessment process, if implemented as proposed by the NDIA, may reduce the number of people accessing the NDIS, or may not generate accurate assessments. A range of concerns have also been expressed that the proposed process could result in delays to the development and review of plans and does not have sufficient regard to the needs and circumstances of some people with disability. If realised, these risks could cause significant adverse impacts for people with disability. These include:

• otherwise eligible people disengaging or being excluded from accessing the NDIS, and particularly members of vulnerable cohorts such as First Nations people, people from culturally and linguistically diverse backgrounds, people with psychosocial disability and people who do not have strong support networks
• plans which contain insufficient funds to meet people’s reasonable support needs, or do not provide adequately for their capacity building or personal goals
• people having to repeatedly prove their disability and its impact on their functional capacity, including where that capacity is stable
• delays to the development and review of plans, potentially resulting in a range of adverse outcomes such as a heightened risk of people experiencing inappropriate hospitalisation, people remaining in unsafe living arrangements, or people being unable to access or maintain secure housing
• risks arising in relation to the expenditure of flexible budgets
• delays to people exiting hospitals, health facilities or custody, and inappropriate transition planning for people exiting these environments, creating a heightened risk of an earlier or unnecessary return to that environment, and
• loss of participant and sector confidence in the NDIS.

The Queensland Government further considers that the introduction of a mandatory new process to access the NDIS may result in increased demand for the appointment of formal decision-makers (including government agencies such as the Public Guardian when acting as a guardian, or the Public Trustee when acting as a financial administrator) to provide support and advocacy to assist prospective applicants and participants to understand and access the scheme.

Impacts for mainstream services

There are also concerns the proposed approach will adversely impact mainstream services by forcing people to rely on mainstream services for supports that should rightly be provided through the NDIS. For example, a provider may elect to leave a participant in the care of a public hospital where their NDIS-funded supports are insufficient for their needs, resulting in an unnecessarily lengthy hospital stay for the person until a plan review occurs and a new plan is generated. As well as the impact on the individual of inappropriate hospitalisation, this added pressure on mainstream services will reduce those services’ capacity to meet the needs of the broader Queensland population. Similarly, the introduction of independent assessments as proposed may result in an independent assessment workforce which is insufficient to meet demand, insufficiently trained and experienced, or unable to reach remote communities in a timely fashion. This may similarly result in delays in the planning process, causing delays to participants exiting health facilities or custodial environments and exacerbating demand for those mainstream services.

These demand pressures on mainstream services may be further exacerbated by the proposed reliance on a relatively brief assessment by a third party in preference to other, richer sources of information about a person’s functioning and needs, such as their treating health practitioner. Again, this may result in assessments which underestimate a person’s support needs, particularly having regard to the episodic and complex nature of some disabilities. Queensland considers the NDIA should encourage the participation of treating health professionals at all stages in the assessment process to ensure the assessment captures the full impact of a person’s disability or disabilities. While this would create an additional expectation for mainstream services during the assessment process, it would assist with

safeguarding a person from receiving an inaccurate assessment, and would ultimately reduce costs on mainstream services due to the person’s reasonable and necessary support needs not being met through the NDIS. This would also require the NDIA to clarify how the costs of the involvement of health professionals will be met.

While the NDIA asserts the independent assessment process will allow the NDIA to understand if a person’s support needs are best provided by the NDIS or other mainstream systems, it is not clear how this decision about which service system should provide which supports is proposed to be made. Decisions about the appropriate system to provide supports must be consistent with the agreed Principles to Guide the Responsibilities of the NDIS and Other Service Systems, which include the Applied Principles and Tables of Services, to avoid potential confusion and cost-shifting to mainstream services. These decisions should be made collaboratively with the mainstream service system and subject to work with states and territories recommended by the Tune Review, not unilaterally by the NDIA.

Conclusion

The Queensland Government notes many of the concerns outlined above are reflected in feedback from people with disability and disability stakeholders. Queensland considers it vital that these concerns are addressed, and a workable approach is developed, before independent assessments are implemented. Significant further work is needed to build the necessary capacity and confidence in the disability sector, and to ensure independent assessments are designed and implemented in a way which is discretionary rather than mandatory and avoids unintended or otherwise inappropriate resourcing impacts for mainstream services.

These concerns, and the Queensland Government’s recommendations for how they can be addressed, are detailed in the Queensland Government’s feedback on each of the terms of reference for the inquiry as set out below.

Term of Reference: (a) The development, modelling, reasons and justifications for the introduction of independent assessments into the NDIS

The Queensland Government acknowledges that independent assessments, if designed and implemented appropriately, have the potential to provide important benefits for people with disability and to support the sustainability of the NDIS. The NDIA has provided details about the reasons and justifications for introducing mandatory independent assessments in a range of published documents, including: Access and eligibility policy for independent assessments, Independent Assessment Framework, and Independent Assessments: Pilot learnings and ongoing evaluation plan. While the Queensland Government considers the reasons, justifications and associated data analysis are helpful, the Queensland Government and the disability sector have significant concerns about the proposed introduction of mandatory and repeated independent assessments. These include concerns about independent assessment processes and tools, and NDIA decision making based on independent assessment outcomes. Accordingly, the Queensland Government considers the introduction of cost-free independent assessments should be implemented in alignment with the recommendations and advice of the Tune Review, subject to the outcomes of meaningful consultation with stakeholders, and with adequate protections in place. This includes independent assessments being discretionary, as recommended in the Tune Review, and not mandatory,.

A key NDIA rationale is that providing independent assessments at no cost to the person with disability has the potential to create greater equity and consistency of NDIA access and planning decisions. However, the Queensland Government is concerned the full range of potential NDIS participants has not been considered in the design of the NDIA’s proposed process. The Queensland Government notes the examples of people with disability given by the NDIA in the Access and eligibility policy for independent assessments consultation paper are of a strong self-advocate and a person with a family advocate (pages 14 and 17). People with disability who have difficulty advocating and/or providing accurate information about their functional abilities (for example, some people with autism, intellectual disability or psychosocial disability), or who do not have strong support networks, must be considered in the design of the independent assessment process. While the Queensland Government acknowledges the consultation being undertaken by the NDIA, there is a risk that people in these vulnerable groups will not be able to engage without targeted outreach and assistance. The conduct of the consultation, and the design of the independent assessment process, must be accessible to all people with disability, their families, carers and advocates.

Limitations of the pilots as an evidence base for mandatory independent assessments

The Queensland Government acknowledges that the NDIA’s second independent assessment pilot, which was interrupted by the COVID-19 pandemic, has been resumed and will provide further information and learnings to inform implementation of independent assessments. The Queensland Government notes the pilot will continue on an opt-in basis until 4000 assessments have been conducted. However, the NDIA’s Independent Assessments: Pilot learnings and ongoing evaluation plan does not address the following limitations, which will adversely impact the validity of the second pilot:

• Participation in the initial independent assessment pilots is not representative of the broader NDIS participant population. For example, no pilot was conducted in rural or remote locations; there were very few participants from Aboriginal and Torres Strait Islander or culturally and linguistically diverse backgrounds; the majority of participants

had a high level of function; and the majority of participants were children. Of the 600 participants across the initial pilot, only 45 had a psychosocial disability. Critically, the pilot did not include any people with psychosocial disability who are reluctant to engage with independent assessments.

• The majority of pilot participants were already NDIS participants. Less than five percent of pilot participants were applying to access the NDIA.

• The initial and second pilots only ask participants about their satisfaction after the assessment, not after the person has received the assessment report or been informed of the outcomes of NDIA decisions based on the assessment.

• While some people chose to opt out of the initial pilot, the NDIA has not investigated the reasons people declined to participate, nor what could have been done to have encouraged them to remain in the pilot.

• Reporting on the pilots does not include the outcomes of access and planning decisions based on independent assessments (e.g. the frequency of unsuccessful access requests and changes to plan funding).

The Queensland Government considers further piloting, adjusted to address the above limitations, should occur to support the design of independent assessments. This piloting should occur over a longer period of time, be designed to be reflective of the whole NDIS participant and applicant base and to capture reasons people choose not to participate on a voluntary basis, and involve analysis of the outcomes of the process. After piloting, rather than proceeding to introduce assessments as mandatory for all new participants and existing participants at plan reviews depending on the person’s circumstances, it may be appropriate to temporarily introduce independent assessments on a voluntary basis only, to allow further refinements to be made to address concerns.

The need for safeguards to be embedded

The Queensland Government notes a key NDIA rationale for introducing independent assessments is recommendation 7 of the Tune Review, which recommends amendments to the NDIS Act to:

a) allow evidence provided to the NDIA about a prospective participant or participant to be used for multiple purposes under the NDIS Act, including access, planning and plan review processes, and

b) provide discretionary powers for the NDIA to require a prospective participant or participant undergo an assessment for the purposes of decision-making under the NDIS Act, using NDIA-approved providers and in a form set by the NDIA.

The NDIA’s proposed introduction of mandatory independent assessments, with limited available exemptions, does not reflect the discretionary nature of the powers as envisaged in the Tune Review recommendation.

The NDIA is also proposing NDIS participants be required to undergo repeated independent assessments, at a minimum every five years. The Queensland Government considers the use of appropriately designed independent assessments may be useful in the following circumstances proposed by the NDIA: to establish participant functional capacity on entry to the NDIS; following a significant change in personal circumstances such as living situation or change in carer capacity; following a change in life stage event such as transitioning from school; or following a significant change in functional capacity. However, the Queensland Government considers this rigid requirement for participants to undergo repeated independent

assessments may be inappropriate where a person’s functional capacity is stable, or where other, richer sources of information about a person’s functioning are available.

The Tune Review also states that key protections need to be embedded in the approach to assessments (page 66), and particularly that participants should have the right to challenge the results of the functional capacity assessment. This should include the ability to undertake a second assessment or seek some form of arbitration if, for whatever reason, a person is unsatisfied with the assessment. By contrast, the Queensland Government notes the NDIA is proposing participants have the right to challenge the independent assessment only on the more limited ground that the assessment was not consistent with the Independent Assessment Framework. Feedback from the disability sector indicates that the criteria for success and key protections proposed by the Tune Review are not addressed through the NDIA’s current proposal.

An important safeguard for people with disability is the opportunity to have people they choose to assist them to participate in decision-making processes which affect their lives, including by providing information about the person. The NDIA proposes that a person with disability will be able to have one support person present during the independent assessment, which may be the person’s treating health professional or a substitute decision-maker. However, the Queensland Government notes a person with disability may wish to have more than one person present, as one person may not be appropriately equipped to provide information about every aspect of a person’s life.

Additionally, the Queensland Government considers special safeguards may be required to ensure people with impaired decision-making capacity are not disadvantaged by the assessment process. These safeguards may include that a person’s formal or informal substitute decision-makers are appropriately involved in the process to ensure the assessment accurately assesses the person’s functional capacity, and is properly informed by factors impacting on their functional capacity which the person may not know or be able to communicate. In developing these safeguards, the Commonwealth should consult closely with persons with impaired decision-making capacity, advocates, support networks and substitute decision-makers (including Public Guardians and Public Trustees).

Further, the Tune Review found the complexity of NDIS access processes was increasing demand for advocacy processes (Tune Review, page 44). Given this, a person undergoing an independent assessment may also wish to have an independent advocate attend with them, in addition to their support person, to ensure they are able to properly understand and engage with the assessment process. The Tune Review also found some groups of people face additional challenges in accessing the NDIS, including Aboriginal and Torres Strait Islander peoples, people from culturally and linguistically diverse backgrounds, and people with psychosocial disability (Tune Review, pages 85-88). Members of these groups may particularly benefit from having a culturally appropriate independent advocate present during the independent assessment.

For the potential benefits of independent assessments to be achieved, it is important the NDIA resolves the concerns of people with disability about the evidence base and safeguards before independent assessments become mandatory. The Queensland Government considers that the disability sector needs to be confident the stated aim of independent assessments – namely, an NDIS that is simpler and fairer – will be achieved. The Queensland Government is concerned that, to date, the evidence and information on independent assessments provided by the NDIA has not yet been sufficient to build the necessary confidence of the sector.

Recommendations:

The NDIA should:

1. Align the implementation of independent assessments with the Tune Review recommendation for independent assessments to be discretionary and not mandatory.

2. Extend and expand the second independent assessment pilot to address the limitations of the pilots identified above.

3. Following the conclusion of the second pilot continue with voluntary independent assessments to provide an opportunity for assessors and the NDIA to learn from people with disability, their support networks and the disability sector about how to resolve their identified concerns, and ensure independent assessments can resolve, rather than inadvertently exacerbate, potential inconsistencies and inequities. Embedding the key protections recommended by the Tune Review into the independent assessment process would be an important step in addressing sector concerns.

4. Permit persons with disability to have more than one other person present during an independent assessment to provide support and information – for example, a family member, a substitute decision-maker, and one or more treating health or disability professionals.

5. In addition to support persons, permit applicants and participants to have an independent advocate present during independent assessments and following access and planning decisions.

6. In consultation with persons with impaired decision-making capacity, advocates, support networks and substitute decision-makers, consider developing special safeguards for people with impaired decision-making capacity.

The Queensland Government further recommends that:

7. An independent evaluation of the pilots should be conducted to provide additional detailed evidence regarding the impacts of the introduction of independent assessments.

Term of Reference: (b) The impact of similar policies in other jurisdictions and in the provision of other government services

In its recent report from its inquiry into general issues around the implementation and performance of the NDIS (JSC on the NDIS: General Issues), the Joint Standing Committee on the NDIS cites international research which has identified adverse trends for people with psychosocial disability associated with assessments.1 These adverse trends include increased rates of suicide and widening inequalities in socially disadvantaged areas (JSC on the NDIS: General Issues, pages 30-31). It is essential that the NDIA recognises the potential vulnerability of some people with disability and does not, through implementation of independent assessments, unintentionally cause additional trauma and inequality.

1 D Taylor-Robinson, D Stuckler, R Loopstra and A Reeves, ‘“First, do no harm”: are disability assessments associated with adverse trends in mental health? A longitudinal ecological study’, Journal of Epidemiology and Community Health, Vol. 70, No. 4, 2015.

The Queensland Government considers the proposed introduction of a mandatory new process—with such particular formal requirements and carrying such significant implications for people with disability—may result in increased demand for formal substitute decision- makers to support people with impaired decision-making capacity. These substitute decision- makers include government agencies such as the Public Guardian when acting as a guardian, or the Public Trustee when acting as a financial administrator. This potential for increased demand would reflect experience from the commencement of the NDIS, at which time the Queensland Civil and Administrative Tribunal received an influx of applications for the appointment of substitute decision-makers to assist people to make access requests and liaise with the NDIA. If not managed appropriately, any increased demand as a result of the proposed implementation of independent assessments could give rise to a risk of people without substitute decision-makers being disadvantaged and experiencing less favourable access and planning outcomes.

Recommendations:

The Queensland Government recommends that:

8. To assist with resolving issues and allaying the concerns of the disability sector, independent research on the impact of independent assessments and associated NDIA decision-making should be funded to provide evidence that independent assessments are not having unintended negative consequences for people with disability.

9. To ensure people without substitute decision-makers are not disadvantaged, consideration should be given to implementing appropriate mechanisms to measure and manage any related increased demand for formal substitute decision-makers.

Term of Reference: (c) The human and financial resources needed to effectively implement independent assessments

The NDIA consultation documents indicate independent assessors will be suitably qualified allied health professionals. However, a person’s treating health professionals will be ineligible to conduct an independent assessment with that person (Access and eligibility policy for independent assessments, page 16y).

The Queensland Government notes the Tune Review suggested that “… in at least the short term, the NDIA should not implement a closed or deliberatively limited panel of providers to undertake functional capacity assessments. Rather, engagement issues need to be monitored closely and the panel of approved providers should be dynamic and evolve to ensure the new approach does not drive disengagement” (Tune Review, page 67). The Queensland Government understands the NDIA has conducted an open tender process to select organisations to deliver these assessments. On 26 February 2021, the NDIA announced the eight organisations that will make up the Independent Assessment Panel. The NDIA advise these organisations will be in place for at least three years, and two of these organisations have already been involved in the pilot of assessments. Across 90 per cent of Local Government Areas (LGAs), people can choose from at least three organisations for an in- person assessment (100 per cent of LGAs in Queensland).

The Queensland Government notes there is a shortage of allied health professionals across a range of communities, particularly in rural and remote areas. As identified by the Queensland

Productivity Commission in the draft report of its current inquiry into the NDIS market in Queensland, drawing on the same pool of health professionals to both deliver supports and conduct independent assessments could exacerbate current difficulties being experienced by NDIS participants and others in accessing allied health services in existing thin markets, particularly in rural and remote locations2. This may disadvantage some participants by preventing them from accessing the assessment in an appropriate environment, or by exposing them to longer delays than participants in other areas.

The NDIA has not provided any information about the extent of this risk. If the NDIA has not determined the demand for independent assessments, and the number of assessors required to conduct these assessments, including in regional and remote locations, it poses an unplanned significant market risk.

The Queensland Government notes the NDIA proposes that independent assessments will be able to be undertaken remotely, such as via video calls. However, internet and phone connections can be unreliable in some rural and remote locations, and some participants do not have or cannot afford the necessary equipment and internet services to access these alternative methods. Further, videoconferencing facilities in corrective service facilities are prioritised for court proceedings and personal and professional visits, meaning access for people in custody to videoconferencing facilities for NDIS purposes is likely to be limited. These access issues could result in significant barriers for people in situations where an independent assessment cannot be conducted in person.

Recommendations:

The NDIA should:

10. Noting the introduction of independent assessments has the potential to exacerbate existing thin market issues, the NDIA needs to map anticipated demand for independent assessments to understand the extent of this risk, and develop specific strategies to address resultant thin market issues.

11. Demonstrate how people living in areas of thin markets, including in rural and remote locations, and people with limited access to communications technology will not be disadvantaged by the introduction of independent assessments, including by ensuring: sufficient assessors are available to enable quality assessments to be undertaken in a timely manner; and workable alternatives to face-to-face assessments are available.

12. Demonstrate how workforce impacts will be addressed, to avoid reducing the availability of allied health or therapy supports where there are thin markets.

Term of Reference: (d) The independence, qualifications, training, expertise and quality assurance of assessors

Market and workforce issues

The Queensland Government shares stakeholders’ concerns that the proposed creation of a panel of independent assessments has the capacity to exacerbate (and in turn to be adversely impacted by) chronic existing shortfalls in the capacity of markets to meet the needs of NDIS participants, particularly in rural and remote areas (“thin markets”).

2 Draft report: the NDIS market in Queensland, Queensland Productivity Commission, 2020 page 95

For example, it is noted that a person’s treating professional will be prohibited from delivering the person’s independent assessment. Further, assessors will be precluded from conducting assessments where they have, or could be perceived as having, conflicts of interest (Information paper: Improving the National Disability Insurance Scheme – Better Participant Experience and Improved Access and Planning (November 2020), page 10). In areas where there are already insufficient pools of allied health workers available to deliver NDIS services, particularly in rural and remote areas where there is already a shortage of these professionals, the creation of panels may exacerbate existing thin markets by drawing panel members away from these pools.

Further, there is a risk of thin market issues giving rise to conflicts of interest for the independent assessor workforce. The Queensland Government notes that attracting and retaining allied health workers in rural and remote areas presents particular challenges and that, in some communities, there may only be one professional available with suitable qualifications to conduct independent assessments. For these reasons, the Independent Assessment Framework acknowledges that, in some situations, there will be no option but for an independent assessment to be delivered by a person who knows the person they are assessing, particularly in rural and remote areas (Independent Assessment Framework, page 26). Queensland stakeholders have raised concerns about the potential for this situation to give rise to conflicts of interest and potentially inconsistent assessment outcomes, for example where an assessor has previously delivered services to the person as an NDIS provider prior to the person being referred to them to undertake an assessment. In these situations, there is a potential risk of assessors forming judgements on the basis of their prior knowledge of the person, rather than the outcomes of the assessment.

The Queensland Government recommends the NDIA consider implementing appropriate safeguards to ensure assessments in these circumstances are truly independent as intended, and are not affected by assessors’ biases or pre-existing judgements of the person’s capacity. These safeguards could include establishing appropriate benchmarking and monitoring of assessment outcomes, to ensure assessments by assessors known to the person are consistent with those delivered by assessors who do not know the participant.

Cultural competence and the communication needs of participants

The Tune Review highlighted that one of the biggest risks in implementing independent assessments would be disengagement, due to persons with disability refusing to interact with any of the NDIA-approved assessment providers. The Tune Review noted this was likely to be a particular risk for Aboriginal and Torres Strait Islander peoples, people from culturally and linguistically diverse backgrounds, and those with psychosocial disability (Tune Review, page 67). This risk is particularly concerning, given First Nations people and people from culturally and linguistically diverse backgrounds are already underrepresented in the NDIS.

Stakeholders have highlighted that existing First Nations cultural expertise among NDIA planners and allied health professionals is currently very low. Given how critical this cultural expertise will be to the successful delivery of independent assessments, the Queensland Government considers this gap should be addressed to ensure independent assessors have a high level of First Nations cultural expertise.

Independent assessors should also have a high degree of cultural competence in order to interact appropriately with, and assess, people from culturally and linguistically diverse backgrounds and people from the deaf community. This will include an ability to access and use appropriately qualified translators, and expertise in working with Auslan interpreters.

Professional backgrounds of assessors

Independent assessments will be conducted by assessors from a variety of different professional backgrounds, such as occupational therapists, speech language pathologists, social workers, and psychologists. This difference in assessors’ professional backgrounds presents inherent challenges to the delivery of independent assessments. In particular, there are significant differences in the assessment training delivered to, and the assessment processes undertaken by, occupational therapists, physiotherapists, speech pathologists and psychologists compared to rehabilitation counsellors and social workers. The Queensland Government is concerned that these differences in training and processes could impact on the consistency and equitable delivery of independent assessments.

Independent assessors will need to have extensive knowledge, skills and competence to engage with and assess people with different, and sometimes multiple, disabilities or conditions. This includes expertise about people with cognitive impairment or intellectual disability and their specific therapeutic needs. The Queensland Government notes the NDIA indicates, in a range of communications, that assessors will have the experience and training to administer the independent assessment tools across a wide range of disabilities and ages. Further, the NDIA advises that multiple assessment tools will be used to capture the full impact of a person’s disabilities on their functional capacity (Access and eligibility policy for independent assessments, page 8; Independent Assessment Framework, page 21). Noting the significant risk of inaccurate assessments which may result from inadequately skilled or insufficiently experienced assessors, the Queensland Government considers that more information is required on how the NDIA will ensure assessors have the appropriate skills to achieve these ambitious goals.

The Queensland Government is further aware of stakeholder concerns about the risk of assessors’ professional training impacting on assessment outcomes. For example, there are concerns that training in the appropriate use of alternative communication methods, such as augmentative communication and Auslan, may vary across professions, with the consequence that some assessors may be less likely than others to use these methods where required. By way of another example, having regard to the vulnerability of people with impaired decision-making capacity, it is important that assessors are appropriately trained in engaging and working with support persons, advocates and substitute decision-makers.

Training and expertise

Queensland considers it is critical that independent assessors have appropriate training and a strong understanding of the child protection, youth justice, and adult corrective services systems, and an awareness of the issues associated with the overrepresentation of Aboriginal and Torres Strait Islander peoples in those systems. This should include an understanding of the complexities of those systems, such as the link between trauma and attachment issues (that is, where the ability of a person to form healthy secure attachments later in life is reduced due to an early separation from parents, lengthy hospitalisation, incidents of trauma/neglect, or an otherwise troubled childhood), and disability and future psychosocial disability. Further, the Queensland Government considers it important that independent assessors are appropriately trained about the guardianship system relevant to the jurisdiction in which the assessment takes place, and of the particular needs of people with impaired decision-making capacity. It is also important that independent assessors have expertise in relation to the applicable positive behaviour support and restrictive practices framework in the jurisdiction in which they operate, which can vary significantly between jurisdictions, and which may be relevant to the assessment of support needs.

Transparent monitoring and reporting

The Queensland Government notes the NDIA plans to establish a “robust monitoring framework to ensure the way independent assessments are delivered is consistent and reliable, including across different parts of the country and by different assessor organisations” (Access and eligibility policy for independent assessments, page 23). However, the NDIA’s intention is not clear on this point. The Queensland Government is concerned that inconsistencies in expertise and backgrounds of assessors will adversely impact on NDIS access for various cohorts and people with complex or multiple disabilities. Therefore, it is important that the NDIA implement transparent monitoring and reporting mechanisms that enable appropriate oversight of independent assessments. This is particularly important if, as currently proposed, there is limited opportunity for people to challenge the outcomes of their independent assessment.

These general concerns about the capacity of the assessor workforce will be particularly acute in areas with existing thin markets. The introduction of independent assessments should therefore also be accompanied by work to map anticipated demand and develop specific strategies to address resultant thin market issues, which as noted above have the capacity to adversely impact, and be exacerbated by, the introduction of independent assessments.

Recommendations:

The NDIA should:

13. Demonstrate how it will ensure the independence of assessors in areas of thin markets.

14. Consider implementing appropriate safeguards to ensure that, where it is unavoidable that an assessment is delivered by an assessor who knows the participant, conflicts of interest either avoided or managed and assessments are independent, accurate and consistent.

15. Establish appropriate processes and training requirements to ensure independent assessors are culturally competent to undertake assessments with First Nations people and people from culturally and linguistically diverse backgrounds.

16. Ensure assessors have training in engaging and working with appropriately qualified interpreters, including Auslan, and with support persons, advocates and substitute decision-makers for people with impaired capacity.

17. Establish clinical governance to support the consistency and quality of assessments conducted by assessors from diverse professional backgrounds, and to ensure independent assessors from diverse professional backgrounds can accurately assess the functional impact where a person has multiple disabilities.

18. Ensure assessors have training regarding:

• the particular needs of people with disability in the child protection, youth justice, and adult corrective services systems, the overrepresentation of Aboriginal and Torres Strait Islander peoples in those systems, and the complexity arising in relation to those systems and restrictive practices frameworks

• the guardianship system in the jurisdiction in which the assessment takes place, and the particular needs of people with impaired decision-making capacity, and

• the applicable positive behavior support and restrictive practices framework in the jurisdiction in which the assessment takes place.

19. Implement transparent reporting mechanisms to allow for monitoring and oversight of the delivery of independent assessments to ensure the assessors are providing consistent assessments, and any gaps in assessors’ knowledge and understanding are addressed as they are identified.

20. Undertake work to map anticipated demand for independent assessments, and develop specific strategies to address thin markets and workforce issues caused or exacerbated by the introduction of independent assessments.

Term of Reference (e): The appropriateness of the assessment tools selected for use in independent assessments to determine plan funding

Validity for different disability types and cultural groups

The NDIA’s Independent Assessment Framework notes that the validity of an assessment tool relates to the extent to which an assessment delivered using that tool measures the quality it is claiming to measure (page 29). Drawing on this concept of validity, Queensland stakeholders have raised concerns about the validity for some types of disability and some cultural groups of the independent assessment tools selected by the NDIA. For example, some of the assessment tools selected by the NDIA were originally developed in the context of brain injury rehabilitation.

Two of the three independent assessment tools proposed for psychosocial disability, the CHIEF and the Vineland-3, have not been researched or validated for use with people with psychosocial disability, and were designed for other populations and purposes. Vineland-3 invalidity for psychosocial disability, where the impairment is due to mental health issues, is also confirmed by the NDIS Quality and Safeguarding Commission’s Compendium of Resources for Positive Behaviour Support.

In terms of construct validity, the constructs being measured with Vineland-3 and CHIEF are adaptive behaviour and environmental factors respectively, not functional capacity. There are significant issues with assessing functional capacity using assessment tools not researched as reliable or validated for this purpose, for people with psychosocial disability. These concerns are exacerbated when such tools are used in combination and in a novel context, such as the NDIS.

The Independent Assessment Framework further notes it does not necessarily follow that an assessment tool which has been established as suitable for use in its country of development will similarly be suitable for use in Australia or across all sections of the population (Independent Assessment Framework, page 30). By extension, the Queensland Government considers that tools and approaches which are suitable for the general Australian population may not necessarily be suitable for use with Aboriginal and Torres Strait Islander peoples or people from culturally and linguistically diverse communities. Despite this, the Independent Assessment Framework does not consider the suitability of the assessment tools or approach for use with these groups. The Queensland Government is therefore concerned about the validity of assessments conducted using tools which are not culturally sensitive or valid, especially in the context of First Nations peoples and people from culturally and linguistically diverse backgrounds. The Queensland Government does not consider that this concern can be adequately ameliorated through the cultural competence of individual assessors.

The NDIA’s Access and eligibility policy consultation paper states the delivery of assessment tools can be tailored (Access and eligibility policy for independent assessments, page 19), but provides limited details about how this may occur. The Queensland Government considers the NDIA should provide further clarity around how the independent assessor will identify which tools are to be administered for each individual.

Further detail of the Queensland Government’s position on the appropriate use of assessment tools with people with psychosocial disability is provided at Terms of Reference (k) below.

A consistent approach to additional information requirements is needed

The Independent Assessment Framework refers positively to the gathering and use of supplementary information and informal observation, both by assessors during the assessment process and subsequently by the NDIA delegate. In particular, the Independent Assessment Framework notes that use of this additional information is necessary to acknowledge the complexity of disability and humanity. This information may include additional personal and environmental factors, individual goals, observations, and parent and caregiver perspectives, and may be sourced from parents, carers, significant others and health professionals as needed (Independent Assessment Framework, pages 24-25). The Independent Assessment Framework notes that this approach of combining standardised interview/questionnaire assessments with informal observation allows for function to be considered across different settings and different times, rather than simply reflecting a person’s performance at a particular point in time and in an unfamiliar or unnatural setting (page 26).

The Queensland Government considers it will be critical for assessors and delegates to have a consistent understanding of when such additional information is required, and the approach to obtaining such information, to ensure consistency in approach and equity of outcomes.

Transparency in the assessment process

The Queensland Government notes that, under the NDIA’s proposal, people who have participated in an assessment will receive a summary of the results of the assessment. The Queensland Government considers that, in addition to summarising the results of the assessment, the summary should include information about: how the assessor selected the tools used; how these tools are appropriate for the person’s disability and circumstances; what additional information was gathered; and how this additional information was considered in the assessment outcome. People should also be entitled to receive a full copy of the assessment report. Providing this additional information would greatly increase the transparency of the assessment process, and would enable participants to have confidence the assessment was tailored to their needs. Where necessary, it would also give the participant relevant information to support an appeal that the assessment was not conducted consistently with the Independent Assessment Framework. This material should also be provided to a person’s representatives, including substitute decision-makers.

Recommendations:

The NDIA should:

21. Demonstrate the validity of the selected assessment tools for a wide range of people with disability, including people with different disability types and people from different cultural backgrounds, particularly First Nations peoples.

22. Provide detailed information about how particular assessment tools will be selected for each person.

23. Provide detailed information about what supplementary and observational information will be obtained and considered, the circumstances in which it will be used, and how it will be gathered and provided back to participants.

24. Ensure each participant (and their representatives, including substitute decision- makers) receives a summary of how the assessment was conducted and tailored to their needs, disability and circumstances, and a complete copy of the assessment report.

Term of Reference (f): The implications of independent assessments for access to and eligibility for the NDIS

The Queensland Government remains strongly committed to the success of the NDIS, evidenced by Queensland’s fixed annual contribution to the NDIS of over $2 billion. This reflects the Queensland Government’s firmly held belief in the capacity of this important social reform to deliver improved outcomes for people with disability, and to deliver economic benefits for Queenslanders generally through job creation, skills development and increased workforce participation. For these reasons, it is important that everyone who is eligible for the NDIS is able to enjoy the full benefits of the scheme, including by accessing the reasonable and necessary supports to which they are entitled under the NDIS Act.

The NDIA is proposing that independent assessments become a mandatory part of the process to determine eligibility for the NDIS and access to supports. While the NDIA website states there are no minimum or maximum time limits for independent assessments, the NDIA elswhere estimates the assessment process will take around three hours (Access and eligibility policy for independent assessments, page 18).

The Queensland Government understands stakeholders are concerned that, if not implemented appropriately, independent assessments may result in people not entering the NDIS despite otherwise being eligible, as well as in reduced individual plan funding for people who do enter the NDIS. These are particular risks for vulnerable cohorts, such as people with severe and complex mental illness, who may disengage from the process or otherwise receive an inaccurate assessment because the full extent of their functional impairment may not be clear or easily identified in a three-hour period. The impact of the use of independent assessments on access to the scheme and the level of funding participants receive should be monitored and published to allow unintended adverse consequences to be identified and addressed.

Vulnerable cohorts at risk of becoming underrepresented in the NDIS due to disengaging from, or being disadvantaged by, the independent access process include:

• children
• children and young people in child protection or youth justice system
• people who have experienced trauma
• people with psychosocial disability
• Aboriginal peoples and Torres Strait Islander peoples
• people from culturally and linguistically diverse backgrounds
• some people with Autism and intellectual disability
• people who are homeless/at risk of homelessness or in boarding houses/hostels

• people in custodial settings, including both adult and youth justice settings
• people without strong informal support networks, and
• people with impaired decision-making capacity.

Access request lapsing if assessment not completed in 90 days

The NDIA indicates that accessible and tailored options for individual assessments will be available for applicants and different cohorts. However, if a person does not complete an independent assessment within 90 days of an assessment being scheduled with an assessor, their access request is deemed to have been withdrawn (Access and eligibility policy for independent assessments, pages 18, 20 and 21). The Queensland Government notes some groups of people with disability may be at greater risk of having their access request lapse, including Aboriginal and Torres Strait Islander peoples, people from culturally and linguistically diverse backgrounds, people in justice settings, and people with psychosocial disability. The Queensland Government notes the seriousness of this consequence, particularly for already vulnerable cohorts, and its potential to significantly exacerbate inequities and other disadvantages already experienced by members of these cohorts. As noted in the Tune Review, it is important that the risk of disengagement by vulnerable people with disability is monitored and addressed by the NDIA (Tune Review, page 66). Strategies could include sending reminders and offering pre-access support to the applicant, and their support person if required, prior to expiration of the 90-day deadline.

The Queensland Government recommends that, as part of the NDIA’s second independent assessment pilot, data should be gathered from those who decline to participate about their reasons for declining and how they could be supported to undertake an independent assessment. This data could inform enhancements to address the risk of disengagement and improve the independent assessment process.

Risk of disengagement could also be reduced by maximising the choice of independent assessor. The Queensland Government acknowledges the NDIA’s proposal that, where possible, applicants will be able to express their preferences about which organisation they would like to complete their independent assessment (Access and eligibility policy for independent assessments, page 18). It is important that the NDIA maximise the opportunities for applicants in rural and remote areas to exercise choices in relation to their independent assessment provider.

Independent assessments for people with disability in hospital

The Queensland Government has concerns about the potential adverse impact of independent assessments on hospital discharge. The NDIA is proposing an independent assessment must be scheduled within 10 days of an access request and completed within 90 days. These lengthy timeframes will mean some people, who could have been discharged earlier, may remain in hospital unnecessarily while waiting for an independent assessment. A person remaining in hospital unnecessarily is at risk of experiencing functional decline and consequently becoming more dependent on NDIS supports once they are eventually discharged. In addition, there are potential mental health impacts of any delay in discharge, as well as an increased risk of the person being exposed to hospital-acquired infection. As well as these negative potential impacts on the person with disability and potential increased NDIS costs, delayed discharge has significant resourcing implications for mainstream health services.

It is also unclear how independent assessments will be undertaken when a person with disability is in hospital and there are credentialing requirements to be met in order for

independent assessors to access the hospital campus. The Queensland Government also questions the benefit of an independent assessor undertaking a further assessment in relation to a person with disability in hospital where relevant allied health staff have already undertaken assessments (including the assessments noted in the Independent Assessment Framework). This is particularly the case if the person has challenging behaviours.

As part of the NDIS access process, applicants are required to provide evidence they have a disability, and that the disability is permanent or likely to be permanent. To manage the high numbers of people entering the NDIS during the transition years, the NDIA used access lists which streamlined the process of evidencing disability for some people. Lists A and B were used to assist in determining whether a person’s condition met the disability requirements. If the person’s condition was on one of the lists, no further evidence of permanence was required.

Under the NDIA’s proposed new access and eligibility policy, a medical diagnosis and/or evidence of disability and permanence determined by a health professional will still be required (Access and eligibility policy for independent assessments, page 13) prior to the NDIA deciding that an applicant is eligible for the independent assessment process. The process of obtaining a disability diagnosis, including evidence that the person’s disability is significant and permanent, can be challenging and costly, particularly when a multidisciplinary approach is required for this diagnosis. The Queensland Government considers it would be more efficient, and cost effective for prospective participants, for the NDIA to maintain an equivalent to ‘List A’. This list was used to manage the high volumes of access requests during transition. If a person provided evidence they had been diagnosed with a disability type on ‘List A’, no further assessment was required to demonstrate the person had met the disability access requirements. Maintaining an equivalent to ‘List A’ for the purposes of independent assessments would reduce the burden of gathering evidence to support an access request for many people with disability and their families, and reduce the impost on health professionals.

Pre-access support

The NDIA intends to provide accessible and easy to navigate information on the new access process and independent assessments, with Local Area Coordinators and Early Childhood Partners to support people to make an access request to the NDIS where necessary (Access and eligibility policy for independent assessments, page 13). However, the Queensland Government considers the introduction of independent assessments may increase the need for pre-access supports for some people. These include people seeking access to the NDIS for the first time, people with psychosocial disability, people from culturally diverse backgrounds and First Nations people, people with cognitive impairment or intellectual disability and other multiple health and disability issues, and people with impaired decision- making capacity. Similarly, some families of students with disability, as well as students in senior schools, find it challenging to navigate the NDIS. In addition, some families, especially those experiencing disadvantage or with more than one child with disability, need assistance to complete NDIS access forms. These difficulties may be exacerbated through the introduction of a new process which people with disabilities and families must negotiate in order to access the NDIS.

Information provided by health professionals

The Queensland Government considers there remains significant uncertainty about how information will be obtained from treating health professionals and others as part of the pre- assessment and assessment process.

Before an independent assessment is undertaken, health professionals will be required to provide information about what interventions or supports have been considered and, where applicable, demonstrate that all reasonable supports and treatments have been identified and/or administered. The Queensland Government notes the NDIA is yet to provide details about this information to be required from health professionals (Access and eligibility policy for independent assessments, pages 13-14).

The Queensland Government further notes that, prior to an independent assessment being undertaken, the applicant will also need to nominate someone who knows them well to attend the assessment and provide information to the assessor. This is necessary to satisfy the requirements of the Vineland-3 assessment tool (Access and eligibility policy for independent assessments, page 19). This person may be a family member, support person or treating health professional (page 20). However, as noted above, the Queensland Government is concerned it is not clear whether multiple people may attend to provide the required assessment. People with disability need clear information about how many people can attend the independent assessment process with them, whether these people can contribute information during the assessment process, and how many people can provide information when the Vineland assessment tool is being administered. This may be particularly relevant for people with complex disabilities who are receiving services from multiple mainstream services.

The NDIA states additional information may be required in certain circumstances to support a final access decision, and that this may involve the NDIA seeking extra information from parents, carers, significant others and health professionals as needed. If a person with disability is required to source additional information from their health professional, it is not clear whether this will be at the person’s expense or covered by the NDIA as part of the costs of the independent assessment. In addition, it is not clear who will pay for a person’s health professional to attend an assessment.

Recommendations:

The NDIA should:

25. Establish a robust monitoring framework which includes publishing data on the impact of independent assessments on access and funding decisions.

26. Provide clear guidelines for health professionals about what information they may be required to provide for NDIS access requests and assessments, including in relation to permanence of the person’s disability.

27. Ensure clear, accessible information is available to people with disability explaining the implications for their access request if the assessment is not completed within 90 days.

28. Ensure timely assessments for people who are in hospital.

29. Ensure pre-access support is available to people with disability, or families, to make an access request. This should include support for: obtaining evidence of disability; seeking an exemption for independent assessments; and alternative options for providing evidence, if required.

30. Ensure specific pre-access support is available for cohorts at risk of disengagement, including people with psychosocial disability, people from culturally and linguistically diverse communities, and First Nations peoples, as well as people with impaired decision-making capacity. This support should address potential language and cultural barriers.

31. Clarify who is responsible for covering costs relating to the involvement of professionals in access and independent assessment processes. This includes when additional information is requested from an applicant’s treating health professional, and when health professionals are required to attend an assessment.

32. Encourage the involvement of a person’s treating health professionals in independent assessment processes for access, planning and plan review.

Term of Reference (g): The implications of independent assessments for NDIS planning, including decisions related to funding reasonable and necessary supports

Determining the amount of funding in the budget

Once a person has been found eligible for the NDIS, information from their independent assessment will be used to develop a personalised budget. This will include both fixed and flexible components. For most participants, the majority of their funds will be flexible, meaning the person will have discretion over the NDIS supports purchased using these funds. Budget flexibility will increase participant choice and control and will enable the person to respond to short term changes in circumstances. However, the Queensland Government notes some stakeholders are concerned the NDIA has not provided enough detail about how the results of an independent assessment will be translated into the amount of funding in a personalised budget (noting such detail as has been provided available in Planning policy for personalised budgets, pages 12-13).

The NDIA has identified that particular supports will be fixed in a personalised budget, with the funds specified for these supports unable to be moved to the flexible budget to purchase other NDIS supports. The supports proposed by the NDIA to remain fixed include: Specialist Disability Accommodation; high-cost or complex assistive technology; home modifications; extensive behavioural supports; and disability related health supports for managing life threatening risks (Planning policy for personalised budgets, page 20).

NDIS participants will be required to provide evidence to support the determination of funding for fixed budget items (Planning policy for personalised budgets, page 14) to be included in their personalised budget. It is not clear whether the person would be required to pay costs involved in gathering this required evidence, such as occupational therapy assessments.

The NDIA indicates participants will be supported to ensure their plan funding is not eroded through the person being charged for supports better provided by mainstream service systems (Planning policy for personalised budgets, page 11). The Queensland Government considers it essential that this guidance to participants aligns with the Applied Principles and Tables of Services, to ensure participants are able to access the maximum amount of reasonable and necessary supports intended to be provided through the NDIS. In this regard, the Queensland Government notes the Tune Review recommended governments work together to provide greater clarity on how it is determined which supports are considered reasonable and necessary (Tune Review, recommendation 4a, page 49), and considers this work should be expedited.

Linkage between individual goals and the personalised budget

The Queensland Government notes stakeholders are concerned budgets based on independent assessments will not reflect participants’ personal goals. The Queensland Government acknowledges the NDIA has indicated that planning meetings will consider participants’ goals, and will focus on how participants can use the funding in their plan to

pursue their goals (Planning policy for personalised budgets, page 18). However, it is not clear how a person’s goals will be reflected in their budget, noting people with similar levels of function may have very different personal goals and that those goals may change over time. In addition, the Queensland Government is concerned a key focus of planning meetings will be settling the participant’s proposed budget, rather than articulating their goals and ensuring their plan includes the supports required to help pursue those goals. Inadequate consideration of participants’ goals in determining budgets may result in participants having insufficient funded supports in their plans, and will not promote the NDIS principles of maximising choice and control, enabling capacity building, and supporting social and economic participation.

Insufficient funding in plans may also lead to unnecessary plan reviews, and to avoidable hospital admissions due to providers withdrawing supports and an absence of other support options. If independent assessments are not prioritised for people who are in hospital due to service withdrawal, this will compound the adverse impacts (noted above) associated with delays to hospital discharge arising from the 90-day timeframe for completing independent assessments.

The Queensland Government understands personalised budgets will be divided into flexible and fixed categories only, and that the previous categories of core, capacity building and capital will no longer apply. Queensland stakeholders are concerned this change could reduce focus in the planning process on how a person could use their budget to build their capacity. Further, participants may use the flexibility in their personalised budgets to maximise their access to what are currently understood as core supports, at the expense of accessing capacity building supports. This could have a long term detrimental impact on some participants, by emphasising the use of supports as a means of maintaining their current functional capacity (for example, by remaining mobile), and by inadequate focus on the use of supports as a means of improving their functional capacity (for example, by improving range of mobility).

Risks of independent assessments reducing funding in personalised budgets

The NDIA states that, where there has been no change in a participant’s functional capacity, an independent assessment would generally not result in a change to their personalised budget (Planning policy for personalised budgets, page 24). While the Queensland Government accepts this will mean periodic independent assessments may have limited impacts for many participants, there will be some participants for whom the outcomes of an independent assessment suggest a significant change to their functional capacity and consequently to the level of funding available in their current plan. The Queensland Government acknowledges the NDIA’s stated intention that, where this occurs, arrangements will be made to avoid a sudden and significant change in the supports available to the affected participant under their budget (Planning policy for personalised budgets, page 25). The Queensland Government nevertheless considers that, given the significant consequences that a reduction in available funding can have for a participant, it is essential that any proposed funding reduction is supported by a thorough risk assessment and development of risk management strategies in partnership with the participant and their support network. It is important that clear reasons for the reduction in budget be provided to the person.

These consequences could include an increased risk of recidivism and reimprisonment for participants transitioning out of corrective services facilities without adequate supports. They could also include the loss of supports essential to a person’s economic and social participation. Two categories of supports which are particularly vulnerable to the adverse potential impacts of a reduction in a participant’s funding are housing and transport, both of which are vital to participant wellbeing and economic and social participation.

In relation to housing, the Queensland Government notes people with disability living in mainstream housing or Specialist Disability Accommodation (SDA) may be reliant on funded disability supports to maintain and sustain their tenancies. Accordingly, the Queensland Government considers safeguards should be in place to ensure any reduction of funding in a participant’s NDIS plan does not compromise their housing security.

In relation to transport, the Queensland Government notes transport is a key enabler in many individuals’ broader social and economic participation. It is therefore important to ensure a participant’s budget is sufficient to meet their transport supports, and that transport needs are accurately reflected in how the plan budget is calculated. The Queensland Government notes that transport needs depend not only on a person’s functional capacity, but also on factors such as where they live, distance and frequency of travel required for social, economic and community participation, and the availability of transport options.

Impacts on plan reviews

The Queensland Government notes that participants may be required to undergo independent assessments to inform plan reviews. The NDIA indicates that, if a participant refuses to attend an independent assessment and none of the proposed exemptions apply, the NDIA delegate may: request that another person provide the information required to review the participant’s plan and the reasonable and necessary level of funding in it; and not make a decision on a new plan until an independent assessment is undertaken (Planning policy for personalised budgets, page 26).

The Queensland Government considers it vital that these powers are not exercised in a way which causes vulnerable people to become unsafe. For example, it would be unacceptable for the delegate to elect not to make a decision on a new plan until an assessment had been undertaken if that led to the risk of the person being left without critical supports due to the funding in their plan running out. It would be equally inappropriate if the delegate’s decision to delay a decision on a new plan resulted in a person being forced to remain in an unsafe living arrangement (such as where they had experienced, or are at risk of experiencing, harm or neglect).

The Queensland Government notes participants will be required to undertake plan reviews where there is a significant change in their functional capacity or a significant change in circumstances, and at least every five years. Queensland stakeholders are concerned that, for people whose support needs are stable, this requirement to periodically undertake unnecessary assessment may create anxiety and be a burden on their time and resources.

The Queensland Government also understands that entry to prison would be considered a significant change in circumstances that would trigger a plan review. In some cases (such as where a participant serves repeated short sentences), it may be resource intensive or unnecessarily onerous for people in custody to undertake an independent assessment at each return to prison. In the case of incarceration, there needs to be a mechanism to quickly determine whether an independent assessment is required.

It is unclear whether a participant will be required to provide evidence of permanence of disability at plan reviews and, if so, whether the cost of this will be borne by the NDIA as part of the independent assessment or by the participant. Requiring that this evidence be provided at every plan review, and particularly for participants whose supports needs are stable, will create an unnecessary burden for participants and impost on health professionals.

Recommendations:

The Queensland Government recommends that:

33. Recommendation 4 of the Tune Review (that Governments and the NDIS provide more clarity around the definition of ‘reasonable and necessary’) (Tune Review, page 49), should be urgently actioned by the Commonwealth, in collaboration with the States and Territories, to reassure the disability sector that this underlying principle will not be negatively impacted by independent assessments and associated personalised budget processes.

The NDIA should:

34. Provide details about how independent assessment tools, other information collected at the time of the independent assessment, and any additional information requested by the delegate (Planning policy for personalised budgets, page 18), will be translated into a personalised budget, including processes for determining fixed budget items and transport funding.

35. Clarify how participants will continue to be supported to achieve their personal goals in alignment with the NDIS principles of choice and control, capacity building, and social and economic participation.

36. Clarify what communication strategy will be used to provide clear reasons for any reduction in a person’s plan funding, and clarify what will occur if a person’s goals cannot be achieved within a personalised budget based on the independent assessment.

37. Clarify how situations of provider withdrawal, and delays to hospital discharge, will be addressed through planning processes based on independent assessments.

38. Provide details about how affected participants will be supported to gradually move to significantly lower levels of funding, including safeguards to ensure that reductions do not result in negative outcomes such as loss of housing tenancy, insufficient access to transport, or physical or mental health issues.

39. Identify safeguards for vulnerable people who disengage from independent assessment processes in the context of plan reviews, to ensure participants are not left without critical supports or forced to remain in unsuitable living arrangements.

40. Identify and communicate the circumstances in which an independent assessment is not needed for a plan review, for example where a participant’s support needs are stable.

41. Identify and communicate whether diagnostic information to confirm permanence of disability would need to be updated for plan reviews and, if so, how the cost of obtaining this update would be met.

42. Provide a mechanism to quickly determine whether an independent assessment is required as part of the plan review process which has been triggered when there is a significant change in circumstances, such as incarceration.

Term of Reference: (h) The circumstances in which a person may not be required to complete an independent assessment

The NDIA is proposing that a delegate may decide that an applicant does not need to complete an independent assessment where:

• Risk and safety – the process is likely to do more harm than benefit to the individual, and may pose a safety risk to the individual or assessor, and

• Assessment is inaccessible or invalid – there are concerns about whether the process would produce valid information, and other sources and/or forms of information are better suited for generating a valid assessment (Access and eligibility policy for independent assessments, page 21).

The Queensland Government notes that, where an exemption has been granted, alternate evidence of functional capacity equivalent to that generated by an independent assessment must be provided. However, it is unclear whether the NDIA will meet the costs of providing this required evidence.

Queensland stakeholders are concerned that the NDIA’s proposed principles-based approach to granting exemptions is unclear, is not reviewable, and does not sufficiently recognise the position of vulnerable cohorts. These include people with behaviours of concern, children and young people in the child protection or youth justice system, adults in contact with the criminal justice system, people with psychosocial disability, people from culturally and linguistically diverse backgrounds, First Nations peoples, and people with impaired decision-making capacity. Access to the NDIS is already challenging for these cohorts, and the risk of disengagement may be further heightened due to the need to deal with an unknown professional in the person of the independent assessor. The Queensland Government considers members of these cohorts may require additional support, including access to interpreters, at this early stage to ensure they are aware of the process and criteria for seeking an exemption, and the options for providing evidence in another way that demonstrates substantially reduced functional capacity to the standard required under the Independent Assessment Framework.

The Queensland Government considers exemptions should also be available for all hospital patients in the Priority Hospital Discharge Pathway cohort. The Priority Hospital Discharge Pathway refers to the fast-tracked approach to access, planning and plan activation used for participants (both new and those with significant change in function) where a plan is required for discharge from hospital. These are generally people with complex new disability, each of whom requires multiple assessments to establish their assistive technology, home modifications and significant in-home support requirements. These existing assessments, which are completed by hospital teams, already provide a comprehensive body of evidence about the person’s functional capacity, and should suffice for access and initial planning purposes for this cohort. The Queensland Government therefore does not consider an independent assessment would add value, but rather would cause unnecessary delay.

Additionally, sufficient evidence of functional capacity is already generated for many people through their interactions with other service systems, such as the child protection, health, aged care and youth justice systems. Requiring these people to go through a further assessment process may be redundant. Making exemptions available for these cohorts would reduce the burden on these people and their families, and has the potential to save the NDIS costs and free the capacity of the independent assessors to deliver timely assessments to other cohorts, especially new entrants. One way of achieving this would be for the NDIA to obtain advice from case managers from relevant state or territory service systems regarding whether a person’s functional capacity is stable.

In the case of a person found to have impaired decision-making capacity in Queensland, that person’s decision-making capacity must be assessed before a guardian or administrator may be appointed by the Queensland Civil and Administrative Tribunal (QCAT) and/or any other declaration of capacity may be made by QCAT or the Supreme Court. A finding by QCAT or the Supreme Court in relation to the person’s decision-making capacity (and any evidence or medical reports relied on by QCAT or the Supreme Court) may be relevant to assessing the person’s broader functional capacity for the purpose of access and planning decisions under

the NDIS. Where a person with impaired decision-making capacity is not deemed eligible for an exemption, the Queensland Government considers any relevant findings of a court or tribunal in relation to that person’s capacity should be required to be taken into account as part of the independent assessment process.

The NDIA is proposing to investigate how the independent assessment process could apply to children under 7 years of age. This cohort would include children with a newly acquired disability who have never lived in the community with the disability. The Queensland Government considers independent assessments may be unsuitable for children and young people in these situations, and extremely distressing for families who are already undergoing significant change in their lives.

Recommendations:

The NDIA should:

43. Provide clear information about the circumstances in which exemptions will be available and the criteria to be used in deciding to grant exemptions.

44. Ensure vulnerable cohorts receive support to make a request for exemption, including support from interpreters where required.

45. Provide clear information about the options for providing evidence in another way that demonstrates substantially reduced functional capacity against the Independent Assessment Framework, including how the costs of providing alternative evidence will be met.

46. Make exemptions available to the following cohorts, on the basis that alternative assessments and evidence that demonstrates substantially reduced functional capacity against the Independent Assessment Framework can be provided:

• children and young people in the child protection or youth justice system
• children and young people with newly acquired disability
• people exiting hospital and health settings, including mental health and forensic facilities/services, for whom clinicians provide a functional profile as part of the discharge and transition to home process
• all people who meet Priority Hospital Discharge eligibility, and
• other people for whom sufficient evidence of functional capacity is generated through their interaction with another service system.

47. Without limiting the above, an exemption should be routinely available for the cohorts listed in recommendation 46 above when a case manager from a relevant state or territory agency advises that the person’s functional capacity has remained stable since the previous assessment or planning/review meeting.

48. Where a person’s decision-making capacity has been assessed by a court or tribunal— require that any relevant findings of that court or tribunal in relation to the person’s capacity must be taken into account as part of the independent assessment process.

Term of Reference: (i) Opportunities to review or challenge the outcomes of independent assessments

The Tune Review highlighted the critical importance of embedding protections into the independent assessment process. Protections recommended by the Tune Review include that participants should have the right to challenge the results of their functional capacity assessment, including the right to undertake a second assessment or seek some form of abritration, if, for whatever reason, they are unsatisfied with an assessment (Tune Review, page 66).

While the Queensland Government acknowledges that NDIA decisions based on an independent assessment will be reviewable, the assessment itself will not be. Further, a person dissatisfied with an independent assessment may only request that another assessment be undertaken on the limited grounds that the original assessment was not consistent with the Independent Assessment Framework or there has been significant change in the applicant’s/participant’s functional capacity or circumstances (Access and eligibility policy for independent assessments, page 23). These limitations on the ability to challenge the outcomes of independent assessments represent a significant departure from the safeguards recommended by the Tune Review.

Further, the Queensland Government understands a decision by the NDIA not to grant an exemption will not be reviewable. The Queensland Government considers this is also inconsistent with the intent of the Tune Review to ensure people with disability are protected in relation to decision making as part of the independent assessment process.

In a further departure from the Tune Review, the Queensland Government notes that people will not receive a copy of their independent assessment, but rather will only receive a summary (Access and eligibility policy for independent assessments, page 22). Similarly, while the Queensland Government understands there will be a complaints process for people who are dissatisfied with their independent assessment, assessor, or assessment provider, information about the process is not yet available.

It is imperative that any model of independent assessments is aligned with the Tune Review recommendations. This model would differ from the NDIA’s proposal in a number of significant respects, including that it would:

• enable people with disability to challenge the results of an independent assessment, and not just the NDIA decisions based on the assessment
• provide clear information on how to make a complaint, demonstrate the original assessment was not in line with the independent assessment process, and request another assessment, and
• provide clear information on what happens if the Administrative Appeals Tribunal overturns an access decision based on an independent assessment, including whether another independent assessment would be required.

Recommendations:

The NDIA should:

49. Ensure applicants have access to what was recorded as part of the independent assessment (including a copy of the complete assessment report, not just a summary) to enable them to properly consider the conclusions reached by independent

assessors, and to better understand the reliance placed on those conclusions in later decisions.

50. Provide more details about the independent assessment framework and what supports will be provided to a person seeking to complain about an independent assessment.

Queensland further recommends that:

51. Consistent with the Tune Review, people with disability should be able to:

• request another assessment if, for whatever reason, they are dissatisfied with the outcome, or
• apply for review of the results of an independent assessment.

52. The NDIA’s decision not to grant an exemption should be a reviewable decision.

Term of Reference: (j) The appropriateness of independent assessments for particular cohorts of people with disability, including Aboriginal and Torres Strait Islander peoples, people from regional, rural and remote areas, and people from culturally and linguistically diverse backgrounds

The Queensland Government acknowledges that the NDIA has developed the following strategies to ensure all Australians can participate socially and economically by accessing supports through the NDIS:

• Cultural and Linguistic Diversity Strategy
• Rural and Remote Strategy
• Aboriginal and Torres Strait Islander Strategy, and
• LGBTIQA+ Strategy.

However, the Queensland Government considers it is not clear how these strategies have informed the development of the independent assessment process. While it acknowledges that cultural and language barriers generally may exacerbate delays in accessing assessments through the public or private health system, the Independent Assessment Framework does not contain sufficient information in relation to how Aboriginal and Torres Strait Islander peoples or people from culturally and linguistically diverse backgrounds will be supported through the process. Nor does it express the need for assessments to be conducted in a culturally sensitive manner.

Aboriginal and Torres Strait Islander peoples

The Tune Review observes that, given different issues are present in urban, rural, remote and very remote Aboriginal and Torres Strait Islander communities, no single service delivery model will be culturally appropriate or effective at meeting the needs of Aboriginal peoples or Torres Strait Islander peoples (Tune Review, page 83). The Queensland Government considers this observation reinforces the importance of building an outreach and engagement model from the ground up, with local communities at the centre. The same approach applies to the introduction of independent assessments.

The Tune Review also notes Aboriginal Torres Strait Islander peoples may experience distrust of authorities, and that time is consequently needed to build trusting and collaborative relationships with communities (Tune Review, page 86). Requiring people to undertake an assessment with a stranger, subject to only limited exceptions, does not align with this important consideration highlighted by the Tune Review and increases the risk Aboriginal and Torres Strait Islander peoples will disengage from the assessment process.

Recommendations:

The NDIA should:

53. Undertake consultation and engagement with Aboriginal and Torres Strait Islander peoples in relation to independent assessments at a community level in order to properly reflect the diversity of issues.

54. Provide specific details about how navigation support, assessment processes and assessment tools will be adapted to be culturally appropriate in diverse Aboriginal and Torres Strait Islander community settings.

People from culturally and linguistically diverse backgrounds

The Tune Review further identified that people from culturally and linguistically diverse communities experience additional challenges accessing and navigating the NDIS, and that the investment of time is necessary to overcome distrust of authorities and build trusting and collaborative relationships (Tune Review, pages 85-86).

Limited availability of easily understood information in a person’s preferred language, medium and format can have a significant impact on their confidence to engage with NDIA processes.

It is important that the NDIA take sufficient time to deliver extensive and detailed consultations around the introduction of independent assessments, and to ensure the independent assessment process is culturally appropriate. Unless the design and implementation of the independent assessment process gives specific consideration to the needs of culturally and linguistically diverse people, there is a high risk culturally and linguistically diverse communities will disengage from the assessment process and be underrepresented in the NDIS.

Recommendations

The NDIS should:

55. Undertake consultation and engagement in relation to independent assessments at a community level with people from culturally and linguistically diverse backgrounds, to ensure culturally appropriate assessment tools and processes are developed.

56. Provide specific details about how navigation support, assessment processes and assessment tools will be adapted to be culturally appropriate in culturally and linguistically diverse communities.

57. Give specific consideration to how independent assessors will score people from culturally and linguistically diverse backgrounds on a standardised assessment if they, their support person, or interpreter do not understand the question or its context. This consideration should include Aboriginal people and Torres Strait Islander people whose first language is not English.

People from regional, rural and remote areas

The Tune Review also highlights a range of barriers to accessing the NDIS which are experienced by people in rural and remote communities. These include that knowledge of the NDIS remains limited in regional and remote communities (Tune Review, page 82), NDIA outreach and engagement strategies are not effectively embedded within rural and remote communities (page 82), and there is a lack of NDIS providers in rural and remote communities (page 122). Queensland notes the Tune Review recommendations include that the Thin Markets Project incorporate a framework for addressing thin market challenges in rural and remote areas (page 123), and that focus be given to enhancing the use of information technology and digital solutions for people who prefer to use these, including some people in rural and remote communities (page 55).

The Queensland Government considers it vital the second independent assessment pilot, which has a particular focus on reaching Aboriginal and Torres Strait Islander peoples, collaborate with the Thin Markets Project to identify factors to be considered in the rollout of independent assessments in rural and remote areas and Aboriginal and Torres Strait Islander discrete communities.

Recommendations:

58. Implementation of the recommendations in the above section, Aboriginal and Torres Strait Islander peoples, should include concurrent consideration of the overlapping issues related to living in rural and remote communities.

59. The Independent Assessment Pilot should work alongside the Thin Markets Project to consider issues and strategies for the rollout independent assessments in these locations.

School-leavers with disability

The Queensland Government considers school leavers with disability need specific and timely assistance to access the reasonable and necessary disability supports required to enable their successful transition from school to adult life, and to respond to changes in their life circumstances after they leave school.

Recommendations:

60. Independent assessments and NDIS planning for school-leavers need to give specific consideration to transition supports, post-school living arrangements, and social and economic/educational participation.

People in custody

Offenders are at a high risk of reoffending immediately after their release from custody. The Queensland Government considers this risk can be reduced if, on their release from custody, offenders with disability have an NDIS plan in place which includes the supports they need to live successfully and sustainably in the community. To this end, it is important that people with disability in custody access the NDIS and have plans in place prior to their release.

The Queensland Government considers the current NDIA-approved instruments of comprehensive functional assessment are not suited for use within correctional settings. Correctional settings are highly controlled environments involving a significant range of constraints on functioning, behaviour and decision-making for people in custody which are not necessarily replicated in the community. There is consequently a high risk the NDIA’s proposed independent assessment process will generate assessments which do not

accurately reflect the impact of the person’s disability in a community setting, and that plans will not contain the supports necessary to adequately support the person in the community.

There are assessments being developed, for example the Adaptive Functioning Assessment Tool, that have shown preliminary evidence of validity in assessing functional ability while the person being assessed is in custody.

Nearly all forms of disability are more common amongst people in custody than the general population, and Aboriginal and Torres Strait Islander people in custody (who are overrepresented among custodial populations) are more likely than other people in custody to experience disability. Many people in custody do not have the capacity to independently engage and actively participate with NDIS processes, which can be complex. There is a risk that people in custody will disengage or fail to participate in independent assessments, which would restrict their access to the NDIS. Flexibility in timeframes and the ability to apply for an exemption from the independent assessment process may be necessary to accommodate the unique needs and vulnerabilities of this cohort.

The Queensland Government also notes that the NDIA will need to consider a range of operational and logistical issues that will apply to implementation of independent assessments in correctional facilities. For instance, independent assessors will need to go through screening processes to enter corrective services facilities, which may include a criminal history check. This will apply to both in-person and virtual assessments. Also, people in custody have limited access to the internet, phones and videoconferencing facilities, which adversely impacts their ability to engage with the independent assessment process and the NDIA more broadly.

Recommendations:

The NDIA should:

61. Consider the use of alternative tools in the independent assessments process, such as the Adaptive Functioning Assessment Tool, to measure the functional capacity of people in custody.

62. Ensure that adults in correctional facilities are given equitable support and opportunity to access the NDIS. For example, by providing maximal flexibility (such as flexible timeframes and administrative requirements for NDIS access, assessment, initial planning, and plan review processes), and ensuring assessors are able to adapt to complex, changing and challenging situations in organising and conducting planning sessions.

63. Ensure that independent assessors are culturally competent and skilled in trauma informed practice.

64. Ensure that adults in correctional facilities who are at high risk of disengaging from independent assessments can either receive exemptions from independent assessments, or are supported to receive reasonable and necessary supports so they are not disadvantaged while efforts are made to complete their independent assessment.

65. Ensure sufficient processes are in place to respond to sudden changes in circumstances for people in contact with the adult corrective services system.

Children and young people

The Queensland Government is concerned about the approach to independent assessments for children and young people within various contexts. It is important that independent

assessments observe a child receiving education and/or care within a child-care service setting, to ensure plans contain adequate supports. The Queensland Government is concerned there will be barriers and challenges around conducting assessments in child-care and educational settings, such as issues around credentialing requirements for on-site access. There are further complications for children and young people in child protection or youth justice systems (see further discussion below).

Recommendations:

The NDIA should:

66. Undertake further work to clarify the approach to independent assessments for children and young people within various contexts, depending on the circumstances of the individual being assessed.

Child protection and youth justice cohorts

Young people in contact with the child protection system and/or the youth justice system experience a range of disadvantages, including those associated with the deleterious impacts of childhood trauma. The independent assessment process must take these particular disadvantages into account when dealing with children with disability in contact with the child protection and youth justice systems, as well as the environmental and personal context of children within those systems. It should also be cognizant of the overrepresentation of Aboriginal and Torres Strait Islander young people among these vulnerable cohorts.

For example, young people in youth justice settings experience a range of disadvantages which may result in them missing appointments and being difficult to contact. These disadvantages include limited access to computers and other communications technology, literacy and/or language difficulties, and having less supportive and engaged caregivers. Further, a majority of the youth justice cohort do not have the capacity to actively participate in NDIS processes and are reliant on guardians. Many members of the cohort may also cycle frequently in and out of custody (a young person’s average stay in custodial environment is less than 30 days), affecting their ability to maintain routines and honour appointments.

Young people without supportive primary caregivers have difficulty accurately completing self- rating scales, as they often overrate their abilities due to not being aware of the appropriate skills for their age. Evidence from cognitive testing and communication assessments indicates that young people in this position may have limited insights and express ambiguity in relation to their own abilities.

The Queensland Government further considers there is high risk that children and young people in the child protection and youth justice systems will refuse to attend and/or engage in independent assessments. Exemption from the independent assessment process would assist these young people. However, as noted above, it is not clear that the proposed approach to exemptions will adequately account for the inherent vulnerability of these cohorts. The Queensland Government therefore considers that maximal flexibility of timeframes should be allowed for these cohorts to ensure these already vulnerable children and young people are not further disadvantaged by not receiving NDIS access and supports.

The Queensland Government notes that, in an emergency, the NDIA delegate can add funds to a person’s plan without requiring an independent assessment (Planning policy for personalised budgets, page 22). Young people in the youth justice system may often experience such emergencies, due to their vulnerability to sudden homelessness or rapidly deteriorating psychosocial health. The Queensland Government submits that the NDIA delegates emergency powers are therefore highly relevant to this cohort.

As noted above, the NDIA is proposing to use the results of independent assessments to inform personalised budgets. This will provide increased flexibility to participants, with not every support having a fixed funding amount in a participant’s plan (apart from specific supports such as SDA, which will continue to have a fixed budget). While increased flexibility will provide participants with greater choice and control over how they use their funds for any type of disability-related supports (Planning policy for personalised budgets, pages 10-12 and 18), the Queensland Government notes stakeholders hold a range of concerns.

These include the risk that, for some vulnerable participants, flexible budgets may result in choices with negative long-term impacts being made. For example, young people, particularly those in the child protection and youth justice systems and those without supportive primary caregivers, are less likely to have the capacity to actively participate in NDIS planning processes and are likely to understate their support needs. Developing a budget directly with a young person in this position may result in poor planning and budget decisions, with budgets that are inadequate to meet their actual support needs and not in accordance with clinical advice. To address risks associated with young people understating their support needs and using their flexible budget in a way that conflicts with professional or clinical advice, the Queensland Government considers the NDIA should allow scope for some therapy supports to be included as fixed budget items for these cohorts.

The Queensland Government further notes people with disability are disproportionality impacted by trauma, and people accessing human services are more likely to have experienced a greater number of adverse and traumatic life experiences. This is particularly relevant for young people in the child protection and youth justice systems. For this cohort, it is critical that independent assessments, and NDIS access and planning processes more broadly, are informed by best practice trauma-informed care to prevent re-traumatisation.

Recommendations:

The NDIA should:

67. Consider which functional assessment tools are most appropriate and/or how
  independent assessments could be modified in child safety and youth justice settings
    to address the disadvantages identified above, noting particularly that Aboriginal and
   Torres Strait Islander children and young people are overrepresented among these
   vulnerable cohorts.

68. Ensure that children and young people involved in the child protection and/or youth
    justice systems are given every possible support and opportunity to access the NDIS.
  For example, by providing maximal flexibility (such as flexible timeframes and
   administrative requirements for NDIS access, assessment, initial planning, and plan
   review processes), and ensuring assessors are able to adapt to complex, changing
  and challenging situations in organising and conducting planning sessions.

69. Ensure all relevant stakeholders are able to attend the independent assessment and
   planning meetings to support a child in the child safety or youth justice system,
   including family, carers, child safety staff, youth justice staff, cultural supports.

70. To prevent re-traumatisation and promote recovery from trauma, ensure:

       - independent assessment tools are culturally appropriate and trauma informed,
        and

       - independent assessors are culturally competent and skilled in trauma informed
            practice.

                                                       Page 39 of 47

71. In decision-making relating to personalised budgets for young people in the child protection or youth justice system, consider the child’s environment and personal context, such as the limited availability of informal supports and potential instability of living arrangements, to ensure flexible budgets are not used in ways that do not align with clinical advice.

72. Ensure that children and young people in the child protection and youth justice systems who are at high risk of disengaging from independent assessments can either receive exemptions from independent assessments, or are supported to receive reasonable and necessary supports so they are not disadvantaged while efforts are made to complete their independent assessment.

73. Ensure sufficient processes are in place to respond to frequent and sudden changes in circumstances for young people in contact with the youth justice system.

74. Ensure flexible budgets balance choice and control with informed decision making. For example, for young people, therapist recommendations need to be considered and some therapy supports should be included in plans as fixed budget items.

People experiencing domestic and family violence

The Queensland Government notes that people with disability experiencing domestic, family and sexual violence face significant challenges to accessing disability supports, and often have limited choice and control over decisions that affect their lives. Perpetrators of violence against people with disability can prevent access to formal supports as a means of control. The Queensland Government considers an increased safety risk for a person experiencing violence may result from an independent assessor visiting the person’s home or spending time with a person assessing their support needs. People with disability experiencing violence may also refuse to attend and/or engage in independent assessments due to fear or not being allowed to engage.

The Queensland Government further considers that flexibility to gather evidence from existing health providers and from specialist domestic and family violence services, and extended timeframes for completing assessments, should be considered. Assessors being able to plan in conjunction with other critical services is critical to ensuring safety.

In addition, the NDIA delegate’s ability to add funds to a person’s plan in an emergency without the need for an independent assessment is an important provision for people experiencing domestic, family and sexual violence, who may experience a loss of daily living supports as they flee the situation or a perpetrator is removed.

Recommendations:

The NDIA should:

75. Ensure a flexible approach to accessing the NDIS, independent assessment and
   planning is available to people experiencing domestic, family and sexual violence.

76. Ensure that people experiencing violence who are at high risk of disengaging from, or
   are prevented from engaging with, independent assessments can either receive
  exemptions from independent assessments, or are supported to receive reasonable
  and necessary supports so they are not disadvantaged while efforts are made to
  complete their independent assessment, with the support of specialist services where
   appropriate.

                                                       Page 40 of 47

Term of Reference: (k) The appropriateness of independent assessments for people with particular disability types, including psychosocial disability

The Queensland Government notes the NDIA’s second independent assessment pilot is being conducted on a voluntary basis. Queensland stakeholders have flagged the risk that the pilot may consequently not capture information about some vulnerable cohorts and people with disability, who may decline to participate in a voluntary pilot. This includes where the person with disability lacks insight into their disability and functional capacity, does not have an informal or professional support network, or does not have cultural navigation support and is not comfortable with the assessor. This may result in the pilot not producing sufficient evidence of the appropriateness of independent assessments for people with different types of disabilities, such as people with psychosocial disability.

People with psychosocial disability

The Queensland Government notes access rates for people with psychosocial disability are already low. The introduction of mandatory independent assessments could further exacerbate low access rates for this cohort. Therefore, it is important to ensure people with psychosocial disability are given every opportunity to access the NDIS by ensuring independent assessment processes are as flexible as possible.

Many people with psychosocial disability have histories of mandatory treatment and involuntary hospitalisation, or experiences with assessments delivered by unknown professionals that have resulted in loss of freedom or self-determination. Given this context, independent assessments have the potential to be a highly stressful, even traumatic, experience for this cohort, who may consequently withdraw from the process. Also, people with psychosocial disability may not have a support network able to organise their independent assessment, or to liaise with an organisation to arrange this, resulting in even less access to the NDIS for this already under-represented group. Barriers to access can be exacerbated by cultural and language barriers.

Given these issues, it is important that people with psychosocial disability are supported to engage with the process. However, the Queensland Government notes the NDIA proposes that, unless granted an exemption by a delegate, an applicant who chooses not to complete an independent assessment will be considered by the NDIA to have withdrawn their access request. ([Access and eligibility policy for independent assessments](Access and eligibility policy for independent assessments), page 21). As noted above, deeming an access request to have been withdrawn is a serious consequence with the potential to significantly exacerbate access issues, inequities and other disadvantages already experienced by vulnerable cohorts such as people with psychosocial disability.

This applies equally for people who cannot complete an independent assessment because they are under a legal disability due to their impaired decision-making capacity. Any mandatory requirement to undertake an assessment within a specified timeframe must take into consideration adults who cannot meet the statutory requirements within the specified timeframes because they are under a legal disability, and must provide alternative pathways to access the scheme.

The Queensland Government is concerned that the independent assessment process appears particularly adapted for people who have insight into their disability and the supports they require. Consequently, the case studies provided by the NDIA in the consultation papers ([Access and eligibility policy for independent assessments](Access and eligibility policy for independent assessments), pages 14-15 and 17, and [Planning policy for personalised budgets](Planning policy for personalised budgets), pages 15-16) do not fully demonstrate the complexities of

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people with psychosocial disability accessing the NDIS. These complexities can include an unwillingness to engage in the independent assessment due to paranoid or suspicious thoughts, inability to communicate effectively due to symptoms of disability, inability to concentrate long enough to undertake an independent assessment, or inability to understand the assessment tools but embarrassment about communicating this to the assessor. It is not clear how the NDIA intends to manage these complexities through the independent assessment process.

Queensland stakeholders have also expressed significant concerns about how short assessments will be for people with psychosocial disability. An independent assessment over the three hours anticipated by the NDIA may not be accurate, particularly when compared with an assessment undertaken by a mental health service with knowledge of the person over an extended period of time. For this reason, the Queensland Government considers an exemption should be available where the person has undergone a more extended assessment by their treating allied health professional. If an exemption is not granted, the independent assessment process should be broken up over multiple sessions, noting that the capacity of a person with severe and complex mental illness to participate in a three-hour interview is very limited.

Assessment tools: The Queensland Government notes the NDIA considers the proposed suite of assessment tools takes into consideration the episodic nature of some disabilities, including psychosocial disabilities. In particular, the NDIA notes there is strong evidence for the effectiveness of the WHODAS tool in assessing function regardless of diagnosis, including evidence from extensive trials and evaluation of use for people with long term mental health conditions in the Australian context ([Access and eligibility policy for independent assessments](Access and eligibility policy for independent assessments), page 16).

However, the Queensland Government notes neither the Vineland-3 nor CHIEF is validated for psychosocial disability. Further, the WHODAS-2 has limitations (for example, it does not comprehensively assess functional capacity for self-care because it does not assess the capacity or barriers to consistently: wash; get dressed; plan, organise and prepare a meal; manage medication; or implement daily routine). The WHODAS-2 only considers the past 30 days, which the Queensland Government considers is not sufficient to capture the fluctuating capacity experienced by many people with psychosocial disability. In addition, the WHODAS- 2 does not consider capacity for work and study if the person is not currently engaged in these activities, and so does not provide insight into the person with psychosocial disability’s capacity for economic participation.

The Queensland Government notes the Vineland-3 is fully rated by a carer or support person, not the NDIS applicant or participant. It is unclear what the alternative process will be if person does not have a carer or support available to complete this assessment. Inclusion of Vineland- 3 could cause distress to people with psychosocial disability who may have complex relationships with their family and carers (for example, family violence situations).

The CHIEF includes the person with disability and carer/support person scoring, and it is unclear what the alternative process to gather environmental information will be if person does not have the capacity to respond to the CHIEF.

Expert Queensland clinicians have assessed the proposed tools for relevance for people with psychosocial disability and concluded that, for adults and young people over 7 years of age:

- these tools focus on  activity impairments, which are not necessarily the main
   impairments in psychosocial disability

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• the proposed independent assessment process involving an unfamiliar tester and short assessment time, and being based on self-reporting, is not conducive to accurate assessments of people with psychosocial disability

  • these tools require a good source of collateral information from someone with working knowledge of the person, and

  • these tools require very careful training and interpretation, but assessments are often undertaken by people with limited training and limited experience in psychosocial disability and the unique complexities and barriers specific to a mental health context.

The Queensland Government is concerned that these identified issues may, if not addressed, result in plans and budgets that do not address the support needs of people with psychosocial disability. This could result in increased reliance on the acute mental health system, unnecessary, costly and distressing hospitalisations or crisis service engagement, reduced capacity for social and economic participation, and difficulty with personal care and daily living.

The Queensland Government therefore recommends that the NDIA give consideration to adopting an alternative approach to that proposed, under which a clear picture of individual capacity is developed by using skilled mental health professionals familiar to the person as part of the assessment process. This approach would improve the accuracy of assessments for people with psychosocial disability, by minimising and offsetting the risk of non- standardised assessment tools through clinical reasoning and triangulation of information sources to build a clear picture of individual capacity.

Safeguards: The safeguards which the Tune Review recommended be embedded into the independent assessment process will be particularly important for people with psychosocial disability. As noted above, in response to terms of reference (i) Opportunities to review or challenge the outcomes of independent assessments, these safeguards include that participants should have the right to challenge the results of a functional capacity assessment, and to undertake a second assessment or seek some form of arbitration if, for whatever reason, they are unsatisfied with the assessment ([Tune Review](Tune Review), page 66). However, as further noted above, independent assessments as proposed by the NDIA will not be reviewable, and a second assessment will only be available in very limited circumstances ([Access and eligibility policy for independent assessments](Access and eligibility policy for independent assessments), page 23).

A further important recommended safeguard is that people are provided with sufficient information relating to the results of their independent assessment. For people with psychosocial disability, this information should be provided in a way that minimises risks relating to disengagement and trauma from the process. People with psychosocial disability who lack insight into their disability should be provided with an explanation for their independent assessment results so they can be understood within the context of the NDIS. Again, as noted in recommendation 51 above in relation to findings of the Tune Review, it is important that people with psychosocial disability have opportunities to review or challenge the outcomes of independent assessment. The Queensland Government is not confident this safeguard is adequately reflected in the NDIA’s proposed approach, under which people will only receive a summary of their independent assessment.

In order to achieve an accurate assessment for people with psychosocial disability, whose disability may be episodic and fluctuating in nature, it is important to understand the person’s functioning over a longer period of time than can be accounted for over a three-hour assessment. Barriers to properly assessing a person’s functioning are further exacerbated when a person with psychosocial disability lacks insight about their disability, or they wish to present a more positive image, which means they are unlikely to self-report accurately. The

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Queensland Government considers the NDIA has not adequately identified how these issues will be addressed.

Further, the NDIA’s proposed independent assessment process does not seem to allow for the consideration of relevant collateral information to inform a long-term picture of the person with psychosocial disability being assessed. The Queensland Government considers there is a consequent risk of plan budgets being based on assessment of a person’s function during a discrete period, resulting in personal budgets which may not adequately provide for the person’s long-term support needs.

Impact on discharge/transition back into community: The Queensland Government considers there is still significant uncertainty regarding the NDIA’s proposed access and planning processes for people in hospitals, mental health facilities, correctional facilities and forensic settings. Without an adequate NDIS plan and budget in place, people with psychosocial disability in these settings will not be able to successfully transition back into the community in a timely manner.

The Queensland Government recommends that the NDIA clarify how independent assessments will be delivered to people in these settings, noting the significant potential infrastructural and operational barriers to the successful delivery of assessments, and the overrepresentation of Aboriginal and Torres Strait Islander peoples, in these controlled settings. As noted above, these barriers include issues around credentialing requirements for on-site access by independent assessors to hospitals and health services, and in-person and virtual visits to correctional facilities. In these situations, other barriers to note include staff availability to support the assessment process, and availability of an appropriate standardised environment for assessments to occur. Where sufficient access to a person in a particular setting is not possible, the Queensland Government recommends the NDIA provide more details about how NDIS access and planning will occur without on-site independent assessments.

The Queensland Government is further concerned about the potential barriers to the effective delivery of standardised assessment processes remotely. These barriers include confidentiality concerns associated with conducting these assessments by telephone. Additionally, people with psychosocial disability may refuse telephone assessments due to distrust of unknown callers or to the impact of their condition, including paranoia or delusions focused on the telephone. The Queensland Government recommends the NDIA provide further details about how these barriers will be addressed in the access and planning processes.

NDIS budgets: The Queensland Government is aware of stakeholder concerns that independent assessments may not capture the full impact of episodic conditions, leading to reduced personal budgets when plans are reviewed. If budgets are reduced for people with psychosocial disability, anxiety about reduced support and insufficient supports in plans could contribute to a relapse of acute mental illness.

People with psychosocial disability may require a staged plan to enable them to transition from a mental health facility to the community. The Queensland Government recommends the NDIA clarify how the independent assessment process will be able to generate a personal budget and plan which adequately address the required transition supports for a person with psychosocial disability. The Queensland Government considers the NDIA should also provide more information on how an independent assessment will inform the development of a personalised budget for a participant with psychosocial disability whose support needs (as captured in their discharge plan) are constantly changing over time due to the episodic or fluctuating nature of their needs.

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As already noted, Queensland stakeholders are concerned an assessment process conducted over a short period of time may not capture the impact of episodic conditions, or accurately reflect supports needed over a transitional period. In addition, there are concerns assessments conducted in controlled environments such as hospitals, mental health facilities or correctional facilities may not enable the assessor to gain an accurate picture of the person’s functional capacity in a community setting and may face delays due to operational and logistical barriers, resulting in delays to NDIS access.

When access decisions are made early, it means any assistive technology and core supports required for the person to leave hospital and participate in life in the community are in place prior to discharge. If the independent assessment process is delayed or does not generate plans which take account of transitional supports or fluctuating needs, this could result in people remaining unnecessarily in mental health or custodial settings, resulting in negative outcomes for participants and cost impacts for mainstream service systems.

Recommendations:

The NDIA should:

77. Implement measures to ensure people with psychosocial disability, or under a legal
    disability due to their impaired decision-making capacity, do not fall through the gaps
  between meeting the  initial  eligibility requirements and having an independent
  assessment. This is also relevant for other disability types and cohorts at risk of
  disengagement from the process.

78. Consider exempting people with psychosocial disability who are at high  risk of
  disengagement from the independent assessment process, and making alternative
  mechanisms for NDIS access and planning available to this cohort or otherwise
   ensuring they are supported to continue to receive reasonable and necessary supports
   while engaging in the independent assessment process.

79. Require the use, in the independent assessment process, of alternative, validated
  assessments tools for people with psychosocial disability after consultation with expert
    clinicians on the most suitable tools.

80. Ensure that independent assessors have experience in working with people with
   psychosocial disability, including those under forensic orders, and in identifying a
   person’s  ‘true’  function,  rather than the person’s  level  of  function  during  the
  assessment, in controlled settings.

81. Provide further details around how independent assessments will be undertaken when
  a person is in a hospital, mental health facility, correctional facility, or forensic setting,
   noting the overrepresentation of Aboriginal and Torres Strait Islander peoples in these
    settings.

82. Provide further details about how NDIS access and planning will occur with people in
   controlled settings where suitable on-site and remote access is not possible.

83. Ensure independent assessment outcomes will be accurate in situations where the
  person lacks insight, does not have a support network or does not have cultural
   navigation support.

84. Give consideration to adopting an alternative approach to the delivery of independent
  assessments in appropriate circumstances, under which a clear picture of individual
   capacity is developed by using collateral evidence provided by treating clinicians
    familiar to the person as part of the assessment process.

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85. Ensure independent assessment processes are as flexible as possible including flexible timeframes and administrative requirements for NDIS access, assessment, initial planning, and plan review processes, and ensure assessors are able to adapt to complex, changing and challenging situations when organising and conducting assessments

Term of Reference: (l) Any other related matters

Roles and responsibilities – interface and demand issues for mainstream

services

The Queensland Government notes the NDIA proposes to use independent assessments to determine if a person’s support needs are best provided by the NDIS or other mainstream systems of supports, such as the health system ([Access and eligibility policy for independent assessments](Access and eligibility policy for independent assessments), page 22). To this end, the NDIA consultation papers reference the Applied Principles and Tables of Services (APTOS), which outline the agreed responsibilities of the NDIS and mainstream service systems ([Planning policy for personalised budgets](Planning policy for personalised budgets), page 11; [Access and eligibility policy for independent assessments](Access and eligibility policy for independent assessments), page 9).

However, The Queensland Government considers it is unclear how the independent assessment process will support a determination as to whether a support is more appropriately provided by a mainstream service system or the NDIS. The Queensland Government notes there is already ongoing concern regarding the respective roles and responsibilities of the NDIS and mainstream services, particularly in relation to ongoing and chronic health conditions. The separation between chronic, acute or palliative health conditions, functional impact, and recognised disability is complex and not broadly understood. The Tune Review noted this confusion and recommended action to ameliorate it ([Tune Review](Tune Review), recommendation 1, page 38).

The further lack of role clarity associated with the introduction of independent assessments may lead to disagreements, particularly where the NDIS and health systems interpret the APTOS differently. This issue is further compounded by variations in mainstream services and supports across different jurisdictions. The Queensland Government understands this is already causing confusion for participants and NDIA staff. Independent assessors will need to be familiar with mainstream services and supports within their home jurisdiction, as well as variations in other states and territories. These issues could result in participants not receiving necessary supports due to disagreement as to which party should deliver them, or to inappropriate cost shifting to mainstream services and consequent reductions in the availability of services to the broader Queensland population.

While the Queensland Government is satisfied the current budget model incentivises participants to use their NDIS funding for the intended purposes, such as disability-related health supports to meet health needs directly arising from a person’s disability, the Queensland Government also recognises that greater flexibility introduced with personal budgets will increase choice and control and may increase utilisation of supports. However, the Queensland Government is concerned the proposed new flexible budget model also creates the risk of participants inappropriately relying on hospital and health services to provide their disability-related health supports, in order to utilise their NDIS funding to cover underfunding in other areas. This approach is not in line with the agreed responsibilities of the NDIS and other services as set out in the APTOS and further clarified and agreed by Disability Ministers in June 2019.

Due to the risk of unintended cost shift to mainstream services created by flexible budgets, the Queensland Government considers it is important that the NDIA builds the capacity of

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people with disability, their families and carers, to understand the agreed roles and responsibilities of the NDIS and mainstream services and to access supports from the appropriate system.

Recommendations:

The NDIA should:

86. Clarify how the independent assessment will determine if a person’s support needs
   are best provided by the NDIS or other mainstream service systems.

87. Demonstrate how the risk will be managed of flexible budgets being used in ways that
   inappropriately transfer responsibility for disability-related health supports back to
   hospitals and health services.

88. Provide easily accessible resources and supports to assist people with disability, their
    families and carers, and the general public, build their understanding of the different
   roles and responsibilities of the various service systems, and to assist members of the
   public and independent assessors understand variations in mainstream supports
   available across jurisdictions.

The Queensland Government further recommends that:

89. Work recommended by the Tune Review to clarify the treatment of chronic health
   conditions under the NDIS (recommendation 1) should be progressed urgently.

Thank you for the opportunity to provide a submission.

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