NDIA Accountability Project

Bill undermines original NDIS Objects and Principles

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Getting the

NDIS back on Track - Submission to the Senate Committee on the NDIS Bill #1

Index of contents

Page

  • Executive Summary 2
  • Background 3
  • A new definition of NDIS Supports 5
  • Functional Assessments, The “Assessment Tool”, And the role of Assessors 7
  • Planning and Access Pathways 8
  • Information required for “new framework” plans 10
  • Initial plans, funding periods and“ flexible budgets“ 11
  • Classes of Participants 12
  • Reasonable and Necessary 14
  • Compliance by Participants: Penalties (Robodebt 2?), and the powers of the CEO 16
  • Classes of supports, and specified service providers 18
  • Suspension of plans and cessation of supports 18
  • Flexible Budgets, Funding periods, and participant responsibilities 20
  • Plan management options and provider registration 21
  • Quality and Safeguards 23
  • Personal Statement 25
  • Resources 26

Executive Summary

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

This Bill undermines the original Objects and Principles of the 2013 NDIS Bill,

The which are set out in:

“Part 2, 4 General principles guiding actions under this Act:

(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development. (2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability. (3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. (4) People with disability should be supported to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. (5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports. (6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation. (7) People with disability have the same right as other members of Australian society to pursue any grievance. (8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise informed choice and engage as equal partners in decisions that will affect their lives, to the full extent of their capacity. (9) People with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs. (10) People with disability should have their privacy and dignity respected. (11) Reasonable and necessary supports for people with disability should: (a) support people with disability to pursue their goals and maximise their independence; and (b support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.“

As a result, this Bill is not fit for the original purpose of the NDIS, and should not be passed without significant amendment. People with a disability deserve a more nuanced and considered approach to the regulation and funding of disability services, one that retains choice and

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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some measure of control, while enhancing regulatory and other protections win the settings where it is most needed.

The NDIS review produced recommendations aimed at improving the safety of participants, upholding their rights, making processes more transparent, making funding more flexible, reducing opportunities for fraud in the system and improving monitoring of the quality of services. This Bill fails these aspirations on all criteria.

There has been no consultation with the impacted community, and feedback timelines established by the Government do not help participants and other disabled community members make their submissions.

This is a complex issue, and the Bill is badly drafted, in direct contravention of the purpose of the NDIS, inconsistent and confusing. The Minister must do better to design less “ableist” processes to get input from the very community that this bill affects. This submission period should be extended as a matter of urgency and fairness.

The following discussion examines the most problematic sections of the Bill, and proposes solutions, and amendments.

Fictional case studies have been provided to illustrate the potential outcomes for participants under the provisions of this Bill.

Background

The NDIS Review final report was published on 27 October 2023. The NDIS Bill “Getting the NDIS back on Track” was tabled on 27th of March for a first reading, in order to implement some of the recommendations of the Review by way of legislative change. The amendments are purported to support the implementation of NDIS Review recommendations to:

  • clarify the NDIS access requirements and the supports that the NDIS will provide a participant,
  • to create a new model for determining a reasonable and necessary budget,
  • and provide more flexibility on how the Commissioner can take regulatory actions to protect NDIS participants from abuse, harm and neglect.

Specifically:

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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  • provide a fairer and more consistent participant pathway (Recommendation 3)
  • provide better support for people with disability to make decisions about their lives (Recommendation 5)
  • create a continuum of support for children under 9 and their families (Recommendation 6)
  • set a new approach to NDIS supports for psychosocial disability (Recommendation 7)
  • strengthen the regulatory response (Recommendation 17).

There is some justifiable consternation and confusion amongst participants and service providers regarding the proposed changes, not the least of which concern the lack of detail in the documents provided as well as in the draft bill itself. These specific concerns exist because there is a clear conflict that exists between sustainability of the scheme and the choice and control of participants to design their best life using the supports that they choose, in the new legislation.

It should be noted that many participants have received excellent plans and outcomes due to the work of the NDIA and its staff. Providers have developed quality supports and delivered these to participants in accordance with their goals. The NDIS is the envy of the world in terms of what it delivers for participants, and this is despite the very difficult operating conditions that affect the NDIA .

These working conditions are due to insufficient investment by successive governments in the basic infrastructure of the agency, including workforce, which has hampered performance and delivered negative outcomes for some participants.

Quality of services and safeguards for participants have been inadequately funded, resulting in lower than ideal standards of service provision for some participants and some catastrophic outcomes for some people.

Safety and quality control will be reduced by this Bill if adequate resources are not devoted to increasing staffing and systems at the NDIA and at the NDSC. This bill does nothing to address that shortfall of investment which is urgently required to address poor systems and inadequate work force issues.

The NDIS needs reform, but not to the extent that it becomes unrecognisable in that it doesn’t adhere to the principles under which it was established in the first place.

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

A new definition of NDIS Supports

The new Bill changes the definition of what an NDIS support is, replacing the current definition with principles from the UNCRPD, in item 14(10), which raises several issues for participants.

“A support can only be an NDIS support if the support:

  • ·is necessary to support the person to live and be included in the community, and to prevent isolation or segregation of the person from the community
  • ·will facilitate personal mobility of the person in the manner and at the time of the person’s choice
  • a mobility aid or device, or assistive technology, live assistance or intermediaries that will facilitate personal mobility of the person
  • is a health service that the person needs because of the person’s impairment or because of the interaction of the person’s impairment with various barriers
  • is a habilitation or rehabilitation service
  • is a service that will assist the person to access a support covered by subparagraph (iv) or (v)
  • will minimise the prospects of the person acquiring a further impairment or prevent the person from acquiring a further impairment
  • is provided by way of sickness benefits.“

This is an example of very poor drafting, and appears to have been directly lifted from Articles of the UNCRPD. It has no relevance to the way in which the NDIS operates, being a rights based insurance system, rather than a system based on health or welfare services. It has no relation to the Australian Constitution, and undermines the impact of the NDIS both in terms of impact, and implementation.

It changes the emphasis from an Insurance scheme which invests in the participants and builds capacity where possible, to a welfare system that the participants applies for supports via a “benefits” process. Did the drafter actually understand the basis and rationale of the NDIS?

The NDIS is the best rights system of its kind in the world, despite what some commentators with vested interests might say.

Item 14 is totally contradictory to the provisions of the 2013 Bill, s.34 which provides that an NDIS support is:

’In relation to both general supports to be provided and reasonable and necessary supports to be funded, the CEO also needs to be satisfied of a number of matters, including the following:

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

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(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social or economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

       (f) the support is most appropriately funded or provided through the NDIS, and
                     is not more appropriately funded or provided through other service
           systems.”

The NDIS supports are not “sickness benefits” nor are they “health benefits”, as these supports are supposed to be delivered by other service systems such as Health and Medicare. This is fundamental to the operation of the NDIS.

Rehabilitation supports are strictly not funded by the NDIS, as these are deemed to be temporary and therefore, fail the test for access which is permanence of disability, even under the new Bill.

Under the current NDIS legislation, Assistive Technology has many applications and is not limited to mobility or habitation equipment.

The UNCRPD definition should be applied to Foundational supports only, as these must come from other systems, such as Health and Education, and provided by the States. This would allow LGAs to resume their responsibility for providing supports to people with disabilities who do not qualify for NDIS supports, but still require help to self-care, and to access the community. This definition should not be applied to NDIS supports.

Item 14(10) of the new Bill should be completely struck out. The definition in the sections regarding “Reasonable and Necessary NDIS Supports” in the previous legislation should be retained.

Functional Assessments, The “Assessment Tool”, and the role of Assessor

Section 32L (2) defines an “assessment tool” that will be used to develop NDIS supports in “new framework” plans. No details are provided as to what assessment

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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tool with be used by “Assessors” (not Planners) when building supports for participants.

"The CEO must arrange for an assessment of a participant's need for

supports to be undertaken as soon as practicable after the CEO commences the preparation of a plan for a participant.

(2) The assessment must be undertaken using the assessment tool, and in

accordance with any other requirements, determined under subsection (8). (3) The assessment must assess the participant’s need for supports only in respect of impairments in respect of which the participant meets the disability requirements or the early intervention requirements.

(4) The assessment must:

(a) have regard to any information and reports requested under

subsection 36(2) for the purposes of the assessment; and b)may have regard to any other information held in the records of the Agency that relates to the person.

In regards to "needs assessments" reports:

(5) A report of the assessment must be prepared and given to the CEO as

soon as practicable after the assessment is completed.

(6) The report must include any information, and meet any requirements,

determined under subsection (8).

There is a concern that these are a rehash of the “Independent Assessments” that were previously promoted, and subsequently not actioned, due to reasonable participant objections. More details about the types and methods of assessments should be supplied before this legislation is passed.

The lack of detail about who the Assessors are and how the Assessments will be conducted is causing distress amongst participants as all existing plans will be reassessed for eligibility and level of supports. There must be more consultation with the Disability community about the Tool, and how it will be used to develop supports.

It is not clear how a functional impairments can be linked to a person’s disability for NDIS access and support requirements, if a medical diagnosis regarding primary and additional disabilities will not be in the initial criteria for assessment, and how this functional assessment will be conducted.

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

Planning and Access Pathways

The Minister is also given powers to determine what assessment tools will be used, but there are no details as to how these tools will be selected or applied, or how the classification of participants will be applied in the planning process. Details must be provided to participants about these changes, so that they can understand the processes and prepare appropriate reports.

Currently, there are people waiting months for access decisions, new plans, plan roll overs, and change of circumstance reviews. Will this improve under the “new framework”, or will supports be suspended until new framework plans are put in place? There is no complaints process available to NDIS participants for unreasonable delays due to poor NDIS processes.

Another real issue is the provision of adequate staffing and other resources to the NDIA so that backlogs are reduced and timelines are respected, and that the onus to produce reports in a timely fashion placed on participants is removed, when NDIS planning and assessment processes are subject to endless delays, and a general lack of system competence.

There is very little detail in the new Bill regarding how the planning process will work, and what avenues of review will be available to participants

There will be a transition period, where those who are current NDIS participants will go through a reassessment process to change their plans from “old framework” to “new framework” plans.

As a result of undefined processes, participants can have their plans suspended or access revoked if they do not provide certain information to the CEO during this assessment process.

Under S.30(2) The CEO can request information and reports, in an approved form, for information that is reasonably necessary, that must be provided within 90 days, The CEO may revoke the participant’s status as a participant in the National Disability Insurance Scheme. However, S.32(6) states that:

However, the CEO must not revoke the participant’s status as a participant in the National Disability Insurance Scheme under subsection (5) if the CEO > is satisfied that it was reasonable for the participant, or the other person

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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    mentioned in paragraph (3)(a), not to have complied with the request
   made by the CEO within that period.”

Who determines that this non-compliance was reasonable or otherwise, and what is the process.? There is no transparency around this broad power given to the CEO, who is not accountable for decisions.

The CEO has the power to decide if a participant is not compliant and there do not appear to be any limits to this power. There are also no ways in which to challenge such a decision by the CEO. This is not fair and equitable. How does this conform to the principles of transparency and equity of the NDIS?

This may have unforeseen outcomes for participants:

Case Study example of impact: Olivia’s plan

Olivia is a young adult with very severe autism. It impacts her life in many ways. She can’t live with others because of her violent tendencies. She is subject to several restrictive practices under a Behaviour Support Plan. She lives alone with 2:1 support because she self-harms if left alone. She also damages her environment, without the constant support of two support workers, and injures support workers. She isn’t able to go out into the community at all without such support. Her current “old framework” plan is being reviewed under the new legislation.

Olivia’s mother, her Nominee, is not able to get the Behaviour Support Plan and Psychologist report within the required timeframes for the “new framework” asessment, because the Psychologist has no capacity to do a detailed report due to being inundated by requests from other participants being reassessed by the NDIS for the same reason. She hasn’t been able to find another registered Psychologist to do the assessment. She is concerned that Olivia’s access will be revoked and her supports cancelled, so that she will have to come home to her mother, who is 75 years old and has significant health issues. This is a likely outcome under the new legislation.

How is this fair to Olivia, or her mother?

Participants on the NDIS have a permanent and severe disability. This is already a criterion for access. Disability does not disappear or cease and the supports provided do not cease to be required either, just because the NDIS refuses to recognise them. If access criteria during any process have been met, it is

Information Required for “New Framework” Plans

Subsection 36(3) deals with requests for information by the CEO for the purposes of preparing a new framework plan. It provides that a request for information must specify a 28 day minimum timeframe in which to provide information and reports. This is at odds with the 90 day timeframe in other parts of the Bill.

This does not take into account any reasons outside the participants control, which might affect the participants ability to organise the relevant report, such as waiting times and thin markets.

This appears to be inequitable given the current tightness in the Allied Health support market, and the delays in generating reports and finding a suitable specialist to write them. It is not clear if these CEO access decisions can be challenged at the AAT.

The next section states that: “A report of the assessment must be prepared and given to the CEO as soon practicable after the assessment is completed.” This is also a very subjective test of the time lines which are acceptable for the preparation of such an assessment. No details are provided of what is “practicable”, so it seems to a very arbitrary power exercised by the CEO. It’s not clear if an the exercise of this power be challenged by the participant.

S32 F

S 32 F provides that a “funding period” will now be 12 months, or shorter. This refers to the period during which part of the “flexible budget” can be spent. Each plan may be for several years, but will only be funded for 12 month periods. This is to prevent participants from using up their budget before the end of the plan.

Given that “new framework” plans have separate funding categories for different types of supports, this reduces flexibility of participants to use their funding in the most efficient and appropriate way. Funds in different categories that are exhausted during the funding period will not be able to be used in other funding categories. Previously, all Core supports were flexible, and only Stated Supports were fixed.

This means that there is less flexibility around when and how the funds are spent by participants. How does this promote choice and control about how the funds are spent to support a participant in the way that they choose?

Case Study example: Ben’s STA

Ben has been an NDIS participant for 5 years. In his last plan, he used his 28 days of SDA funding to access short term accommodation at the end of this 2 year plan because his mother needed to go overseas to visit her brother who was dying of cancer, as he requires 24 hour supports.

Under his new framework plan, he has been given flexible funding, with 12 month funding periods so that he can only access 14 days STA funding each year. He would like to do as he did before, and be supported to stay somewhere else for 28 days, for a reason that he chooses.

He can’t do this under the new Rules. How does this increase his funding flexibility?

There is still the problem of thin markets for some supports, especially in remote regions resulting in delays of service delivery. How will this periodic funding allow for a slow increase in plan spending as supports are utilised in the ramping phase of plans, which can take many years?

Some service providers will be forced to leave the scheme due to new registration requirements. Is it a design element of the new framework that plans will be cut if sufficient service provision cannot be found during the funding period?

Classes of Participants

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The Bill also refers to “classes of participants” which is not part of the original legislation. In Section 32(E),

(4) A support is a stated support for a participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be a stated support:

    (a) for participants generally; or
   (b) for a class of participants that includes the participant

And further at, 32(G),It states:

“(b) the support is declared by National Disability Insurance Scheme rules made
 for the purposes of this paragraph to be a support that is appropriately funded
or provided through the National Disability Insurance Scheme:
  • for participants or prospective participants generally; or
  • (ii) for a class of participants or prospective participants that includes the person; and
  • (c) the support is not a support declared by National Disability Insurance Scheme rules made for the purposes of this paragraph to be a support that is not appropriately funded or provided through the National Disability Insurance Scheme:
  • for participants or prospective participants generally; or
  • (ii) for a class of participants or prospective participants that includes the person“.

What are these “classes of participants?” There is also no detail provided for the definition of “classes of supports”. More detail must be provided to participants before the Bill is passed.

There is concern that the assessment process will be used to organise participants into groupings of people with similar functional impairments regardless of disability, and have generic support budgets allocated as a result. This does nothing to support the proposition that the participant is at the centre of the scheme, if that participant is treated as one of many in any decision that affects their supports.

There is also real concern that this will be a process which is not transparent, and will lead to outcomes for participants which will not be reviewable (appealed against).

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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This is a fundamental challenge to the notion that this reform puts the person at the centre of the planning process.

Case Study Example: John who has MND

John is a 40 year old participant who was diagnosed with MND 5 years ago. This is a degenerative neurological disorder that affects all aspects of a person’s life, including gross motor, fine motor, speech, mobility and results in early death.

His “old framework” NDIS plan recognised that his condition caused sudden and irreversible declines in function and required proactive changes in support levels. This was reflected by having 12 month plans which could be subject to “Change of Circumstance” variations, without triggering a total review process.

Under his “new framework” plan, John’s MND diagnosis was not taken into account. Instead, he was subjected to a snapshot functional assessment which placed him in a category of other participants who had similar impairments at that time, but do not have degenerative conditions which change quickly.

The result is a 5 year plan, with supports that are the same for the entire length of the plan. There is no reasonable adjustment for his specific diagnosis and prognosis. This means that supports can’t be adjusted if his condition deteriorates, and he requires more support. The funding period restriction also means that he can’t draw on the next phase of the plan if needs more support suddenly before the end of the funding period.

This could have catastrophic consequences for a person who can’t predict what supports he might need tomorrow, and might be subject to administrative delays in applying for additional supports, if such a process is possible?

How does this plan support John in the most flexible way, to ensure safety and a recognition of the severity of his condition?

Reasonable and Necessary

The NDIS 2013, S34 defines Reasonable and necessary supports as:

    "(1) For the purposes of specifying, in statement of participant supports,

The general supports that will be provided, and the reasonable and“

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     necessary supports that will be funded, the CEO must be satisfied of all of the
      following in relation to the funding or provision of each such support:
       (a) the support will assist the participant to pursue the goals, objectives and
       aspirations included in the participant's statement of goals and aspirations;
      (b)the support will assist the participant to undertake activities, so as to
        facilitate the participant's social and economic participation;
       (c) the support represents value for money in that the costs of the support
     are reasonable, relative to both the benefits achieved and the cost of
       alternative support;
       (d) the support  will be, or  is  likely to be, effective and beneficial for
     the participant, having regard to current good practice;
       (e) the funding or provision of the support takes account of what  it  is
     reasonable to expect families, carers, informal networks and the community
      to provide;
          (f)  the  support   is  most  appropriately funded  or  provided  through
     the National Disability Insurance Scheme, and  is not more appropriately
    funded or provided through other general systems of service delivery or
      support services offered by a person, agency or body, or systems of service
       delivery or support services offered:"

Item 10 of the new Bill, removes the test of “Reasonable and Necessary” from the attribution and development of NDIS supports, which is a fundamental alteration to a system, whilst not perfect, was a logical process which produced measurable outcomes for participants.

 If under the new Bill, a generic support is generated by a generic assessment, which

leads to a budget to fund certain categories of supports for certain classes of participants, how is are the participant’s goals and aspirations central to the planning process? Where is the transparency around how “new framework” plans are built?

There is no reference to the application of the participant’s goals in the building of the plan, as there is no reference to this in the assessment process, or how the assessment report is to be prepared in relation to such goals.

There is only a reference to the goals of the participant being incorporated into the Participant’s Statement, but not how these goals feed into the development of a plan.

 It would appear, therefore, that the link between a participants goals, and the

allocation of supports has been severed by the new legislation. How does this put the participant at the centre of the planning process?

 Submission to the Senate Committee: NDIS Bill #1 2024                          by Ruth Hoffman

Case Study: Cornelius’s new framework plan

Cornelius is a young adult male who has Cerebral Palsy, at a high functional impact. He uses mobility devices, and various assistive technology to live at home with his mother, and access the community in the way that he chooses.

He requires 24 hour support because he is unable to be left unattended due to high physical support needs. He requires Speech Therapy, Occupational Therapy and Physio to improve his physical capacity to live independently, which is one of his NDIS goals.

Prior to the NDIS, he left his special school and was forced to attend a day service because his funding did not allow any 1:1 support. He had no supports outside the hours of 9-3 on weekdays, because day services run on school timetables. He did not get to choose how to spend his funding, or what he wanted to do with it. He was subject to the day service timetable. He had no support during the school holidays or at weekends, or in the evenings. All informal supports were provided by his ageing mother.

Under the “old framework” NDIS plan, he received 1:1 support of up to 12 hours per day. He was able to leave the day service, and accesses the community to acquire work experience, attend TAFE, pursue leisure interests, and keeping fit. He went out with friends and attended recreational activities every week. He had the opportunity to spend time with friends away from home at the weekends, and hang out with them at other times. He had the life he chose for himself, doing things he wanted to do with people he chose to do them with.

He has various NDIS gaols which are aimed at building his capacity to live independently, with appropriate support.

His “new framework plan” has removed these supports. HIS NDIS goal of independent living was ignored. His NDIS supports were allocated at a 1:3 ratio, because he requires 24 hours support, and was classified as such by the assessment process. His reasonable and necessary budget was scaled back to fit the definition of NDIS supports. His hours support were reduced .

Unfortunately, there are no day services placements available because they are all full, as other participants classified like him, are forced to access these after their supports were reduced by the new assessment process.

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He is now stuck at home with his mother, as she is his only informal support. He is very unhappy and doesn’t understand why he can’t do all the things he did before, and how NDIS planning affects this.

His Assistive Technology supports were strictly defined as mobility supports, so he is not able to have his shower chair replaced. He may not have his walker funded in the next plan, if it lasts that long, because he also requires a new wheelchair, which he uses when he is not walking.

His therapy supports have been reduced because he will not be funded to live independently by himself, so is deemed not require capacity building towards that goal. He been classified as a person who must live with 2 other people and share his supports with them.

How are Cornelius’s goals and aspirations reflected in this plan? Why have his reasonable and necessary supports been reduced under the “new framework”?

While it is understandable that the sustainability of the scheme is a concern, the impact on each participant of this limiting legislation on participants has not been taken into account. A participant’s goals and aspirations about the life they want to live is paramount. Sustainability is not the only important issue in NDIS reform.

The 2013 definition of “reasonable and necessary” supports should be retained, and item 10 deleted.

Compliance by Participants: Penalties (Robodebt 2?), and the powers of the CEO

Regarding Flexible funding, section 32 restricts how flexible funding can be spent, and penalties imposed if participants over spend their budgets.

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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“(2) If the needs assessment report for the plan indicates that the participant needs at least some supports that are NDIS supports but not stated supports for the participant, the reasonable and necessary budget must provide:

(a) that certain funding ( flexible funding ), up to a specified amount (total funding amount ), will be provided under the plan to or in relation to the participant for those supports; and

(b) that the flexible funding may be spent on any NDIS supports for the participant and only on such supports, subject to any restrictions under subsection 32F(6) that require the funding to be spent on particular supports.

Note 1: For additional rules about flexible funding, see section 32F. Note 2: The total funding amount for flexible funding is worked out under section 32K. Note 3: The reasonable and necessary budget may specify requirements relating to the acquisition or provision of supports (see section 32H). Note 4: A debt may arise if funding is spent on supports that are not NDIS supports or if it is spent other than in accordance with the plan.“

How is this debt established and what are the processes that do this? Will debts be recovered by an automatic system like Robodebt, and how are participants rights protected during this process?

It is a concern that the NDIS plan will be suspended, and supports ceased, if a participant inadvertently exhausts the funding allocated during the funding period. This can happen in situations where a participant is dependent on a third party, such as a plan manager, Nominee, or the Agency for the management of the plan. If the NDIA is responsible for the plan being exhausted, how is the participant responsible for this debt. Can a debt decision be challenged by the participant?

Classes of supports, and specified service providers

In S32(H), there is a significant change to the way in which participants can acquire supports. Under this section, classes of participants are required to purchase certain supports from designated service providers. This has real impacts on the flexibility of participants to choose their own supports, and it is not clear what happens if those designated service providers do not have capacity to deliver supports. Are

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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participants restricted from finding these supports elsewhere? How does this support the choice and control of the participant.

32(H) of the Bill states requirements relating to acquisition or provision of supports:

‘(1) A participant’s reasonable and necessary budget may provide that flexible funding, or funding for stated supports, will be provided under the plan for particular supports specified in the plan only if specified requirements are complied with in relation to the acquisition or provision of the supports.

(2) Requirements specified under subsection (1) may include the following: (a) a requirement that the supports be provided by a specified person or persons in a specified class; (b) a requirement that a specified process be undertaken before the supports are acquired or provided; (c) a requirement that specified conditions be satisfied in relation to the participant before the supports are acquired or provided;’

It is not clear which “classes of supports” this refers to or what “specified processes“ is undertaken before supports are purchased. It is also not clear whether this new process removes the requirement for service agreements for these specified classes of supports. How does this deliver greater flexibility or protection to participants?

Suspension of plans and cessation of supports

Item 57 inserts new paragraph 41(1)(aa) before existing paragraph 41(1)(a) and deals with when a statement of participant supports in a participant’s plan is suspended.

Currently, a plan is suspended only where a person is temporarily absent from Australia or where a participant does not take the required action to obtain appropriate compensation.

This item adds a new circumstance, specifically that a plan is suspended where a person fails to provide requested information or reports for the purposes of a needs assessment under new section 32L.

‘Under S.30(2) The CEO can request information and reports, in an approved form, for information that is reasonably necessary, that must be provided within 90 days,

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the CEO may revoke the participant’s status as a participant in the National Disability Insurance Scheme.

“(6) However, the CEO must not revoke the participant’s status as a participant in the National Disability Insurance Scheme under subsection(5) if the CEO is satisfied that it was reasonable for the participant, or the other person mentioned in paragraph (3)(a), not to have complied with the request made by the CEO within that period.”

There is real concern about what happens if a participant is unable to provide the required information due to circumstances outside their control, such as a waitlist for the therapist/medical practitioner’s availability? Will the participant’s plan be suspended, and supports ceased?

There is no detail, and no transparency around the process, which seems to give the CEO an arbitrary power to apply this provision, without giving any examples of when this exemption might apply. Once again, the participant has no power to affect any outcome in their own right. The CEO has the power to decide if a participant is not compliant and there do not appear to be any limits to this power. There are also no ways in which to challenge such a decision by the CEO. This is not fair and equitable. How does this conform to the principles of transparency and equity of the NDIS?

Regarding Notice of decisions given to participants about a revocation of supports, The section does not have a timeframe:

    “(7) The CEO must give the participant written notice of a revocation under
   subsection (1) or (5), stating the date on which the revocation takes effect.
   Section 30A does not limit this section.”

Participants on the NDIS have a permanent and severe disability. This is already a criterion for access. Disability does not disappear or cease and the supports provided do not cease to be required either. If access criteria have been met, it is inequitable for any partial process to result in cessation of supports at any time thereafter, or for any reason. Such cessation of supports could result in isolation, trauma, injury or death of a participant.

  • Pending decisions about changes of participant status or eligibility should not be actioned by the cessation of supports until the fill process is finalised, and the decision published, within a reasonable timeframe. This timeframe should

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allow revoked participants to make other arrangement to organise safe and appropriate supports.

  • There should be no power granted to the Minister or CEO to allow plans to be suspended due to the lack of ability of participants to comply to processes which they are not consulted about, and have no power to change.

  • There should be a duty of care by the Minister and CEO to ensure that any potential or actual NDIS participants have a right to safe and secure supports which must be continued to be delivered, until any final decision is delivered and before any administrative process removes those supports.

There is also real concern that a “Robodebt” type process will occur where participants are wrongly accused of accessing the NDIS, or NDIS supports, as a result of faulty NDIS processes. There appears to be no right of appeal or complaints procedure available to participants in this instance.

Flexible Budgets, Funding periods, and participant responsibilities

This Bill purports to deliver greater flexibility to participants in the use of their budgets in choosing and purchasing appropriate supports.

However, the introduction of “funding periods” practically reduces this purported flexibility, by forcing the participant to use allocated funds within a 12 month period, whatever the length of the plan. So plans are getting longer, but funding periods are getting shorter.

This has various impacts:

  • A longer plan period means that the funding commitment to each participants is effectively frozen for the period of the plan. Plans may not be increased to reflect rises in prices for services, inflation, or availability of services in thin markets, or changes in circumstances. This benefits the NDIA, but not the participants.
  • Participants are responsible for keeping within the budget for each funding period. This has become much more difficult with the introduction of the PACE IT system, which removes the capacity for participants to review claims by “approved providers” against their plan.
  • Participants in remote areas and areas where service provider markets are thin, will be penalised because they are unable to spend their budget within funding periods, and it is not clear if unspent funds will be rolled over to the next funding period, especially if they occur in different funding categories.

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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  • There is also concern that “approved Providers” in PACE, will be able to claim against plans until funds run out, and participants will have no power to stop this, but will still be deemed to be “non-compliant’ if this occurs.
  • Participants have no control over such a scenario but services may be ceased and funding will not be available until the next funding period. How does this recognise the participant’s rights to continued funded supports in situations where they are not delinquent?。
  • There is no commensurate duty on Providers to claim within the budget, as defined by their Service Agreement and funding period so there is a real power imbalance established by this Bill, between participants and providers that did not exist before.

Provision of services by providers to participants are generally governed by Service Agreements, which outline the services to be delivered, and the price of these services.

However, these agreements are not legally enforceable, and are generally written by the provider. Participants do not have the power to change the agreements and are often subject to conditions that do not benefit them.

There is concern that this bargaining imbalance will be emphasised by the provisions in the Bill, which do not penalise providers for non-compliance, and do not establish any scrutiny of billing by providers, but instead puts all the expectations on participants to “comply” with the terms of their NDIS plans.

Plan management options and provider registration

The additional levels of bureaucracy established in this Bill are counter to the principles of the NDIS Bill 2013 which established the scheme, by restricting the choice and control of participants to select the providers of their supports in the most appropriate way.

Under the 2013 legislation, flexibility in plan management and choice of providers was established by the following plan management options;

    1. NDIA managed where participants could only choose registered providers to deliver services. Billing is controlled by the NDIA, and prices are limited by the Price Guide. This results in participants paying the maximum price for services, because there is no capacity to negotiate lower prices.
    2. Plan managed, where an intermediary allows participants to use any service provider but monitors and is responsible for billing. Prices are limited by the Price Guide. This method allows some participants to negotiate lower prices.

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  1. Self-managed, where participants deal directly with providers and are responsible for managing payments. Funds are deposited in the participants/Nominees back accounts and providers are paid by them. Prices are not limited by the price guide. Self-managed participants often negotiate lower prices with service providers, because generally, there is no intermediary to take part of the price for service, or organisational overheads to increase their costs.

The Bill proposes the registration of all NDIS service providers, in order to restrict the use of NDIA registered providers only. This raises many issues of concern:

  • Currently registration is voluntary, except for high risk services, such as accommodation, and restrictive practices.
  • There are 16,000 registered service providers, and about 150,000 are unregistered .How will all these providers be supported to migrate to registration in order to maintain market depth?
  • Under the new Bill, participants will have to use registered providers, according to the three tier system outlined in the Bill. What happens if there aren’t enough registered providers to support demand from participants?
  • Many providers have already de-registered due to the onerous nature of registration, and this may force more the leave, reducing the depth of the market.
  • There will be no flexibility for participants in operating their support budgets, and it will be harder for participants to stay within their funding budgets.
  • Most service providers will charge the highest price in the Price Guide because the negotiating power of the participant will be reduced.
  • This will cause prices for services to rise.
  • There is also some concern that the Price Guide will be abolished, which will allow providers to charge whatever they like, which also impairs the ability of participants to manage their funding budgets.

Many currently unregistered providers do not have the capacity to become registered. Many of these will leave the system, leaving participants with fewer support choices. This will affect their ability to choose the supports that are most appropriate for their circumstances.

Registration of all providers does not provide better protections for participants and reduces flexibility that some participants require in managing their supports.

This does nothing to protect participants in terms of quality of service provision and erodes their choice and control of how they are supported to achieve their NDIS goals.

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman

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Quality and Safeguards

It is a principle of the new Bill that participants will be better protected by the registration of all service providers, who will now be subject to the scrutiny of the newly established National Disability Safeguards Commission. However the mere establishment of this body will not improve the issues around quality of service provision unless the new body is adequately resourced to perform this newly extended remit.

Registration does not guarantee a higher quality of service without constant and consistent scrutiny, unscheduled inspection (by organisation such as Community Visitors, or NDSC Inspectorate), and audits that require independent input by participants, which does not happen under the current legislative environment.

There are many unregistered providers that provide excellent quality of services. There are some registered providers who are breaking the rules, overcharging and treating participants like cash cows. To date, it has not been possible to report providers, even registered providers for breaches of the rules with any reasonable outcome for the complainant participant. It’s not clear how this will change despite the additional requirement for provider registration, or the limited capacity of the NDSC to prosecute such issues.

The Bill does not provide any details of how the capacity of the NDSC will be increased, such processes established, and how the organisation will be appropriately funded given that their remit is now substantially increased.

The quality of service provision is about more than the registered provider “self-reporting” via the Audit process, where there is little to no incentive to review their own performance against practice standards in an objective way. The current Audit process is clearly insufficient in this regard, and the Bill does not improve this.

The Bill does not provide any details of how the infrastructure on the National Disability Safeguards Commission will be supported and increased to ensure that participants’ rights to safe and appropriate services will be protected. This is not a new issue. If the remit to the NDSC is extended to the scrutiny of all registered providers, the currently overstretched and underfunded organisation will be even more compromised in its ability to perform its crucial role. Complaints will not be adequately addressed, and urgent situation of abuse will not be investigated in a timely fashion.

The Joint Standing Committee on the NDIS Quality and Safeguards Commission reported (2021), at s.9.6, that:

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“The committee heard that the Commission does not have sufficient staff to effectively perform its functions. In particular, evidence indicated that the Commission may lack adequate numbers of ‘frontline’ staff—such as complaints officers and investigators—to respond to and investigate complaints and reportable incidents.”

And, Community and Public Sector Union, Submission 39, p. 4.

“Frontline operation teams do not have adequate employee numbers to manage the volume of reportable incidents, complaints, or compliance activities currently within the Commission’s oversight. Participants are at risk due to the inability of the Commission Branch functions to perform thorough assessments to ensure the ongoing safeguarding of participants has occurred and NDIS providers are meeting legislative obligations”

In their submission, the People with a Disability Australia commented, at S9.36 that the Commission’s ability to launch investigations of its own accord, was limited largely because of insufficient funding.

Also, the Commission had a ‘reactive rather than proactive approach’. This had particularly become evident during the COVID-19 pandemic, when the Commission encouraged individuals to make their own complaints to address the issue of service providers not providing continuity of support. PWDA contended that:

“> “This is problematic as many people with disability live in closed settings where it is difficult and often frightening to make a complaint… Relying on complaints is particularly problematic during the pandemic as people with disability have reduced access to visitors, including advocates who can help them make a complaint. Further, people with disability may not be in a safe situation to risk making a complaint when they may be reliant on this same person for supports.

The problematic nature of relying on complaints to trigger investigations was also recently highlighted by the tragic death of Ann Marie Smith… [If Ms Smith wanted to make a complaint to the NDIS Quality and Safeguarding Commission, in the absence of other visitors, it would need to be done through the very person who would be subject of the complaint.]“

Unless the NDSC is given greater powers via the appropriate resourcing and training of an inspectorate to enter and inspect settings in which high support and complex participants are supported, there will be very little improvement in these ‘High Risk’ supports. Increased registration will not make any difference. Participants in these settings have a reduced capacity to make complaints, so are particularly vulnerable to abuse.

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The increase of the remit of the NDSC to investigate all participants quality of service provision means that these high risk supports for participants will receive even less scrutiny unless adequate resources are established before the provisions of the Bill come into operation. This does nothing to keep more vulnerable participants safe, and reduces the rights of all participants.

What are there penalties for non-compliance with the Rules by providers? Currently, there are no penalties for failing audits, or other misfeasance. Non- compliant providers are not fined, nor is registration removed, or accreditation (if it exists) revoked. Will there be penalties for offending providers under the new Bill? Otherwise, what is the point of further registration?

What are the staffing targets for the new National Disability Safeguards Commission and what is the budget for this? What is the time line for full operability required by the Bill?

Personal Statement

The following comments are personal, and drawn from my life experience as a parent of a young adult with a disability.

My son’s life has changed in such positive ways since he became an NDIS participant several years ago. Everything that was promised has been delivered in terms of giving supports which allow him to go out in the community to learn, keep fit, see friends, do work experience, try and find a job, and have all sorts of experiences that those without a disability take for granted. The planning process has been stressful, but outcomes are very positive for all of us as a family, and particularly for my son as a young man with severe disabilities.

As a family, we have a great deal of gratitude for the hard work that NDIS planners and staff have put into developing a plan that has been so fit for purpose. My son has a life that is safe, purposeful, stimulating, rewarding and he is able to live the way he chooses. This Bill has the potential to change all of that, and not in a good way.

     I am appalled at the truncated time frames that have been made available

to participants (and providers) to examine the reforms proposed in the new Bill. It’s not acceptable to table a bill with multiple pages of amendments, and ancillary explanatory memoranda and expect that anyone, let alone a person with a disability would be able to examine, analyse, and prosecute the volume of information that is required by this short timeline of a few weeks. It’s a very ableist approach to delivering reforms to this section of society, which will require more time than most to process this information, while paying lip service to “putting the participant at the centre of the Planning process”. This could

Submission to the Senate Committee: NDIS Bill #1 2024

by Ruth Hoffman

not be further from the truth. And that is before we even examine the new bill, and it’s frankly, discriminatory and punitive provisions.

And finally, as a parent of a young man who enjoys every day of his life because of his NDS supports, it’s terrifying to think of him, and other NDIS participants, being demonised as thieves, process abusers and people who commit fraud against the system, being punished by having supports suspended or debts being raised against them for issues that arise over which they have no control. Where is the NDIA’s duty of care to my son, to deliver life critical supports in the ambit of this new, punitive legislation?

Author: Ruth Hoffman Date: 23 April 2024

e NDIS Nominee and parent of a young man with complex disability o Former Community Visitor (Department of Justice, Victoria) eo Former Board member, Disability Justice Australia o Former member of the Disability Advisory Committee, Boroondara Council o Current member, Kooyong NDIS and Disability committee

Resources

https://ministers.dss.gov.au/speeches/14261

https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A %22legislation%2Fems%2Fr7181_ems_f83281ef-0f46-4fbb-a59f- 2e19439dcacb%22

https://www.dss.gov.au/disability-and-carers-programs-services-ndis- reforms/the-ndis-amendment-bill-questions-and-answers

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_ Results/Result?bId=r7181

https://www.ndisreview.gov.au/resources/reports/working-together-deliver- odis/preface/recommendations-and-actions

https://www.nds.org.au/news/breaking-news-changes-to-the-odis-act- tabled-in-parliament

https://www.dss.gov.au/disability-and-carers-programs-services-ndis- reforms/the-odis-amendment-bill-questions-and-answers#17

https://www.odis.gov.au/providers/working-provider/connecting- participants/reporting-and-participant-plan-reviews

Submission to the Senate Committee: NDIS Bill #1 2024

by Ruth Hoffman

https://www.ndis.gov.au/providers/working-provider/connecting- participants/reporting-and-participant-plan-reviews

https://www.ndis.gov.au/understanding/ndis-and-other-government- services/ndia-working-state-and-territory-governments

https://www.ndisreview.gov.au/resources/reports/working-together-deliver- ndis/letter-ministers-disability

https://www.ndisreview.gov.au/resources/reports/working-together-deliver- dis/part-one-unified-system-support-people-disability

https://www.ndisreview.gov.au/resources/reports/working-together-deliver- dis/part-two-markets-and-support-systems-empower-2#action12-3

https://www.ndisreview.gov.au/resources/reports/working-together-deliver- dis/part-two-markets-and-support-systems-empower-9#action19-2

https://qdn.org.au/getting-the-ndis-back-on-track-bill-information-for-qdn- members/

https://www.ndisreview.gov.au/resources/reports/working-together-deliver- dis/part-two-markets-and-support-systems-empower-9#action19-2

https://www.ndis.gov.au/understanding/families-and-carers/early-childhood- approach-children-younger-9

https://www.minterellison.com/articles/ndis-bill-introduced-into-parliament

https://www.dss.gov.au/disability-and-carers-programs-services-ndis- reforms/the-ndis-amendment-bill-questions-and-answers

https://www.thesaturdaypaper.com.au/news/politics/2024/01/13/the- hidden-risks-the-ndis-restructure#hrd

https://insideageing.com.au/opinion-fostering-trust-and-transparency-in-the- odis/

https://www.ndis.gov.au/applying-access-ndis/how-apply/information-gps- and-health-professionals/eligibility-and-early-intervention-faq

https://theconversation.com/draft-ndis-bill-is-the-first-step-to-reform-but- some-details-have-disability-advocates-worried-226730

https://www.dss.gov.au/disability-and-carers-standards-and-quality- aussurance/ndis-provider-and-worker-registration-taskforce

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https://www.nds.org.au/news/next-steps-in-the-ndis-amendment-bill

[https://www.ndisreview.gov.au/resources/reports/working-together-deliver- ndis/preface/recommendations-and-actions](https://www.ndisreview.gov.au/resources/reports/working-together-deliver- ndis/preface/recommendations-and-actions)

DSS Webinar: https://www.youtube.com/watch?v=XPVNvzz5WuI

[https://www.ndis.gov.au/understanding/ndis-and-other-government- services/ndia-working-state-and-territory-governments](https://www.ndis.gov.au/understanding/ndis-and-other-government- services/ndia-working-state-and-territory-governments)

[https://www.dss.gov.au/sites/default/files/documents/02_2024/ndis- principles-determine-responsibilities-ndis-and-other-service.pdf](https://www.dss.gov.au/sites/default/files/documents/02_2024/ndis- principles-determine-responsibilities-ndis-and-other-service.pdf)

[https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_ Disability_Insurance_Scheme/QS_Commission/Report/section?id=committees %2freportjnt%2f024506%2f73503](https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/National_ Disability_Insurance_Scheme/QS_Commission/Report/section?id=committees %2freportjnt%2f024506%2f73503)

[https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id% 3A %22legislation%2Fems%2Fr7181_ems_f83281ef-0f46-4fbb-a59f- 2e19439dcacb%22](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id% 3A %22legislation%2Fems%2Fr7181_ems_f83281ef-0f46-4fbb-a59f- 2e19439dcacb%22)

[https://global.lockton.com/au/en/news-insights/navigating-ndis-reform- potential-risk-and-insurance-implications](https://global.lockton.com/au/en/news-insights/navigating-ndis-reform- potential-risk-and-insurance-implications)

[https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7181_ems_f8 3281ef-0f46-4fbb-a59f- 2e19439dcacb/upload_pdf/JC012589.pdf;fileType=application%2Fpdf](https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7181_ems_f8 3281ef-0f46-4fbb-a59f- 2e19439dcacb/upload_pdf/JC012589.pdf;fileType=application%2Fpdf)

Submission to the Senate Committee: NDIS Bill #1 2024 by Ruth Hoffman