2022-2023-2024
The Parliament of the Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
No. , 2024
(National Disability Insurance Scheme)
A Bill for an Act to amend the National Disability Insurance Scheme Act 2013, and for related purposes
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Contents
1 Short title ………………………………………………. 1
2 Commencement …………………………………………. 1
3 Schedules …………………………………………………………. 2
Schedule 1 — Main amendments
Part 1 — Amendment of the National Disability Insurance
Scheme Act 2013
National Disability Insurance Scheme Act 2013 ……………….. 3
Part 2 — Consequential amendments
Legislation (Exemptions and Other Matters) Regulation 2015 ………….. 56
Part 3 — Application and transitional provisions …………………….. 57
Schedule 2 — Quality and safeguards amendments
Part 1 — Amendments
National Disability Insurance Scheme Act 2013 ……………………….. 63
Part 2 — Application and transitional provisions …………………….. 67
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A Bill for an Act to amend the National Disability
Insurance Scheme Act 2013, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the redacted.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
| Column 1 | Column 2 | Column 3 |
|---|---|---|
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The 28th day after this Act receives the Royal Assent. |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Note: The provisions of a legislative instrument (the principal instrument) amended or inserted by this Act, and any other provisions of the principal instrument, may be amended or repealed by an instrument made under the enabling provision for the principal instrument.
National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
Main amendments Schedule 1
Part 1 — Amendment of the National Disability Insurance Scheme Act 2013
1 Subparagraph 3(3)(c)(i)
Repeal the subparagraph, substitute: (i) disability strategies agreed to by the Commonwealth and each host jurisdiction from time to time; and
2 At the end of subsection 3(3)
Add: Note: For subparagraph (c)(i), in 2024 the relevant strategy was Australia’s disability Strategy 2021-2031, accessible through the Department’s website.
3 Section 8 (paragraph (c) of the paragraph beginning “The”
National Disability Insurance Scheme comprises“) Repeal the paragraph, substitute: (c) individual plans under which certain supports (called NDIS supports) will be funded for certain people (called participants) (Chapter 3).
4 Section 9
Insert: flexible funding has the meaning given by paragraph 32E(2)(a).
funding component amount for a reasonable and necessary support, or class of such supports, funded under an old framework plan, has the meaning given by paragraph 33(2A)(b).
funding period: (a) for flexible funding provided under a new framework plan—has the meaning given by paragraph 32F(2)(a); and
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
(b) for funding provided under a new framework plan for a stated support or class of stated supports—has the meaning given by paragraph 32G(3)(a); and (c) for funding provided under an old framework plan for reasonable and necessary supports generally, a particular reasonable and necessary support, or a class of such supports—has the meaning given by paragraph 33(2A)(c).
5 Section 9 (definition of NDIS amount) Omit “reasonable and necessary supports”, substitute “supports (other than general supports)”.
6 Section 9 Insert: NDIS support, for a participant, has the meaning given by section 10. eeds assessment report, for a new framework plan, means the report of an assessment undertaken in accordance with section 32L for the purposes of the plan. ew framework plan has the meaning given by subsection 32A(1).old framework plan has the meaning given by subsection 32A(2).
7 Section 9 (definition of participant) Omit “and 30”, substitute “, 30 and 30A”.
8 Section 9 (definition of participant’s statement of goals and aspirations) Omit “subsection 33(1)”; substitute “subsections 32D(1) and 33(1)”.
9 Section 9 Insert: reasonable and necessary budget for a new framework plan means the reasonable and necessary budget specified in the plan under paragraph 32D(2)(a).
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Amendment of the National Disability Insurance Scheme Act 2013 Part 1
1 10 Section 9 (definition of reassessment date)
Repeal the definition, substitute:
reassessment date of a participant’s plan means: (a) if the plan is a new framework plan—the day after the end of the maximum period of effect specified in the plan under paragraph 32D(2)(d); or (b) if the plan is an old framework plan—the date specified in the plan under paragraph 33(2)(c).
2 11 Section 9
Insert:
stated support for a participant has the meaning given by subsection 32E(4).
3 12 Section 9 (definition of statement of participant supports)
Omit “subsection 33(2)”, substitute “subsections 32D(2) and 33(2)”.
4 13 Section 9
Insert:
total funding amount: (a) for flexible funding provided under a new framework plan— means the amount specified in the plan under paragraph 32E(2)(a); and (b) for a stated support or class of stated supports funded under a new framework plan—means the amount specified in the plan for the stated support or class of stated supports under paragraph 32G(2)(a); and (c) for reasonable and necessary supports specified in an old framework plan—means an amount specified in the plan under paragraph 33(2A)(a).
5 14 After section 9A
Insert:
No. , 2024 National Disability Insurance Scheme Amendment (Getting the NDIS
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 10 Definition of NDIS support
A support is an NDIS support for a person who is a participant or
prospective participant if:
- (a) the support:
- (i) 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; or
- (ii) will facilitate personal mobility of the person in the manner and at the time of the person’s choice; or
- (iii) is a mobility aid or device, or assistive technology, assistance or intermediaries that will facilitate personal mobility of the person; or
- (iv) 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; or
- (v) is a habilitation or rehabilitation service; or
- (vi) is a service that will assist the person to access a support covered by subparagraph (iv) or (v); or
- (vii) will minimise the prospects of the person acquiring a further impairment or prevent the person from acquiring a further impairment; or
- (viii) is provided by way of sickness benefits; and
- (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:
- (i) 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:
- (i) for participants or prospective participants generally; or
- (ii) for a class of participants or prospective participants that includes the person.
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1 Note 1: For subparagraphs (a)(i) to (vii), see the Convention on the Rights of 2 Persons with Disabilities done at New York on 13 December 2006.
3 Note 2: The Convention is in Australian Treaty Series 2008 No. 12 ([2008] 4 ATS 12) and could in 2024 be viewed in the Australian Treaties 5 Library on the AustLII website (http://www.austlii.edu.au).
6 Note 3: For subparagraph (a)(viii), see paragraph 51(xxiiiA) of the 7 Constitution.
8 15 Subsection 10B(1) (note) 9 Omit “Note”, substitute “Note 1”.
10 16 At the end of subsection 10B(1) 11 Add:
12 Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not 13 apply to the instrument (see regulations made for the purposes of 14 paragraph 54(2)(b) of that Act).
15 17 Paragraph 19(2)(b) 16 Repeal the paragraph, substitute: 17 (b) either of the following apply: 18 (i) the CEO decides that the person does not meet the 19 access criteria, or is taken to have so decided because of Commented [A7]: Are these defined in the legislation? 20 subsection 21(3); 21 (ii) the person becomes a participant in the National 22 Disability Insurance Scheme as a result of the request 23 but the CEO subsequently decides under 24 subsection 30(1) or (5), paragraph 30A(1)(c) or 25 subsection 30A(7) to revoke the person’s status as such 26 a participant;
27 18 Subsection 21(2) 28 Repeal the subsection, substitute:
29 (2) For the purposes of paragraph (1)(c), the CEO must separately 30 consider and decide: 31 (a) whether or not the prospective participant meets the disability 32 requirements; and 33 (b) whether or not the prospective participant meets the early 34 intervention requirements.
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 19 Paragraph 24(1)(e)
2 Omit "support", substitute "NDIS supports".
3 20 Subsections 24(2) and (3)
4 Omit "support", substitute "NDIS supports".
5 21 At the end of subsection 24(4)
6 Add:
7 Note 1: The time at which a requirement in this section needs to be met is the
8 time the matter falls to be determined. For an access request, that time
9 is the time of considering the request (see paragraph 21(1)(c)).
10 Note 2: National Disability Insurance Scheme rules may be made in relation to
11 this section under subsection 27(1).
12 22 After paragraph 25(1)(c)
13 Insert:
14 ; and (d) the CEO is satisfied any early intervention supports that
15 would be likely to benefit the person as mentioned in
16 paragraphs (b) and (c) would be NDIS supports for the
17 person.
18 23 Subsection 25(3)
19 Repeal the subsection, substitute:
20 Note 1: The time at which a requirement in this section needs to be met is the
21 time the matter falls to be determined. For an access request, that time
22 is the time of considering the request (see paragraph 21(1)(c))..
23 Note 2: National Disability Insurance Scheme rules may be made in relation to
24 this section under subsection 27(1).
25 24 Subsection 26(3)
26 After "reasonable for the prospective participant", insert ", or the other
27 person mentioned in paragraph (1)(a),".
28 25 Section 27
29 Repeal the section, substitute:
8 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
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Amendment of the National Disability Insurance Scheme Act 2013 Part 1
1\ \ 27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
(1) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of section 24 (disability requirements) or 25 (early intervention requirements).
(2) Without limiting subsection (1), National Disability Insurance Scheme rules made for the purposes of that subsection may prescribe:
- (a) methods or criteria to be applied, or matters that may, must or must not be taken into account, for the purposes of either of those sections; or
- (b) circumstances in which a matter relevant to the application of either of those sections is taken to exist or to not exist in relation to a person.
26 Subsection 28(2)
Repeal the subsection, substitute:
(2) The CEO must give written notice of the decision to the participant, stating:
- (a) the date on which the person became a participant; and
- (b) whichever of the following applies:
- (i) that the CEO is satisfied the participant meets the early intervention requirements;
- (ii) that the CEO is satisfied the participant meets the disability requirements;
- (iii) that the CEO is satisfied the participant meets both the early intervention requirements and the disability requirements.
27 Paragraph 29(1)(c)
Omit “section 30”, substitute “subsection 30(1) or (5), paragraph 30A(1)(c) or subsection 30A(7).”
28 Subsection 29(2)
Repeal the subsection, substitute:
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Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 (2) A person is not entitled to be paid NDIS amounts so far as the 2 amounts relate to supports that are acquired or provided after the 3 person ceases to be a participant.
4 (3) The National Disability Insurance Scheme rules may specify 5 circumstances in which specified supports are taken for the 6 purposes of subsection (2) to be, or not to be, acquired or provided 7 after the person ceases to be a participant.
8 29 Before subsection 30(1) 9 Insert:
10 Circumstances in which participant status may be revoked
11 30 Subsection 30(2) 12 Repeal the subsection, substitute:
13 Requesting information and reports
14 (2) If the CEO is considering revoking a participant’s status as a 15 participant in the National Disability Insurance Scheme under 16 subsection (1), the CEO may make one or more requests under 17 subsection (3) for the purposes of deciding whether or not to do so.
18 (3) The requests the CEO may make under this subsection are as 19 follows: 20 (a) that the participant, or another person, provide information 21 that is reasonably necessary for deciding whether or not to 22 revoke the participant’s status as a participant in the National 23 Disability Insurance Scheme; 24 (b) that the participant do either or both of the following: 25 (i) undergo an assessment and provide to the CEO the 26 report, in the approved form, of the person who 27 conducts the assessment; 28 (ii) undergo, whether or not at a particular place, a medical, 29 psychiatric, psychological or other examination, 30 conducted by an appropriately qualified person, and 31 provide to the CEO the report, in the approved form, of 32 the person who conducts the examination.
33 (4) If:
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Amendment of the National Disability Insurance Scheme Act 2013 Part 1
1 (a) information or one or more reports are requested under
2 subsection (3); and
3 (b) the information and each such report are received by the
4 CEO within 90 days, or such longer period as is specified in
5 the request, after that information or report is requested;
6 the CEO must:
7 (c) decide whether or not to revoke the participant’s status as a
8 participant in the National Disability Insurance Scheme; or
9 (d) make a further request under subsection (3).
10 (5) If:
11 (a) information or one or more reports are requested under
12 subsection (3); and
13 (b) the information and each such report are not received by the
14 CEO within 90 days, or such longer period as is specified in
15 the request, after that information or report is requested;
16 the CEO may revoke the participant’s status as a participant in the
17 National Disability Insurance Scheme.
18 (6) However, the CEO must not revoke the participant’s status as a
19 participant in the National Disability Insurance Scheme under
20 subsection (5) if the CEO is satisfied that it was reasonable for the
21 participant, or the other person mentioned in paragraph (3)(a), not
22 to have complied with the request made by the CEO within that
23 period.
24 Notice of decisions
25 (7) The CEO must give the participant written notice of a revocation
26 under subsection (1) or (5), stating the date on which the
27 revocation takes effect.
28 Section 30A does not limit this section
29 (8) Section 30A does not limit this section.
30 31 At the end of Part 1 of Chapter 3
31 Add:
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Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 30A Requirement to consider status of certain participants
2 Circumstances in which CEO must consider participant’s status
3 (1) If a circumstance prescribed by the National Disability Insurance
Scheme rules for the purposes of this subsection applies in relation to a participant, the CEO must: (a) decide whether or not the participant meets the early intervention requirements; and (b) if the CEO decides under paragraph (a) that the participant does not meet the early intervention requirements—decide whether or not the participant meets the disability requirements; and (c) if the CEO decides under paragraph (b) that the participant does not meet the disability requirements—revoke the participant’s status as a participant in the National Disability Insurance Scheme.
4 (2) The National Disability Insurance Scheme rules may prescribe
requirements with which the CEO must comply, criteria that the CEO is to apply, or matters to which the CEO may, must or must not have regard, in making a decision under subsection (1).
5 (3) Any such rules apply in addition to, and not instead of, National
Disability Insurance Scheme rules prescribed for the purposes of subsection 27(1).
Requesting information and reports
6 (4) The CEO may make one or more requests under subsection (5) for
the purposes of making a decision under subsection (1).
7 (5) The requests the CEO may make under this subsection are as
follows: (a) that the participant, or another person, provide information that is reasonably necessary for making the decision; (b) that the participant do either or both of the following: (i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
Main amendments Schedule 1
Amendment of the National Disability Insurance Scheme Act 2013 Part 1
1 (ii) undergo, whether or not at a particular place, a medical,
2 psychiatric, psychological or other examination,
3 conducted by an appropriately qualified person, and
4 provide to the CEO the report, in the approved form, of
5 the person who conducts the examination.
6 (6) If:
7 (a) information or one or more reports are requested under
8 subsection (5); and
9 (b) the information and each such report are received by the
10 CEO within 90 days, or such longer period as is specified in
11 the request, after that information or report is requested;
12 the CEO must, within 14 days after the last information or report is
13 received:
14 (c) make the decision under subsection (1); or
15 (d) make a further request under subsection (5).
16 (7) If:
17 (a) information or one or more reports are requested under
18 subsection (5); and
19 (b) the information and each such report are not received by the
20 CEO within 90 days, or such longer period as is specified in
21 the request, after that information or report is requested;
22 the CEO must revoke the participant’s status as a participant in the
23 National Disability Insurance Scheme, unless the CEO is satisfied
24 that it was reasonable for the participant, or the other person
25 mentioned in paragraph (5)(a), not to have complied with the
26 request made by the CEO within that period.
27 Notice of decisions
28 (8) The CEO must give a participant written notice of the following:
29 (a) a decision of the CEO that the circumstance mentioned in
30 subsection (1) applies in relation to the participant;
31 (b) a decision under paragraph (1)(a) or (b) in relation to the
32 participant;
33 (c) a decision under paragraph (1)(c) or subsection (7) to revoke
34 the participant’s status as a participant in the National
35 Disability Insurance Scheme.
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Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 (9) The notice must state: 2 (a) any details prescribed by the National Disability Insurance 3 Scheme rules for the purposes of this paragraph; and 4 (b) if paragraph (8)(c) applies—the date on which the revocation takes effect.
6 32 Division 2 of Part 2 of Chapter 3 (after the heading) 7 Insert:
8 Subdivision A—Facilitating preparation of participants’ plans
9 33 Before subsection 32(1) 10 Insert:
11 Initial plan
12 34 Subsection 32(2) 13 After “participant’s plan”, insert “under subsection (1)”.
14 35 At the end of section 32 15 Add:
16 Subsequent plans
17 (3) The CEO must also facilitate the preparation of a plan for a 18 participant if: 19 (a) the CEO decides under subparagraph 48(7)(b)(ii) or 20 49(1)(b)(ii) to prepare a new plan with the participant; or 21 (b) the CEO gives the participant notice under subsection 32B(2) 22 that the participant is to have new framework plans.
23 (4) The CEO must commence facilitating the preparation of the 24 participant’s plan under subsection (3): 25 (a) unless paragraph (b) applies—as soon as practicable after the event mentioned in paragraph (3)(a) or (b) occurs; or 26 (b) if the National Disability Insurance Scheme rules specify a 27 number of days for the purposes of this paragraph—within 28 that number of days after the day the event mentioned in 29 paragraph (3)(a) or (b) occurs.
14 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
Main amendments Schedule 1 Amendment of the National Disability Insurance Scheme Act 2013 Part 1
1 Note: The CEO may suspend the preparation of a new framework plan if
2 information or reports requested for the purposes of the undertaking of
3 an assessment under section 32L are not received (see
4 subparagraph 36(3)(b)(i)).
5 36 After section 32
6 Insert:
7 32A Kinds of plans
8 (1) A new framework plan is a plan prepared in accordance with
9 Subdivision B.
10 (2) An old framework plan is a plan prepared in accordance with
11 Subdivision C.
12 32B Participants that are to have new framework plans
13 (1) The Minister may, by legislative instrument, determine:
14 (a) classes of participants that are to have new framework plans;
15 and
16 (b) for each class so determined—the period within which the
17 CEO must give notice under subsection (2) to participants in
18 the class.
19 Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not
20 apply to the instrument (see regulations made for the purposes of
21 paragraph 54(2)(b) of that Act).
22 (2) The CEO must, within the period determined under
23 paragraph (1)(b) for a class, give a participant in the class written
24 notice that the participant is to have new framework plans.
25 (3) The notice must include the details (if any) specified in the
26 National Disability Insurance Scheme rules for the purposes of this
27 subsection.
Subdivision B—Content of new framework plans
32C Application of this Subdivision
(1) This Subdivision applies in relation to a plan for a participant if:
No. , 2024 National Disability Insurance Scheme Amendment (Getting the NDIS 15
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Part 1 Amendment of the National Disability Insurance Scheme Act 2013
(a) a new framework plan has at any time come into effect for redacted
(b) the participant has been given a notice under subsection
32B(2) that the participant is to have new framework plans;
or
(c) the CEO starts to prepare the plan after the end of the
following period starting on the commencement of this
section:
i) 5 years (subject to subparagraph (ii));
(ii) such shorter or longer period as is determined under
subsection (2) of this section.
Note: If this Subdivision does not apply in relation to a plan for a participant, see Subdivision C.
(2) The Minister may, by legislative instrument, determine a shorter or longer period for the purposes of subparagraph (1)(c)(ii).
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the instrument (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
32D Matters that must be included in a participant’s plan
Participant’s statement of goals and aspirations
(1) A participant’s plan must include a statement (the participant’s
statement of goals and aspirations) prepared by the participant
that specifies:
a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s
living, including the participant’s:
i) living arrangements; and
(ii) informal community supports and other community redacted
supports; and `
(iii) social and economic participation. / these. Is the intent that such goals always fail for this
/I statement remains correct?
Or does this need to be the environment when the plan is
being created?
Statement of participant supports /
(2) A participant’s plan must include a statement (the statement of /
participant supports), prepared with the participant and approved
by the CEO, that specifies:
Surely s99 need to be changed to include 32D(2) as a
reviewable decision.
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Amendment of the National Disability Insurance Scheme Act 2013 Part 1
1 (a) the participant’s reasonable and necessary budget in
2 accordance with sections 32E to 32K; and
3 (b) the general supports (if any) that will be provided to, or in
4 relation to, the participant; and
5 (c) having regard to the needs assessment report for the plan,
6 whichever of the following applies:
7 (i) that the participant meets the disability requirements;
8 (ii) that the participant meets the early intervention
9 requirements;
10 (iii) that the participant meets both the disability
11 requirements and the early intervention requirements;
12 and
13 (d) the plan’s maximum period of effect, starting on the day the Commented [A13]: Does this prohibit roll-over of plans?
14 plan is approved; and
15 (e) any circumstances in which the Agency must reassess the
16 plan under Division 4; and
17 (f) the management of the funding for supports under the plan
18 (see also Division 3); and
19 (g) the management of other aspects of the plan.
How general supports may be specified in plan
20
21 (3) The general supports that will be provided under the National
22 Disability Insurance Scheme may be specifically identified in the
23 plan or described generally, whether by reference to a specified
24 purpose or otherwise.
Time limits for approving statement of participant supports
25
26 (4) The CEO must decide whether or not to approve the statement of
27 participant supports:
28 (a) within the period worked out in accordance with the National
29 Disability Insurance Scheme rules prescribed for the Commented [A14]: The timeframes need to be in the
30 purposes of this paragraph (which may take account of legislation, not conveniently flexible by being in the Rules.
31 section 36 (information and reports) and subsection 32L(7)
32 (replacement assessments under section 32L)); or
33 (b) if there are no such rules—as soon as reasonably practicable,
34 including what is reasonably practicable having regard to
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Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 section 36 (information and reports) and subsection 32L(7) 2 (replacement assessments under section 32L).
3 (5) However, subsection (4) does not apply if the preparation of the 4 participant’s plan is suspended under subparagraph 36(3)(b)(i) 5 (which deals with failure to provide information or reports for an 6 assessment under section 32L).
7 Requirements for CEO in approving statement of participant 8 supports
9 (6) In deciding whether or not to approve a statement of participant
10 supports under subsection (2), the CEO must:
11 (a) have regard to the participant’s statement of goals and Commented [A15]: No! must address. This weakens the
current legislation unacceptably.
12 aspirations; and
13 (b) for any general supports specified under paragraph (2)(b)—
14 be satisfied:
15 (i) that the supports will be, or are likely to be, effective
16 and beneficial for the participant, having regard to
17 current good practice; and
18 (ii) of any other matters specified in the National Disability
19 Insurance Scheme rules for the purposes of this
20 subparagraph; and Commented [A16]: So s34(1) isn’t good enough - you
21 (c) have regard to the principle that a participant should manage want more (indeterminate) excuses for undermining the NDIS
22 the participant’s plan to the extent that the participant wishes
23 to do so; and
24 (d) have regard to the operation and effectiveness of any
25 previous plans of the participant; and Commented [A17]: Wanting to use perceived problems
26 (e) have regard to whether section 46 (acquittal of NDIS with past plans against participants? Should this have a
statute of limitations then? 27 amounts) was complied with in relation to any previous plan
28 for the participant; and Commented [A18]: And retention of records
29 (f) be satisfied of any matters specified in the National
30 Disability Insurance Scheme rules for the purposes of this
31 paragraph. Commented [A19]: Approving SOPS
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Agency-managed funding—supports to be provided only by a registered NDIS provider
Commented [A20]: This seems premature - we are far from ready for this requirement.
(7)
To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider.
Plan may deal with additional matters
Commented [A21]: Seems too vague - while this seems to suggest that it is meant to be helpful, the wording does not prohibit all sorts of undesirable restrictions.
(8)
A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules. Note: For example, a participant’s plan may include arrangements for ongoing contact with the Agency.
Statement of goals and aspirations to be recorded in writing
Commented [A22]: Belongs further up - with the requirement for the statement of goals.
(9)
A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing. Note: Section 38 requires a copy of a participant’s plan to be provided to the participant.
32E Reasonable and necessary budget—entitlement to flexible funding or stated supports
(1)
A participant’s reasonable and necessary budget must provide that funding will be provided under the plan to or in relation to the participant in accordance with subsections (2) and (3), so far as they are applicable. Commented [A23]: I find this odd. Surely subsections (2) and (3) do this by their existence.
Flexible funding
Commented [A24]: Does this need to be defined in s9?
(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 (the total funding amount), will be provided under the plan to or in relation to the participant for those supports; and
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Part 1 Amendment of the National Disability Insurance Scheme Act 2013
(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.
Commented [A25]: Maybe needs a concept of limited range of supports or list of options that people can choose within.
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. This model binary on/off flexibility, but it seems government really wants a more graduated model of flexibility.
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 (see subsections 46(1) to (1B) (acquittal of NDIS amounts) and 182(3) (debts due to the Agency)).
Stated supports
Commented [A26]: There probably needs to be a concept of least restrictive (maximal flexibility) is this section. This model seems to invite abuse by planners of overly restrictive stated supports (some existing practice). I I
(3) If: a) the needs assessment report for the plan indicates that the participant needs a particular support or class of supports; and b) the support, or each support in the class, is both an NDIS support and a stated support for the participant; The reasonable and necessary budget must provide, for each such support or class of supports: c) that certain funding will be provided under the plan to or in relation to the participant for that support or class of supports; and d) that the funding provided for that support or class of supports may be spent: i) only on the support, or supports in the class, for which the particular funding is provided; and ii) only on supports that are NDIS supports for the participant.
Note 1: For additional rules about stated supports, see section 32G.
Note 2: The reasonable and necessary budget may specify requirements relating to the acquisition or provision of supports (see section 32H).
Note 3: 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 (see
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1 subsections 46(1) to (1B) (acquittal of NDIS amounts) and 182(3)
2 (debts due to the Agency)).
3 (4) A support is a stated support for a participant if the support is
4 declared by National Disability Insurance Scheme rules made for
5 the purposes of this subsection to be a stated support:
6 (a) for participants generally; or
7 (b) for a class of participants that includes the participant.
8 32F Reasonable and necessary budget—flexible funding
9 (1) This section applies if a participant’s reasonable and necessary
10 budget provides that flexible funding is to be provided under the
11 plan.
12 Funding periods for flexible funding
13 (2) The reasonable and necessary budget must provide:
14 (a) that the flexible funding will be provided under the plan
15 during specified periods (each of which is a funding period);
16 and
17 (b) when each funding period for that funding starts and ends;
18 and
19 (c) the proportion of the total funding amount for flexible
20 funding that will be provided under the plan during each of
21 those funding periods.
22 (3) For the purposes of paragraph (2)(b):
23 (a) a funding period must be no more than 12 months; and
24 (b) the duration of a particular funding period may be different
25 from the duration of any other funding period; and
26 (c) the first funding period for flexible funding must start on the
27 day the plan comes into effect; and
28 (d) each other funding period for flexible funding must start
29 immediately after the end of the immediately preceding
30 funding period for that funding.
31 (4) For the purposes of paragraph (2)(c), the proportion for a particular
32 funding period may be nil.
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1 Rolling over unspent funding
2 (5) The reasonable and necessary budget must provide that the amount
of flexible funding that will be provided during a funding period will be increased above the proportion provided for the funding period under paragraph (2)(c) by an amount equal to the amount by which: (a) the amount of flexible funding that could have been provided under the plan during the immediately preceding funding period; exceeds (b) the amount of flexible funding that was actually provided.
3 Restriction on how flexible funding is spent
6 If the CEO is satisfied that a circumstance mentioned in
subsection (7) exists, the reasonable and necessary budget may provide that the provision of flexible funding under the plan is subject to the restriction that one or more specified proportions of the flexible funding provided during specified funding periods may be spent only on specified NDIS supports for the participant.
7 For the purposes of subsection (6), the circumstances are as
follows: (a) the participant would be likely to suffer physical, mental or financial harm if the flexible funding were not subject to the restriction; (b) section 46 (acquittal of NDIS amounts) has not been complied with in relation to any of the participant’s plans; (c) a circumstance prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: National Disability Insurance Scheme rules may be made in relation to this section under section 32J.
32G Reasonable and necessary budget—stated supports
(1) This section applies if a participant’s reasonable and necessary budget provides that funding will be provided under the plan for a particular stated support or a particular class of stated supports.
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1 Specifying either a total funding amount or requirements for provision or acquisition of stated supports
(2) The reasonable and necessary budget must, for each stated support or class of stated supports, do at least one of the following:
- provide that funding will only be provided under the plan for the support or class of supports up to an amount (the total funding amount) specified for the purposes of this paragraph for the support or class of supports;
- specify requirements under subsection 32H(1) in relation to the acquisition or provision of the support or class of supports.
Note: The total funding amount for a stated support or class of stated supports is worked out under section 32K.
Funding periods for stated supports
(3) Subject to subsection (4), the reasonable and necessary budget must, for each stated support or class of stated supports for which a total funding amount is specified, provide:
- that funding will be provided under the plan for the support or class of supports during periods (each of which is a funding period) specified for the support or class of supports; and
- when each funding period for the support or class of supports starts and ends; and
- the proportion of the total funding amount for the support or class of supports that will be provided under the plan during each funding period for the support or class of supports.
(4) The National Disability Insurance Scheme rules may provide that subsection (3) does not apply in relation to supports prescribed for the purposes of this subsection.
(5) For the purposes of paragraph (3)(b):
- a funding period must be no more than 12 months; and
- the duration of a particular funding period may be different from the duration of any other funding period; and
- the first funding period for a stated support or class of stated supports must start on the day the plan comes into effect;
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1 (d) each other funding period for a stated support or class of 2 stated supports must start immediately after the end of the 3 immediately preceding funding period for that support or 4 class of supports.
5 Rolling over unspent funding
6 (6) If the reasonable and necessary budget provides as mentioned in 7 subsection (3), it must also provide that the amount of funding that 8 will be provided during a funding period for a stated support or 9 class of stated supports will be increased above the proportion 10 provided for the funding period under paragraph (3)(c) by an 11 amount equal to the amount by which: 12 (a) the amount of funding that could have been provided for that 13 stated support or class of stated supports under the plan 14 during the immediately preceding funding period; exceeds 15 (b) the amount of funding that was actually provided for that 16 stated support or class of stated supports.
17 Note: National Disability Insurance Scheme rules may be made in relation to 18 this section under section 32J.
19 32H Reasonable and necessary budget—requirements relating to 20 acquisition or provision of supports
21 (1) A participant’s reasonable and necessary budget may provide that 22 flexible funding, or funding for stated supports, will be provided 23 under the plan for particular supports specified in the plan only if 24 specified requirements are complied with in relation to the 25 acquisition or provision of the supports.
26 (2) Requirements specified under subsection (1) may include the 27 following: 28 (a) a requirement that the supports be provided by a specified 29 person or persons in a specified class; 30 (b) a requirement that a specified process be undertaken before 31 the supports are acquired or provided; 32 (c) a requirement that specified conditions be satisfied in relation 33 to the participant before the supports are acquired or 34 provided;
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- (d) a requirement to comply with any requirements specified in
-
the National Disability Insurance Scheme rules for the -
purposes of this paragraph.
Note: National Disability Insurance Scheme rules may be made in relation to this section under section 32J.
32J Reasonable and necessary budget—National Disability Insurance Scheme rules
The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of section 32F, 32G or 32H, including but not limited to: (a) requirements with which the CEO must comply; and (b) methods or criteria that the CEO is to apply; and (c) matters that the CEO may, must or must not take into account; in making a decision under any of those sections.
32K Reasonable and necessary budget—working out total funding amounts
(1) The following amounts specified in the reasonable and necessary budget must be worked out by applying the information in the needs assessment report for the plan relating to the participant’s eed for NDIS supports in accordance with the method determined under subsection (2): (a) the total funding amount for flexible funding (see paragraph 32E(2)(a)); (b) the total funding amount for a stated support or class of stated supports (see paragraph 32G(2)(a)).
(2) The Minister may, by legislative instrument, determine methods for working out an amount mentioned in paragraph (1)(a) or (b).
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the instrument (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(3) In making a determination under subsection (2), the Minister must have regard to: (a) the principles set out in subsections 4(5) and (11); and
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(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
(4) Without limiting subsection (2), a determination under that subsection may relate to how to take into account: (a) lump sum compensation payments that specifically include an amount for the cost of supports; and (b) lump sum compensation payments that do not specifically include an amount for the cost of supports; and c) periodic compensation payments that the CEO is satisfied include an amount for the cost of supports; and d) amounts that a participant or prospective participant did not receive by way of a compensation payment because he or she entered into an agreement to give up his or her right to compensation; and e) supports in respect of personal injury that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law.
(5) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a determination under subsection (2) of this section may make different provision in relation to: a) different classes of participants; and b) for the purposes of paragraph (1)(b) of this section—different classes of stated supports.
Commented [A27]: No specification of who the assessors
are. Are they qualified in any way for this role. How is
quality ensured?
Basically - NO WAY
Commented [A28]: There is lots of talk about separate assessors - I suggest it would be better (and more efficiently) donе by the planner. I can’t see how plans are developed without this - and if the planner does it, it will be much simpler and easier in every way (avoiding duplicated effort). Frankly, I don’t think this needs legislation - it’s just improving how planning is done now; maybe formalising and sharing the needs assessment as part of the existing system would work better. Note that the timing aspect would then fall under the constraints/requirements for planning outcome.
(6) Despite subsection 14(2) of the Legislation Act 2003, a determination under subsection (2) of this section may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
32L Assessment of participant’s need for supports Planner needs to be able to refer to an expert panel for complex and/or expensive items - avoid sending complex technical decisions to the inexpert (pretty random) AAT.
(1) The CEO must arrange for an assessment of a participant’s need for supports to be undertaken as soon practicable after the CEO commences the preparation of a plan for a participant.
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What an assessment covers
(2)
The assessment must be undertaken using the assessment tool, and Commented [A29]: A singular tool is unachievable. 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.
Commented [A30]: This fails to respect that disability can be compounding. This would mean that a autistic participant’s anxiety or trauma is not considered in assessing needs. That is completely unacceptable.
(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.
Commented [A31]: Should not be optional. Can people insist on what is in “other information” … and can they exclude material from “other information”?
Needs assessment reports
(5)
A report of the assessment must be prepared and given to the CEO as soon as practicable after the assessment is completed.
Commented [A32]: If planners do it, then they can be completed before the plan is finalised. Do participants have a right to see them?
(6)
The report must include any information, and meet any requirements, determined under subsection (8).
Replacement assessments
Commented [A33]: Needs to fully align with s48 and s47A
(7) If:
a) an assessment (the existing assessment) has been undertaken under subsection (1) or paragraph (c) of this subsection in connection with a plan; and b) in deciding whether or not to approve a statement of participant supports for the plan, the CEO is satisfied in accordance with National Disability Insurance Scheme rules made for the purposes of this paragraph that another assessment (the replacement assessment) of the participant’s need for supports should be undertaken; thenc) the CEO must arrange for the replacement assessment to be undertaken; and
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(d) subsections (2) to (6) apply in relation to the replacement assessment in the same way as they applied in relation to the existing assessment; and (e) the replacement assessment is taken to replace the existing assessment; and (f) the needs assessment report prepared for the replacement assessment is taken to replace the needs assessment report prepared for the existing assessment.
Ministerial determinations relating to assessments and reports
(8) The Minister may, by legislative instrument, determine the Commented [A35]: Further unreviewable decisions … following: (a) assessment tools to be used in undertaking assessments under subsection (1); (b) requirements for undertaking assessments under subsection (1); (c) information that must be included in a report prepared under subsection (5); (d) requirements that a report prepared under subsection (5) must meet.
Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the instrument (see regulations made for the purposes of paragraph 54(2)(b) of that Act).
(9) A determination made under subsection (8) may make different provision for different classes of participants. Commented [A36]: So maybe not a single tool as described in s32L(2) above. (10) In making a determination under subsection (8), the Minister must have regard to: (a) the principles set out in subsections 4(5) and (11); and Commented [A37]: What is this? (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
(11) Despite subsection 14(2) of the Legislation Act 2003, a determination under subsection (8) of this section may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
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Subdivision C—Content of old framework plans
32M Application of this Subdivision
This Subdivision applies in relation to a plan for a participant unless Subdivision B applies in relation to the plan.
Note: For when Subdivision B applies in relation to a plan, see subsection 32C(1).
37 Before subsection 33(1)
Insert:
- Participant’s statement of goals and aspirations
38 Before subsection 33(2)
Insert:
- Statement of participant supports
39 After subsection 33(2)
Insert:
- Total funding amounts and funding component amounts
(2A) In addition to the matters mentioned in paragraphs (2)(a) to (e), the statement of participant supports may (and must in the circumstances determined under paragraph (2E)(a)) specify any one or more of the following: (a) that funding will be provided under the plan to or in relation to the participant up to a specified amount (a total funding amount) for all reasonable and necessary supports funded under the plan; (b) for a reasonable and necessary support, or class of such supports, specified under paragraph (2)(b) that is of a kind determined under paragraph (2E)(c)—that funding will be provided under the plan to or in relation to the participant for the support or class of supports up to a specified amount (each of which is a funding component amount);
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1 (c) in any case—that funding will be provided under the plan to
2 or in relation to the participant for reasonable and necessary
3 supports during specified periods (each of which is a funding
4 period).
5 (2B) If the statement specifies that funding will be provided under the
6 plan for reasonable and necessary supports during funding periods,
7 the statement:
8 (a) may specify funding periods: Commented [A40]: Will - even if it’s the whole period of
9 (i) for reasonable and necessary supports funded under the the plan
10 plan generally; or
11 (ii) for a specified reasonable and necessary support, or
12 class of such supports, funded under the plan; and
13 (b) must specify when each funding period starts and ends; and Commented [A41]: That’s the definition of ‘funding
14 (c) must specify, for each funding period: period’
15 (i) unless subparagraph (ii) or (iii) applies—the proportion
16 of the total funding amount that will be provided under
17 the plan during each funding period for reasonable and
18 necessary supports generally; or
19 (ii) if the funding period is for a particular support or class
20 of supports and subparagraph (iii) does not apply—the
21 proportion of the total funding amount that will be
22 provided under the plan during the funding period for
23 the support or class of supports; or
24 (iii) if the funding period is for a particular support or class
25 of supports for which there is a funding component
26 amount—the proportion of the funding component
27 amount that will be provided under the plan during the
28 funding period for the support or class of supports.
29 (2C) For the purposes of paragraph (2B)(b):
30 (a) a funding period must be no more than 12 months; and Commented [A42]: Why?
31 (b) the duration of a particular funding period may be different
32 from the duration of any other funding period; and Commented [A43]: Implied if there are multiple funding
33 (c) if the funding period is for reasonable and necessary supports periods
34 funded under the plan generally:
35 (i) the first funding period must start on a day worked out
36 in accordance with a determination under
37 subsection (2E); and
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1 (ii) each other funding period must start immediately after
2 the end of the immediately preceding funding period;
3 and
4 (d) if the funding period is for a particular reasonable and
5 necessary support or class of such supports:
6 (i) the first funding period for the support or class of
7 supports must start on a day worked out in accordance
8 with a determination under subsection (2E); and
9 (ii) each other funding period for the support or class of
10 supports must start immediately after the end of the
11 immediately preceding funding period for that support
12 or class of supports.
13 (2D) A total funding amount or funding component amount specified in
14 the statement of participant supports must be worked out in
15 accordance with a determination under subsection (2E).
16 (2E) The Minister may, by legislative instrument, determine: Commented [A44]: I’m not sure I understand what this
17 (a) circumstances in which a statement of participant supports means.
Is the purpose of this to have the Minister create rules that 18 must specify that funding will be provided under the plan as
bind the AAT, or is there something else happening here?
19 mentioned in one or more of paragraphs (2A)(a), (b) and (c);
20 and
21 (b) how to work out a total funding amount for reasonable and
22 necessary supports for the purposes of paragraph (2A)(a); Commented [A45]: I doubt we need creative accounting
23 and by Rule. Proper accounting practice should just be implied by
the legislation. 24 (c) kinds of supports for the purposes of paragraph (2A)(b); and
25 (d) how to work out a funding component amount for a support,
26 or class of supports, that is of a kind determined under
27 paragraph (c) of this subsection; and
28 (e) how to work out when the first funding period for reasonable
29 and necessary supports generally, or for a particular
30 reasonable and necessary support or class of such supports, is
31 to start; and
32 (f) any one or more of the following:
33 (i) requirements with which the CEO must comply;
34 (ii) methods or criteria that the CEO is to apply;
35 (iii) matters that the CEO may, must or must not take into
36 account;
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1 in working out a total funding amount or a funding 2 component amount, or deciding any matter for the purposes 3 of subsection (2B) or (2C).
4 Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not 5 apply to the instrument (see regulations made for the purposes of 6 paragraph 54(2)(b) of that Act).
7 (2F) Despite subsection 14(2) of the Legislation Act 2003, a 8 determination under subsection (2E) of this section may make 9 provision for or in relation to a matter by applying, adopting or 10 incorporating any matter contained in an instrument or other 11 writing as in force or existing from time to time.
Commented [A46]: I don’t understand this. I am concerned when a standard provision of something like a bit of the Legislation Act 2003 is waived.
-
How supports may be specified in plan
-
40 Before subsection 33(4)
-
Insert:
Time limits for approving statement of participant supports
-
-
41 Before subsection 33(5)
-
Insert:
Requirements for CEO in approving statement of participant supports
-
-
42 At the end of subsection 33(5) Add: ; and (g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
-
43 Before subsection 33(6)
-
Insert:
Agency-managed funding—supports to be provided only by a registered NDIS provider
-
-
44 Before subsection 33(7)
- Insert:
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Plan may deal with additional matters
-
Before subsection 33(8)
- Insert:
- Statement of goals and aspirations to be recorded in writing
- Insert:
-
Before paragraph 34(1)(a)
- Insert:
- (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24)
redactedor the early intervention requirements (see section 25); Commented [A47]: This makes it easy for the NDIS to ignore essential disability related needs. The NDIS can choose a person’s most minimal disability for eligibility (the minimal “disability requirement”), then ignore needs arising from their further severe disability. It seems to me that this clause is designed to deny people proper support for people with complex needs.
- (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24)
- Insert:
-
Paragraph 34(1)(f) Repeal the paragraph, substitute:
(f) the support is an NDIS support for the participant. -
Subsection 34(2): Omit “(1)(a)”, substitute “(1)(aa).”
-
At the end of subsection 35(4): Add:
; and (d) supports in respect of personal injury that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law -
Before section 36:
- Insert:
- Subdivision D—Information and reports
- Insert:
-
Section 36 (heading) Repeal the heading, substitute: No. , 2024 National Disability Insurance Scheme Amendment (Getting the NDIS
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1 36 Requesting information and reports
2 52 Subsection 36(1)
Repeal the subsection, substitute:
(1) The CEO may make one or more requests under subsection (2) for any of the following purposes: (a) the undertaking of an assessment under section 32L for a participant; (b) preparing a statement of participant supports for a participant; (c) deciding whether to approve a statement of participant supports for a participant.
3 53 Paragraph 36(2)(a)
Omit “the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports”, substitute “a purpose mentioned in paragraph (1)(a), (b) or (c)”. Commented [A48]: Leave the a, b or c bit out.
4 54 Subsection 36(3)
Repeal the subsection (including the note), substitute:
(3) If a request under subsection (2) is made for a purpose mentioned in paragraph (1)(a): (a) the request must specify a period of at least 28 days for the information or reports to be received by the CEO; and Commented [A49]: So Agency timeframes are set by Rules (at the will of the Agency) but participant timesframes are legislated! (b) if the CEO does not receive the information or reports within the period specified in the request—the CEO must:
(i) unless subparagraph (ii) preparation of the new framework applies—suspendIplan;I or the Commented [A50]: Suspend the whole plan - that maybe overkill (ii) if the CEO is satisfied that it was reasonable for the participant or the other person mentioned in paragraph (2)(a) not to have complied with the request within that period—make a further request under subsection (2).
Note: The period specified in the request may be varied (see subsection 33(3) of the Acts Interpretation Act 1901).
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1
(4) If the CEO suspends the preparation of a new framework plan for a participant under subparagraph (3)(b)(i): (a) the CEO must give the participant written notice of the decision; and (b) the statement of participant supports in any other plan that is in effect for the participant (whether an old framework plan or a new framework plan) is suspended from the day specified in the notice for the purposes of this paragraph until the day the CEO receives the information or reports requested; and Commented [A51]: More overkill (c) the CEO must recommence the preparation of the new framework plan if the CEO subsequently receives the information or reports.
5
(5) If a request under subsection (2) is made for a purpose mentioned in paragraph (1)(b) or (c), the CEO: (a) may prepare the statement of participant supports, or decide whether to approve a statement of participant supports, before all the information and reports requested are received by the CEO; but Commented [A52]: Didn’t is say planning was suspended (b) must give the participant or the other person mentioned in above? paragraph (2)(a) a reasonable opportunity to provide the information and reports.
Note: If information or reports requested for a purpose mentioned in paragraph (1)(b) or (c) are provided after the statement of participant supports is approved, the plan can be varied or can be reassessed and can be replaced if necessary.
55 Before section 37
Insert: Subdivision E—When a plan is in effect etc.
56 Subsection 37(3)
Repeal the subsection, substitute: (3) A participant’s plan ceases to be in effect at the earliest of the following times: (a) when the plan is replaced by another plan (see subsection (4));
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(b) if the plan is a new framework plan—immediately after the end of the maximum period of effect specified in the plan under paragraph 32D(2)(d); (c) in any case—when the participant ceases to be a participant.
Note: A new framework plan may be varied to change the period mentioned in paragraph (b) (see paragraph 47A(1AA)(d)).
(4) For the purposes of paragraph (3)(a), if a plan (the replacement plan) comes into effect for a participant while another plan is in effect, the other plan is replaced by the replacement plan.
57 Before paragraph 41(1)(a) Insert: (aa) as mentioned in paragraph 36(4)(b) (which deals with failure to provide information or reports for an assessment under section 32L); and
58 Paragraph 41(2)(a) Repeal the paragraph, substitute: (a) a person is not entitled to be paid NDIS amounts so far as the amounts relate to supports that are acquired or provided during that period; and
59 At the end of section 41 Add:
(3) The National Disability Insurance Scheme rules may specify circumstances in which specified supports are taken to be, or not to be, acquired or provided during the period of suspension for the purposes of subsection (2).
60 Paragraph 42(1)(a) Omit “identified in”, substitute “funded under”.
61 Subsection 42(2) After “paragraph”, insert “32D(2)(f) or”.
62 Subsection 43(2) Omit “](3)”
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1 63 After subsection 43(2)
2 Insert:
3 (2A) If the plan is a new framework plan:
4 (a) the CEO may, if satisfied that a circumstance mentioned in
5 subsection (2C) exists, decide that:
6 (i) a person mentioned in subsection (2B) is to manage a
7 particular proportion of flexible funding provided under
8 the plan; or
9 (ii) a person mentioned in subsection (2B) is to manage
10 funding provided under the plan for a particular stated
11 support or class of stated supports; and
12 (b) the statement of participant supports in the plan must give
13 effect to the decision.
14 Note: The CEO may make more than one decision under subparagraph (a)(i)
15 or (ii) for a particular plan if there is more than one person mentioned
16 in subsection (2B) for whom such a decision can be made.
17 (2B) For the purposes of subparagraphs (2A)(a)(i) and (ii), the persons
18 are as follows:
19 (a) the Agency;
20 (b) the participant, if the participant has made a plan
21 management request covered by paragraph (1)(a) and the
22 participant does not have a plan nominee;
23 (c) if:
24 (i) the participant has a plan nominee; and
25 (ii) the participant has made a plan management request
26 covered by paragraph (1)(a); and
27 (iii) the decision would be consistent with the terms of the
28 plan nominee’s appointment;
29 the plan nominee;
30 (d) a registered plan management provider, if the participant has
31 made a plan management request covered by
32 paragraph (1)(b) that nominates the provider.
33 (2C) For the purposes of paragraph (2A)(a), the circumstances are as
34 follows:
35 (a) the participant would be likely to suffer physical, mental or
36 financial harm were the CEO to not make the decision;
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1 (b) section 46 (acquittal of NDIS amounts) has not been 2 complied with in relation to the plan or any of the 3 participant’s previous plans; 4 (c) a circumstance prescribed by the National Disability 5 Insurance Scheme rules for the purposes of this paragraph.
6 (2D) The National Disability Insurance Scheme rules may make 7 provision for determining any matter for the purposes of 8 paragraph (2A)(a), including but not limited to: 9 (a) requirements with which the CEO must comply; and 10 (b) methods or criteria that the CEO is to apply; and 11 (c) matters that the CEO may, must or must not take into 12 account; 13 in making any decision under paragraph (2A)(a).
Commented [A53]: The NDIS, under the direction of the CEO, set’s the rules for the CEO? I don’t think that will work well.
14 64 Paragraph 43(3)(d)
15 After “44(1)(b)”, insert “or (c)”.
16 65 After subsection 43(4) 17 Insert:
18 (4A) If: 19 (a) a participant makes a plan management request covered by 20 paragraph (1)(b); and 21 (b) subsection 44(2AA) applies in relation to the registered plan 22 management provider; 23 the statement of participant supports in the plan may provide for 24 the funding for supports under the plan to be managed by the 25 Agency to the extent covered by that subsection.
26 66 Paragraph 43(6)(e) 27 After “44(2A)(b)”, insert “or (c)”.
28 67 Subsection 43(7) 29 Repeal the subsection, substitute:
30 (7) The following provisions have effect: 31 (a) paragraph (2A)(b) does not apply to funding to the extent that 32 subsection (3), (4) or (6) applies to the funding;
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- (b) subsection (3) or (4) does not apply to funding to the extent that subsection (5) or (6) applies to the funding;
- (c) subsection (5) does not apply to funding to the extent that paragraph (2A)(b) applies to the funding.
68 At the end of subsection 44(1) Add: ; or (c) the CEO is satisfied that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the participant were to manage the funding for supports under the plan to a particular extent.“ Commented [A54]: That is very vague - so no requirement for evidence? In practice, lots of people make these decisions now, and the CEO overturns them if one can bring the specific issue before the CEO (or a high enough official).
69 After subsection 44(2) Insert:
(2AA) For the purposes of paragraph 43(4A)(b), this subsection applies in relation to a registered plan management provider if the CEO is satisfied that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the provider were to manage the funding for supports under the plan to a particular extent.
70 At the end of subsection 44(2A) Add: ; or (c) the CEO is satisfied that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the plan nominee were to manage the funding for supports under the plan to a particular extent.
71 Before subsection 44(3) Insert:
National Disability Insurance Scheme rules relating to unreasonable risk
72 Subsection 44(3) Omit “is to have regard”, substitute “is, or is not, to have regard”.
73 At the end of section 44 Add:
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1 (4) The National Disability Insurance Scheme rules may prescribe 2 circumstances in which the management of funding for supports 3 under a plan to a particular extent by a participant, a registered plan 4 management provider or a plan nominee is taken to present an 5 unreasonable risk to a participant.
6 National Disability Insurance Scheme rules relating to compliance 7 with section 46
8 (5) The National Disability Insurance Scheme rules may prescribe 9 criteria the CEO is to apply and matters to which the CEO is, or is 10 not, to have regard in considering whether section 46 (acquittal of 11 NDIS amounts) would be unlikely to be complied with if any of 12 the following were to manage the funding for supports under a plan 13 to any extent: 14 (a) the participant; 15 (b) a registered plan management provider; 16 (c) a plan nominee.
17 74 At the end of section 45 18 Add:
19 (4) The Agency must not pay an NDIS amount to any person if the 20 payment would result in: 21 (a) if a participant’s new framework plan provides that flexible 22 funding will be provided under the plan: 23 (i) the total amount of flexible funding provided under the 24 plan exceeding the total funding amount specified in the 25 plan under paragraph 32E(2)(a); or 26 (ii) the total amount of flexible funding provided under the 27 plan during a funding period exceeding the amount of 28 funding that is to be provided under the plan during the 29 funding period; or 30 (b) if a participant’s new framework plan provides that funding 31 will be provided under the plan for a stated support or class 32 of stated supports: 33 (i) the total amount of funding provided under the plan for 34 the stated support or class of stated supports exceeding 35 any total funding amount specified in the plan under 36 paragraph 32G(2)(a); or
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1 (ii) the total amount of funding provided under the plan for
2 the stated support or class of stated supports during a
3 funding period for the support or class of supports
4 exceeding the amount of funding that is to be provided
5 under the plan during the funding period for the support
6 or class of supports; or
7 (c) the total amount of funding provided under an old framework
8 plan for reasonable and necessary supports for the participant
9 exceeding any total funding amount for such supports; or
10 (d) the total amount of funding provided under an old framework
11 plan for a support or class of supports exceeding any funding
12 component amount for the support or class of supports; or
13 (e) the total amount of funding provided under an old framework
14 plan for a support or class of supports during a funding
15 period for the support or class of supports exceeding the
16 amount of funding that is to be provided under the plan
17 during the funding period for the support or class of supports.
18 (5) Subsection (4) does not apply in relation to the payment of an
19 NDIS amount if:
20 (a) the CEO is satisfied that there are exceptional circumstances
21 justifying the making of the payment without:
22 (i) varying the participant’s plan; or
23 (ii) reassessing the participant’s plan and preparing a
24 replacement plan for the participant; and
25 (b) National Disability Insurance Scheme rules are in force for
26 the purposes of subsection (6).
27 (6) The National Disability Insurance Scheme rules may prescribe
28 what constitutes exceptional circumstances for the purposes of
29 paragraph (5)(a).
30 75 Subsection 46(1)
31 Repeal the subsection, substitute:
32 Requirement to spend money only on NDIS supports and in
33 accordance with plan
34 (1) A participant who receives an NDIS amount, or a person who
35 receives an NDIS amount on behalf of a participant:
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 (a) may spend the money only on NDIS supports for the 2 participant; and 3 (b) must spend the money in accordance with the participant’s 4 plan (subject to paragraph (a)).
5 Note 1: A failure to comply with this subsection (including due to the 6 operation of subsection (1A) or (1B)) may lead to a variation of the 7 participant’s plan under section 47A: 8 (a) to change the management of the funding for supports under the 9 plan (see sections 43 and 74); or 10 (b) for a new framework plan—to specify a proportion of flexible 11 funding that may be spent only on specified NDIS supports for 12 the participant (or to change such a proportion); or 13 (c) for any plan—to reduce the duration of funding periods for 14 particular funding under the plan and the amount of funding that 15 will be provided during any particular funding period.
16 Note 2: See also subsection 182(3) (debts due to the Agency).
17 (1A) If: 18 (a) a participant acquires a support for themselves or a support is 19 provided to a participant; and 20 (b) either: 21 (i) the support is not an NDIS support for the participant; 22 or 23 (ii) the participant’s plan is not complied with in connection 24 with the acquisition or provision of the support; and 25 (c) a payment is made under the National Disability Insurance 26 Scheme in relation to the support, whether to the participant 27 or another person; 28 then the participant is taken for the purposes of subsection (1): 29 (d) to have received an NDIS amount equal to the payment; and 30 (e) if subparagraph (b)(i) of this subsection applies—to have 31 spent that money other than on NDIS supports for the 32 participant; and 33 (f) if subparagraph (b)(ii) of this subsection applies—to have not 34 spent that money in accordance with the participant’s plan.
35 (1B) If: 36 (a) a person (the first person) other than a participant acquires a 37 support for a participant or provides a support to a 38 participant; and
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Amendment of the National Disability Insurance Scheme Act 2013 Part 1
1 (b) either:
2 (i) the support is not an NDIS support for the participant;
3 or
4 (ii) the participant's plan is not complied with in connection
5 with the acquisition or provision of the support; and
6 (c) a payment is made under the National Disability Insurance
7 Scheme in relation to the support, whether to the first person
8 or any other person;
9 then the first person is taken for the purposes of subsection (1):
10 (d) to have received an NDIS amount on behalf of the participant
11 that is equal to the payment; and
12 (e) if subparagraph (b)(i) of this subsection applies—to have
13 spent that money other than on NDIS supports for the
14 participant; and
15 (f) if subparagraph (b)(ii) of this subsection applies—to have not
16 spent that money in accordance with the participant’s plan.
Requirements relating to retention of records
76 Paragraph 46B(2)(b)
Omit "reasonable and necessary supports specified in", substitute
"supports (other than general supports) funded under".
77 Subparagraph 47A(1)(a)(i)
Omit "subsection (1A)", substitute "subsection (1AA) (for a new framework plan) or (1A) (for an old framework plan)".
78 After subsection 47A(1)
Insert:
Permitted variations—new framework plans
(1AA) For the purposes of subparagraph (1)(a)(i), the following variations
of a new framework plan are covered:
(a) a variation of the participant's reasonable and necessary
budget covered by subsection (1AB);
(b) a variation relating to the general supports (if any) that will
be provided to or in relation to the participant under the plan;
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 (c) a variation of the statement of participant supports included 2 in the plan in relation to the management of: 3 (i) the funding for supports under the plan; or 4 (ii) other aspects of the plan; 5 (d) a variation of the maximum period of effect specified in the 6 plan under paragraph 32D(2)(d); 7 (e) a variation of the circumstances in which the Agency must 8 reassess the plan under this Division.
9 Note 1: A statement of participant supports in a participant’s plan must give 10 effect to the plan management request of a participant except in 11 certain circumstances (see subsection 43(2)).
12 Note 2: In varying the participant’s plan in relation to the statement of
13 participant supports, the CEO must have regard to the matters set out
14 in subsection (2A).
15 (1AB) For the purposes of paragraph (1AA)(a), the following variations
16 of a participant’s reasonable and necessary budget are covered: Commented [A55]: Is this different from SOPS? If so,
17 (a) a variation of: how?
18 (i) the total funding amount for flexible funding; or
19 (ii) the total funding amount for a stated support or class of
20 stated supports;
21 for the purposes of dealing with a variation of the maximum
22 period of effect specified in the plan under paragraph
23 32D(2)(d);
24 (b) a variation to provide for a total funding amount for a stated
25 support or class of stated supports;
26 (c) a variation of the number or duration of the funding periods
27 for flexible funding, or for a stated support or class of stated
28 supports;
29 (d) a variation of the proportion of the total funding amount for
30 flexible funding, or for a stated support or class of stated
31 supports, that will be provided under the plan during one or
32 more funding periods;
33 (e) a variation to provide for:
34 (i) funding periods for a stated support or class of stated
35 supports (disregarding paragraph 32G(5)(c) for this
36 purpose); and
44 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
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1 (ii) the proportion of the total funding amount for the stated
2 support or class of stated supports that will be provided
3 under the plan during each funding period;
4 (f) a variation of a restriction provided for under subsection
5 32F(6);
6 (g) if the CEO is satisfied that a circumstance mentioned in
7 subsection 32F(7) exists—a variation to provide for a
8 restriction under subsection 32F(6);
9 (h) if the CEO is satisfied that none of the circumstances
10 mentioned in subsection 32F(7) exist—a variation to remove
11 a restriction imposed under subsection 32F(6);
12 (i) a variation to provide for, change, add or remove a
13 requirement under subsection 32H(1) relating to the
14 acquisition or provision of supports;
15 (j) a variation of the participant’s reasonable and necessary
16 budget if:
17 (i) the CEO is satisfied that the participant requires crisis or
18 emergency funding as a result of a significant change to
19 the participant’s support needs; or
20 (ii) after the participant’s plan comes into effect, the CEO
21 receives information in response to a request that had
22 been made under subsection 36(2) or 50(2) in relation to
23 the plan (other than a request made under
24 subsection 50(2) for the purposes of varying the plan on
25 the CEO’s own initiative), and the variation relates to
26 that information; or
27 (iii) the CEO is satisfied that a circumstance prescribed by
28 the National Disability Insurance Scheme rules for the
29 purposes of this subparagraph exists in relation to the
30 participant.
31 Note: Information mentioned in subparagraph (j)(ii) could relate to a support
32 such as an item of assistive technology or a home modification.
33 Permitted variations—old framework plans
34 79 Subsection 47A(1A)
35 Omit “a participant’s” (first occurring), substitute “an old framework”.
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1 80 Paragraph 47A(1A)(a) 2 Repeal the paragraph, substitute: 3 (a) a variation of the plan’s reassessment date or the 4 circumstances in which the Agency must reassess the plan 5 under this Division; 6 (ab) a variation of: 7 (i) a total funding amount for the reasonable and necessary 8 supports specified in the plan; or 9 (ii) a funding component amount for a support or class of 10 supports funded under the plan; 11 for the purposes of dealing with a variation of the plan’s 12 reassessment date; 13 (ac) a variation to specify any one or more of the following in 14 accordance with subsections 33(2A) to (2D) and a determination in force for the purposes of subsection 33(2E): 15 (i) a total funding amount for the reasonable and necessary 16 supports specified in the plan; 17 (ii) a funding component amount for a reasonable and 18 necessary support, or a class of such supports, specified 19 in the plan; 20 (iii) funding periods for funding provided under the plan for 21 reasonable and necessary supports generally, a 22 particular reasonable and necessary support, or a class 23 of such supports; Commented [A56]: Isn’t this just a long way of saying 24 (iv) if funding periods are specified under subparagraph (iii) 25 and subparagraphs (v) and (vi) do not apply—the 26 proportion of the total funding amount that will be 27 provided under the plan during each funding period for 28 reasonable and necessary supports generally; 29 (v) if funding periods are specified under subparagraph (iii) 30 for a particular support or class of supports and 31 subparagraph (vi) does not apply—the proportion of the 32 total funding amount that will be provided under the 33 plan during each funding period for the support or class 34 of supports; 35 (vi) if funding periods are specified under subparagraph (iii) 36 for a particular support or class of supports for which 37 there is a funding component amount—the proportion
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Amendment of the National Disability Insurance Scheme Act 2013 Part 1
- 1 of the funding component amount that will be provided
- 2 under the plan during the funding period for the support
- 3 or class of supports;
- 4 (ad) a variation of the number or duration of the funding periods
- 5 for funding provided under the plan for reasonable and
- 6 necessary supports generally, or for a particular support or
- 7 class of supports;
- 8 (ae) a variation of the proportion of the total funding amount that
- 9 will be provided under the plan for reasonable and necessary
- 10 supports generally, or for a particular support or class of
- 11 supports, during one or more funding periods;
- 12 (af) a variation of the proportion of a funding component amount
- 13 for a support or class of supports that will be provided under
- 14 the plan for the support or class of supports during one or
- 15 more funding periods;
- 16 (ag) a variation relating to the general supports (if any) that will
- 17 be provided to or in relation to the participant under the plan;
81 Subsection 47A(1A) (note 1) After “mentioned”, insert “in”.
82 After subsection 47A(1A) Insert:
Conditions not limited
(1B) The fact that a paragraph in subsection (1AA), (1AB) or (1A) covers only certain kinds of variations does not limit the power under paragraph (1)(b) for the National Disability Insurance Scheme rules to prescribe conditions that have the effect of limiting the kinds of variations that may be made under subsection (1).
83 After subsection 47A(2) Insert:
Requirements for CEO—new framework plans
(2A) In varying a new framework plan in relation to the statement of participant supports, the CEO must:
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 (a) have regard to the participant’s statement of goals and
2 aspirations; and Commented [A57]: So, no requirement to address the
participant’s goals & aspiration - this allows them to be 3 (b) be satisfied as mentioned in paragraph 32D(6)(b) in relation
to any general supports to be provided; and
4
5 (c) have regard to the principle that a participant should manage Commented [A58]: No requirement!
6 the participant’s plan to the extent that the participant wishes How would this ever be tested?
7 to do so; and
8 (d) have regard to the operation and effectiveness of the plan and
9 any previous plans of the participant; and
10 (e) have regard to whether section 46 (acquittal of NDIS
11 amounts) was complied with in relation to the plan and any
12 previous plans of the participant; and
13 (f) be satisfied of any matters specified in the National
14 Disability Insurance Scheme rules for the purposes of this
15 paragraph.
84 Subsection 47A(3) (at the end of the heading) Add “—old framework plans”.
85 Subsection 47A(3) Omit “the participant’s” (first occurring), substitute “an old framework”.
86 At the end of subsection 47A(3) Add: ; and (g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to the plan and any previous plans of the participant.
87 At the end of subsection 48(1) Add:
Note: This section applies subject to section 49B (no reassessment of old
framework plan if participant to have new framework plans).
88 Subsection 48(3) (note) Omit “Note”, substitute “Note 1”.
48 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
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1 At the end of subsection 48(3)
Add:
Note 2: Section 49B (no reassessment of old framework plan if participant to have new framework plans) may prevent the CEO from making a decision under paragraph (b) of this subsection.
2 At the end of subsection 49(1)
Add:
Note: This section applies subject to section 49B (no reassessment of old framework plan if participant to have new framework plans).
3 At the end of section 49A
Add:
Note: This section applies subject to section 49B (no reassessment of old framework plan if participant to have new framework plans).
4 After section 49A
Insert:
49B No reassessment of old framework plan if participant to have new framework plans
Despite sections 48 to 49A, the CEO must not conduct a reassessment of an old framework plan if the participant has been given a notice under subsection 32B(2) that the participant is to have new framework plans. Commented [A59]: What is the purpose of this? Can we not learn from the past … especially if the participant feels there may be valuable lessons from their experience?
5 Subparagraphs 48(7)(b)(ii) and 49(1)(b)(ii)
After “subsection”, insert “32D(2) or”.
6 Subsection 73B(1) (note)
Omit “subsection 33(6), which provides”, substitute “subsections 32D(7) and 33(6), which provide”.
7 Subsection 74(3)
Omit “](4) and (5))”, substitute “)(3A) to (5).”
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
1 96 After subsection 74(3) 2 Insert:
3 (3A) If the plan is a new framework plan: 4 (a) the CEO may, if satisfied that a circumstance mentioned in 5 subsection (3C) exists, decide that: 6 (i) a person mentioned in subsection (3B) is to manage a 7 particular proportion of flexible funding provided under 8 the plan; or 9 (ii) a person mentioned in subsection (3B) is to manage 10 funding provided under the plan for a particular stated 11 support or class of stated supports; and 12 (b) the statement of participant supports in the plan must give 13 effect to the decision.
14 Note: The CEO may make more than one decision under subparagraph (a)(i) 15 or (ii) for a particular plan if there is more than one person mentioned 16 in subsection (3B) for whom such a decision can be made.
17 (3B) For the purposes of subparagraphs (3A)(a)(i) and (ii), the persons 18 are as follows: 19 (a) the Agency; 20 (b) the person mentioned in subsection (1), if the person has 21 made a request covered by paragraph (2)(a); 22 (c) a registered plan management provider, if the person 23 mentioned in subsection (1) has made a request covered by 24 paragraph (2)(b) that nominates the provider.
25 (3C) For the purposes of paragraph (3A)(a), the circumstances are as 26 follows: 27 (a) the participant would be likely to suffer physical, mental or 28 financial harm were the CEO to not make the decision; 29 (b) section 46 (acquittal of NDIS amounts) has not been 30 complied with in relation to the plan or any of the 31 participant’s previous plans; 32 (c) a circumstance prescribed by the National Disability 33 Insurance Scheme rules for the purposes of this paragraph.
34 (3D) Paragraph (3A)(b) does not apply to funding to the extent that 35 subsection (4) or (4A) applies to the funding.
50 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
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1 97 Paragraph 74(4)(b)
2 Repeal the paragraph, substitute:
3 (b) to a particular extent, if the CEO is satisfied:
4 (i) that management of the plan to that extent would
5 present an unreasonable risk to the participant; or
6 (ii) that management of the plan to that extent would permit
7 the person to manage matters that are prescribed by the
8 National Disability Insurance Scheme rules as being
9 matters that must not be managed by the person; or
10 (iii) that section 46 (acquittal of NDIS amounts) would be
11 unlikely to be complied with if the person were to
12 manage the funding for supports under the plan to that
13 extent.
14 98 After subsection 74(4)
15 Insert:
16 (4A) If:
17 (a) a person mentioned in subsection (1) has made a request
18 covered by paragraph (2)(b); and
19 (b) the CEO is satisfied that the management of the funding for
20 supports under the plan to a particular extent by the
21 registered plan management provider nominated by the
22 person would present an unreasonable risk to the participant;
23 the statement of participant supports in the participant’s plan must
24 not provide that the nominated provider is to manage the funding
25 for supports under the plan to that extent.
26 99 Subsection 74(6)
27 Repeal the subsection, substitute:
28 (6) The National Disability Insurance Scheme rules may make
29 provision for determining any matter for the purposes of this
30 section, including but not limited to:
31 (a) requirements with which the CEO must comply; and
32 (b) methods or criteria that the CEO is to apply; and
33 (c) matters that the CEO may, must or must not take into
34 account;
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1 in making any decision under this section.
2 100 Subsection 99(1) (table item 3, column 2) 3 Omit “section 30”, substitute “subsection 30(1) or (5), 4 paragraph 30A(1)(c) or subsection 30A(7)”.
5 101 Subsection 99(1) (table item 4, column 2) 6 After “subsection”, insert “32D(2) or”.
7 102 Subsection 99(1) (after table item 4) 8 Insert: 4A a decision to suspend subparagraph 36(3)(b)(i) CEO the preparation of a new framework plan for a participant
9 103 Subparagraph 101(2)(a)(i) 10 After “subsection”, insert “32D(2) or”.
11 104 At the end of subsection 120(2) 12 Add:
13 Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not 14 apply to the instrument (see regulations made for the purposes of 15 paragraph 54(2)(b) of that Act).
16 105 At the end of section 125B 17 Add:
18 Note: Part 4 of Chapter 3 (sunetting) of the Legislation Act 2003 does not 19 apply to the instrument (see regulations made for the purposes of 20 paragraph 54(2)(b) of that Act).
21 106 Paragraph 144(1)(c) 22 Omit “provides reasonable and necessary”, substitute “funds or 23 provides”.
24 107 At the end of subsection 172(3) 25 Add:
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1 Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not 2 apply to the instrument (see regulations made for the purposes of 3 paragraph 54(2)(b) of that Act).
108 Section 179 Omit “reasonable and necessary”.
109 At the end of section 180C Add:
Note: Part 4 of Chapter 3 (sunetting) of the Legislation Act 2003 does not
apply to the instrument (see regulations made for the purposes of
paragraph 54(2)(b) of that Act).
110 At the end of subsection 181J(2) Add:
Note: Part 4 of Chapter 3 (sunetting) of the Legislation Act 2003 does not
apply to the instrument (see regulations made for the purposes of
paragraph 54(2)(b) of that Act).
111 At the end of subsection 181N(4) Add:
Note: Part 4 of Chapter 3 (sunetting) of the Legislation Act 2003 does not
apply to the instrument (see regulations made for the purposes of
paragraph 54(2)(b) of that Act).
112 At the end of subsection 181Y(8) Add:
Note: Part 4 of Chapter 3 (sunetting) of the Legislation Act 2003 does not
apply to the instrument (see regulations made for the purposes of
paragraph 54(2)(b) of that Act).
113 At the end of subsection 209(1) Add:
Note: Part 4 of Chapter 3 (sunetting) of the Legislation Act 2003 does not
apply to National Disability Insurance Scheme rules (see regulations
made for the purposes of paragraph 54(2)(b) of that Act).
114 Subsection 209(2) Omit “section 14”, substitute “subsection 14(2)”.
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1 115 Subsection 209(8) (table item 1, column headed 2 “Description”, before paragraph (aa)) 3 Insert: 4 (aaa) paragraphs 10(b) and (c);
5 116 Subsection 209(8) (table item 1, column headed 6 “Description”, after paragraph (c)) 7 Insert: 8 (ca) subsection 29(3); 9 (cb) subsections 30A(1) and (2) and paragraph (9)(a); 10 (cc) subparagraph 32D(6)(b)(ii), paragraph 32D(6)(f) and subsection 32D(8); 11 (cd) subsection 32E(4); 12 (ce) paragraph 32F(7)(c); 13 (cf) subsection 32G(4); 14 (cg) paragraph 32H(2)(d); 15 (ch) section 32J; 16 (ci) paragraph 32L(7)(b);
17 117 Subsection 209(8) (table item 1, column headed 18 “Description”, paragraph (ea)) 19 Repeal the paragraph, substitute: 20 (ea) subsection 41(3); 21 (eaa) paragraph 43(2C)(c) and subsection 43(2D); 22 (eab) subparagraph 44(1)(b)(ii) and subsections 44(3), (4) and (5);
23 118 Subsection 209(8) (table item 1, column headed 24 “Description”, paragraph (eb)) 25 After “paragraph 47A(1)(b)”, insert “, subparagraph 47A(1AB)(j)(iii), 26 paragraph 47A(2A)(f)“.
27 119 Subsection 209(8) (table item 1, column headed 28 “Description”, paragraph (h)) 29 Repeal the paragraph, substitute: 30 (h) paragraph 74(3C)(c), subparagraph 74(4)(b)(ii) and subsection 74(6);
54 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
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Amendment of the National Disability Insurance Scheme Act 2013 Part 1
-
120 Subsection 209(8) (table item 2, column headed
- “Description”, paragraph (a))
- Repeal the paragraph.
-
121 Subsection 209(8) (table item 3, column headed
- “Description”, after paragraph (a)
- Insert:
- (ab) paragraph 32(4)(b);
- (ac) paragraph 32D(4)(a);
-
122 Subsection 209(8) (table item 4, column headed
- “Description”, after paragraph (a)
- Insert:
-
(aa) subsection 32B(3);
No. , 2024 National Disability Insurance Scheme Amendment (Getting the NDIS 55
-
Schedule 1
Main amendments
Part 2 — Consequential amendments
1 Part 2—Consequential amendments
2 Legislation (Exemptions and Other Matters) 3 Regulation 2015
4 123 Section 12 (after table item 42AB) 5 Insert: 42AC Each of the following: (a) National Disability Insurance Scheme rules, within the meaning of the National Disability Insurance Scheme Act 2013; (b) any other instrument made under that Act
56 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
Main amendments Schedule 1
Application and transitional provisions Part 3
1 Part 3—Application and transitional provisions
2 124 NDIS supports
(1)
This item applies until National Disability Insurance Scheme rules are first made for the purposes of paragraph 10(b) of the National Disability Insurance Scheme Act 2013, as inserted by this Schedule.
(2)
Subject to subitems (3), (4) and (5), a support is taken to be an NDIS support for a person for the purposes of the National Disability Insurance Scheme Act 2013 if:
- (a) the requirement in paragraph 10(a) of that Act (as inserted by this Schedule) is met in relation to the support and the person; and
- (b) the support is in a class of supports mentioned in a table in the Applied Principles and Tables of Support under the heading “REASONABLE AND NECESSARY NDIS SUPPORTS FOR ELIGIBLE PEOPLE”; and
- (c) if a heading in the table indicates that supports listed under that heading are only for people in a particular class—the person is a person in that class.
(3)
A support is taken to not be an NDIS support for a person for the purposes of the National Disability Insurance Scheme Act 2013 if the support is in a class of supports mentioned in a table in the Applied Principles and Tables of Support under the heading “OTHER PARTIES”.
(4)
A support is taken to not be an NDIS support for a person for the purposes of the National Disability Insurance Scheme Act 2013 if:
- (a) National Disability Insurance Scheme rules made for the purposes of subsection 35(1) of that Act prescribe reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
- (b) the support is a support of the prescribed kind.
(5)
A support is taken to not be an NDIS support for a person for the purposes of the National Disability Insurance Scheme Act 2013 if:
Schedule 1 Main amendments
Part 3 Application and transitional provisions
1 (a) National Disability Insurance Scheme rules made for the
2 purposes of subsection 35(1) of that Act prescribe reasonable
3 and necessary supports or general supports that will not be
4 funded or provided under the National Disability Insurance
5 Scheme for prescribed participants; and
6 (b) the support is a support of the prescribed kind; and
7 (c) the person is a participant of the prescribed kind, or would be
8 such a participant if the person were a participant.
9 (6) In this item:
10 Applied Principles and Tables of Support means the document titled
11 "Principles to determine the responsibilities of the NDIS and other
12 service systems" that is dated 27 November 2015 and published on the
13 Department’s website, as existing at the commencement of this item.
14 125 Access requests
15 Sections 21, 26 and 28 of the National Disability Insurance Scheme Act
16 2013, as in force on and after the commencement of this Schedule,
17 apply in relation to a person who makes an access request on or after
18 that commencement.
19 126 Meeting the disability requirements or the early
20 intervention requirements
21 (1) Sections 24, 25 and 27 of the National Disability Insurance Scheme Act
22 2013, as in force on and after the commencement of this Schedule,
23 apply in relation to:
24 (a) a person who makes an access request on or after that
25 commencement, for the purposes of deciding whether the
26 person meets the access criteria on or after that
27 commencement; and
28 (b) any person who is a participant on or after that
29 commencement, for the purposes of deciding whether the
30 person meets the disability requirements or the early
31 intervention requirements on or after that commencement.
32 (2) Paragraph (1)(b) applies whether the person becomes a participant
33 before, on or after the commencement of this Schedule.
58 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
Main amendments
Application and transitional provisions Part 3
-
1 (3) National Disability Insurance Scheme rules made for the purposes of section 27 of the National Disability Insurance Scheme Act 2013 that were in force immediately before the commencement of this Schedule continue in force (and may be dealt with) as if made for the purposes of that section as amended by this Schedule.
-
127 Status of person as a participant Sections 29, 30 and 30A of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a person who is a participant on or after that commencement, whether the person becomes a participant before, on or after that commencement.
-
128 Transition to new framework plans Subsections 32(3) and (4), 32B(2) and 32C(1) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a person who is a participant on or after that commencement, whether the person becomes a participant before, on or after that commencement.
-
129 Old framework plans—content and approval of statement of participant supports (1) Sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after that commencement.
(2) Subitem (1) applies: (a) whether the participant becomes a participant; and (b) in the case of a variation—whether the plan comes into effect; before, on or after that commencement.
- 130 When a plan ceases to be in effect Subsection 37(3) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a participant’s plan, whether the plan comes into effect before, on or after that commencement.
No. , 2024 National Disability Insurance Scheme Amendment (Getting the NDIS 59
Schedule 1 Main amendments
Part 3 Application and transitional provisions
1 131 Suspension of plans 2 Paragraph 41(2)(a) of the National Disability Insurance Scheme Act 3 2013, as in force on and after the commencement of this Schedule, 4 applies in relation to a suspension of a statement of participant supports 5 in a participant’s plan that starts on or after that commencement.
6 132 Circumstances in which persons must not manage 7 funding 8 Subsections 43(3), (4A), (5) and (6), and 44(1), (2AA) and (2A), of the 9 National Disability Insurance Scheme Act 2013, as in force on and after 10 the commencement of this Schedule, apply in relation to a person who 11 is a participant on or after that commencement: 12 (a) whether the person became a participant; and 13 (b) whether the plan came into effect; and 14 (c) whether any relevant plan management request was made; 15 and 16 (d) in the case of subsections 43(4A) and 44(2AA)—whether the 17 registered plan management provider was registered or 18 nominated; and 19 (e) in the case of subsections 43(5) and (6) and 44(2A)— 20 whether the plan nominee is appointed; 21 before, on or after that commencement.
22 133 Acquittal of NDIS amounts 23 Section 46 of the National Disability Insurance Scheme Act 2013, as in 24 force on and after the commencement of this Schedule, applies in 25 relation to: 26 (a) a participant who receives an NDIS amount, including 27 because of subsection 46(1A) of that Act, on or after that 28 commencement; or 29 (b) a person who receives an NDIS amount on behalf of a 30 participant, including because of subsection 46(1B) of that 31 Act, on or after that commencement; 32 whether the participant becomes a participant before, on or after that 33 commencement.
60 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
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Schedule 1: Application and transitional provisions Part 3
-
1
-
*134 Garnishee orders
Paragraph 46B(2)(b) of the National Disability Insurance Scheme Act $2013$, as in force on and after the commencement of this Schedule, applies in relation to the making of an order in the nature of a garnishee order on or after that commencement.
-
-
2
-
*135 Varying old framework plans
Subsections 47A(1A) and (3) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to the variation of an old framework plan on or after commencement, whether the plan comes into effect before, on or after that commencement.
-
-
3
-
*136 No reassessment of certain old framework plans
Section 49B of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to an old framework plan on and after commencement whether the plan comes into effect before, on or after that commencement.
-
-
4
-
*137 Children
$1$ Subsections 74(4) and (4A) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to person who is a participant on or after that commencement: $(a)$ whether the person became a participant; and $(b)$ whether the plan came into effect; and $(c)$ whether any relevant plan management request was made; and $(d)$ in the case of subsection 74(4A)—whether the registered plan management provider was registered or nominated; before, on or after that commencement.
$2$ National Disability Insurance Scheme rules made for the purposes of subsection 74(6) of the National Disability Insurance Scheme Act 2013 that were in force immediately before the commencement of this Schedule continue in force (and may be dealt with) as if made for the purposes of that section as amended by this Schedule.
-
Schedule 1 Main amendments
Part 3 Application and transitional provisions
1 138 Transitional rules
2 (1) The Minister may, by legislative instrument, make rules prescribing 3 matters of a transitional nature (including prescribing any saving or 4 application provisions) relating to the amendments or repeals made by 5 this Schedule.
6 (2) Without limiting subitem (1), rules made under this item before the end 7 of the period of 12 months starting on the day this Schedule commences 8 may provide that provisions of this Schedule, or any other Act or 9 instrument, have effect with any modifications prescribed by the rules. 10 Those provisions then have effect as if they were so modified.
11 (3) To avoid doubt, the rules may not do the following: 12 (a) create an offence or civil penalty; 13 (b) provide powers of: 14 (i) arrest or detention; or 15 (ii) entry, search or seizure; 16 (c) impose a tax; 17 (d) set an amount to be appropriated from the Consolidated 18 Revenue Fund under an appropriation in this Act; 19 (e) directly amend the text of an Act.
20 (4) This Schedule (other than subitem (3)) does not limit the rules that may 21 be made for the purposes of subitem (1).
62 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
Quality and safeguards amendments Schedule 2
Amendments Part 1
1 Schedule 2—Quality and safeguards
2 amendments
3 Part 1—Amendments
4 National Disability Insurance Scheme Act 2013
5 1 Before subsection 73U(5) (after the heading)
6 Insert:
7 (4A) An approval is subject to such conditions as are specified in the
8 National Disability Insurance Scheme rules for the purposes of this
9 subsection.
Commented [A60]: Any quality commission should be
independent of the NDIS/NDIA and not subject to arbitrary
10 2 After subsection 73U(5)
rules decided/created by the Agency.
11 Insert:
12 (5A) Without limiting subsection (4A) or (5), a condition specified
13 under either of those subsections may have the effect of requiring
14 an approved quality auditor to not:
15 (a) employ or engage, or continue to employ or engage, a person
16 against whom a banning order has been made; or
17 (b) have, or continue to have, such a person as a member of the
18 approved quality auditor’s key personnel.
19 3 Subsection 73U(6)
20 Repeal the subsection (not including the heading), substitute:
21 (6) The Commissioner may, in writing, vary an approval given under
22 subsection (1) by:
23 (a) imposing new conditions on the approval; or
24 (b) varying or removing existing conditions (other than
25 conditions specified under subsection (4A)).
26 4 After subsection 73U(9)
27 Insert:
No. , 2024 National Disability Insurance Scheme Amendment (Getting the NDIS 63
Schedule 2 Quality and safeguards amendments
Part 1 Amendments
1 National Disability Insurance Scheme rules relating to approved 2 quality auditors
3 (9A) The National Disability Insurance Scheme rules may prescribe Commented [A62]: As above - Q&SC must be 4 requirements with which the Commissioner must comply, criteria independent of the NDIA, not governed by the Agency in any 5 that the Commissioner is to apply, or matters to which the way.e 6 Commissioner may, must or must not have regard, in deciding the 7 following: 8 (a) whether to give, or refuse to give, an approval under 9 subsection (1); 10 (b) whether or not to make an approval given under 11 subsection (1) subject to conditions; 12 (c) whether or not to vary or revoke an approval given under 13 subsection (1).
14 5 At the end of subsection 73ZN(9) 15 Add: 16 ; and (d) if the banning order is against a person who is employed or 17 otherwise engaged by an approved quality auditor or is a 18 member of the key personnel of an approved quality 19 auditor—notify the approved quality auditor of the order as 20 soon as possible.
21 6 After paragraph 201A(1)(i) 22 Insert: 23 (ia) subsections 73U(4A) and (9A) (approved quality auditors);
24 7 Subsections 202B(1) and (2) 25 Repeal the subsections, substitute:
26 (1) The Commissioner may, in writing, delegate the Commissioner’s 27 powers and functions under Division 8 of Part 3A of Chapter 4 28 (compliance and enforcement) to APS employees in the 29 Commission in accordance with the following table:
30
64 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
Quality and safeguards amendments Schedule 2
Amendments Part 1
Delegation of regulatory powers
Item The Commissioner may delegate to the following APS employees in the following powers and the Commission … 1 any of the powers and functions an SES employee, or an acting SES employee, in the Commission (a) powers under the Regulatory Powers Act in relation to the provisions of this Act; and (b) powers and functions under the Regulatory Powers Act that are incidental to a power mentioned in paragraph (a) 2 a power or function under an APS employee in the subsection 73ZL(2) or (3) Commission who holds, or performs (infringement notices), including: the duties of, an Executive Level 2, or equivalent, position (a) powers under Part 5 of the or equivalent, position Regulatory Powers Act in relation to the provisions of this Act; and (b) powers and functions under the Regulatory Powers Act that are incidentals to a power mentioned in paragraph (a) 3 a power or function under an APS employee in the section 73ZM (compliance notices) Commission who holds, or performs the duties of, an Executive Level 1 or 2, or equivalent, position
Note 1: The expressions SES employee, acting SES employee and APS employee are defined in section 2B of the Acts Interpretation Act 1901.
Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
(2) Before delegating a power or function under subsection (1) to an APS employee covered by item 2 or 3 of the table in that subsection, the Commissioner must have regard to: (a) if the power or function is delegated to an APS employee holding, occupying, or performing the duties of, a specified office or position—whether the office or position is
Schedule 2 — Quality and safeguards amendments
Part 1 — Amendments
1 sufficiently senior for the employee to exercise the power or 2 perform the function; or 3 (b) otherwise—whether the employee has appropriate 4 qualifications or expertise to exercise the power or perform 5 the function.
6 8 Subsection 209(8) (table item 4, column headed 7 “Description”, after paragraph (k)) 8 Insert: 9 (ka) subsections 73U(4A) and (9A);
66 National Disability Insurance Scheme Amendment (Getting the NDIS No. , 2024
Quality and safeguards amendments
Application and transitional provisions Part 2
1 Part 2—Application and transitional provisions
2 9 Conditions of approval—approved quality auditors
Subsection 73U(4A) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to an approval of a person or body to be an approved quality auditor, whether the approval is given before, on or after that commencement.
8 10 Notification of banning orders
Paragraph 73ZN(9)(d) of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to a banning order made on or after that commencement.
13 11 Delegation of regulatory powers
A delegation made under subsection 202B(1) of the National Disability Insurance Scheme Act 2013 that was in force immediately before the commencement of this Schedule continues in force (and may be dealt with) as if it had been made under that subsection as amended by this Schedule.
No. , 2024 National Disability Insurance Scheme Amendment (Getting the NDIS 67