Submission to Senate Community Affairs
Legislation Committee Inquiry into
National Disability Insurance Scheme
Amendment (Getting the NDIS Back on Track No. 1) Bill 2024
May 2024
About Allied Health Professions Australia and the allied health sector Allied Health Professions Australia (AHPA) is the recognised national peak association representing Australia’s allied health professions across all disciplines and settings. AHPA’s membership collectively represents some 180,000 allied health professionals and AHPA works on behalf of all Australian allied health practitioners.
AHPA and the Disability Working Group
Allied Health Professions Australia (AHPA) is the recognised national peak association for Australia’s allied health professions. AHPA’s membership consists of 27 national allied health associations and a further 13 affiliate members, each representing a particular allied health profession. AHPA collectively represents some 200,000 allied health professionals and AHPA works on behalf of all Australian allied health practitioners, including the largest rural and remote allied health workforce numbering some 14,000 professionals.
AHPA’s Disability Working Group (the Working Group) comprises policy and clinician representatives drawn from the range of AHPA’s members that provide services in the National Disability Insurance Scheme (NDIS). The Working Group is therefore informed by the views and experiences of both individual allied health professions and the allied health sector as a whole.
AHPA and its member associations are committed to ensuring that all Australians, regardless of disability, can access safe, evidence-based services to assist them to realise their potential for physical, social, emotional and intellectual development.
** Allied health professions in the NDIS **
Allied health providers have two main roles in the NDIS: contributing expertise to assessments for access to the Scheme and any subsequent reviews of participants’ plans; and providing supports and services under allocated plan funding.
Most of the allied health professionals who currently provide NDIS services do so within the category of ‘therapy supports’. However, orthotic and prosthetic supports are not deemed therapy supports under the NDIS, with orthoses and prostheses instead being defined as assistive technology, and orthotic and prosthetic services assigned to the Custom Prostheses and Orthoses registration group.
Nevertheless, orthotic and prosthetic services do include clinical services (assessment, review and education) associated with the provision of orthoses and prostheses. These clinical services provided by orthotists/prosthetists parallel those provided by those allied health professions that are defined as providing NDIS therapy supports. Accordingly, when referring to NDIS supports or services provided by allied health professionals, this submission refers to ‘allied health supports’ or ‘allied health providers’.
For more detail concerning the 16 different allied health professions that currently provide NDIS supports or services (and are also represented on AHPA’s Working Group), please see Appendix 1, separately attached. This document indicates each profession’s scope of practice, requisite qualifications and regulatory framework, and outlines how those providers assist NDIS participants. Please note that the Appendix is not yet finalised for publication, and is provided to the Committee in confidence.
**Overview **
AHPA and our members engage extensively with the National Disability Insurance Agency (‘NDIA’) and the NDIS Quality and Safeguards Commission on matters of policy and practice, and we welcome the opportunity to comment on the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (‘the Bill’).
We appreciate the intent of many of the proposed reforms. For example, we welcome the proposed change to the basis for setting a budget to a ‘whole-of-person’ level rather than via individual support items. However, we have some significant concerns about the Bill as it is presently drafted. Some of these concerns relate to a history of NDIA and Government failures to meaningfully collaborate with the allied health sector on matters that affect our professionals, as we outline below. Further, The Bill leaves many significant matters to yet-to-be-drafted delegated legislation and Ministerial discretion. The final group of themes concern particular clauses in the Bill which AHPA view as sufficiently problematic that they deserve specific comment. The first, collaboration theme and second, issues of insufficient accountability and transparency also feed into this third cluster of themes. Insufficient collaboration AHPA is extremely disappointed that the first we knew of this Bill was upon its introduction to Parliament. We also understand that participants were consulted in only a narrow and restricted fashion. This approach does not facilitate stakeholder ‘buy-in’ and is anathema to the ethos that the NDIS should foster a culture of collaboration among participants, providers and other relevant entities. Unfortunately, the lack of prior consultation with allied health professional peak bodies is only the latest chapter in a history of NDIS matters pertinent to our sector. This general approach reflects an NDIS culture in which allied professionals and the services we provide are not always given appropriate status and recognition. This means that NDIS participants are not receiving the full value of allied health services that they need and deserve. The NDIS’s lack of recognition of the value of allied health is illustrated by the experiences of allied health professionals and participants in assessment, access and planning processes. Planners and support coordinators do not consistently recognise the unique value to participants provided by allied health professions, the evidence base for this value, the breadth of specialised allied health supports available, and what distinguishes each allied health profession from others.1 This system failure has contributed to inequities in plan funding and in support provision for participants with similar needs. This in turn has meant that participants’ goals are less likely to be met.2 At times, allied health professions also experience a complete failure to consult with us about significant changes, as with the development of the now discredited and abandoned independent assessment model.3 To make matters worse, AHPA had previously been contracted by the NDIA to
provide them with a report which considered the development of the credentialing, training and quality assurance aspects of an independent assessor role for allied health practitioners (see separately attached Appendix 2, provided to the Committee in confidence).
AHPA provided this report to the NDIA on the assumption that the assessment information obtained would only inform decision making related to access to the NDIS. We never received a response from the NDIA to this work. Instead, we discovered via the public realm that allied health practitioners would be contracted to provide independent assessment under the model – since rejected by the Minister for Disability and the NDIS – and our report was cited in the Evaluation of the Second Independent Assessment Pilot as having informed the Pilots, despite there having been no further communication with us. After consistent advocacy from the allied health sector, in 2022 AHPA and members of the Working Group were pleased to be involved in the NDIA’s Information Gathering for Access and Planning (IGAP) project. However, this project ceased following the announcement of the NDIS Review.
It is essential that allied health providers be meaningfully engaged at all stages of relevant NDIS legislation, policy and practice development, implementation and evaluation, in a manner which acknowledges our various roles in the Scheme and our specialist knowledge.
While fully supporting the developing concept and practice of participant codesign with the NDIA, we also continue to advocate for regular collaborative opportunities among the NDIA, providers, participants and Disability Representative Organisations. To date there has been no regular consistent mechanism to facilitate such engagement, and instead there is over-reliance on the goodwill and effort of specific individuals, whose roles may change.
AHPA therefore recommends that consideration be given to legislatively entrenching such consultative mechanisms via the current Bill or future draft legislation. Too many unknowns and insufficient transparency and accountability Via this Bill, Parliament is being asked to pass legislation that relies heavily on unknowns, including arrangements that have not yet been detailed, let alone finalised. The most prominent of these is the reliance of the proposed new approach to eligibility on foundational supports. As these will entail States and Territories providing supports to people deemed not eligible for the NDIS, it is imperative that there is public confidence in these arrangements, assisted by full stakeholder consultation during their development and implementation.
The Bill also leaves too much to delegated legislation and discretionary Ministerial powers. Given the lack of consultation on the development of the present Bill, it is perhaps understandable that many in the disability sector are not confident that these less fully democratic mechanisms (as opposed to primary legislation) will enable them to have meaningful input.
‘Needs assessments’ as outlined below constitute one such example. AHPA is also concerned that participants will not have a right to seek a review of some of the new processes the Bill creates, including of needs assessments. This means the Bill does not provide a way for a participant to prevent an inadequate budget being set based on that needs assessment, nor to ensure that the
implementation-and-forecasting-for-the-ndis/ ; https://ahpa.com.au/advocacy/submission-to-senate-joint-standing-committee-on-the-ndis-inquiry-into-current-scheme-implementation-and-forecasting-for-the- ndis/ ; Report of the Joint Standing Committee on the NDIS Inquiry into Independent Assessments (October 2021), especially Chapters 8 and 9. 4 This reference to AHPA’s report was subsequently deleted at our request.
Comments on specific clauses
Clause 10 Definition of NDIS support
This clause is a core element of the proposed reformed NDIS process, but as it stands it appears too narrow, and is also unclear.
AHPA is also concerned that the implication of the Explanatory Memorandum to the Bill (‘EM’, p4) is that whether supports are ruled ‘in’ (paragraph 10(b)) or ‘out’ (paragraph 10(c)) will depend on whether there is an acceptable evidence base for their efficacy. Our members are aware of examples where supports are known to benefit participants but there has not been sufficient investment in research to document this benefit to the level of a formal review.
AHPA does not support using the Applied Principles and Tables of Support (APTOS) as an interim measure until rules pertaining to proposed paragraphs 10(b) and 10(c) are made.
Clauses 24-27 Eligibility and access
The effect of the changes proposed in the Bill would be in essence that a would-be participant would have to satisfy either the disability requirements of (existing) section 24 or the early intervention requirements of (existing) section 25, or both, as well as meeting the requirements of proposed clause 10 (see above).
How methods or criteria are to be applied when making decisions about the disability and early intervention criteria and the matters which must or must not be taken into account is left to rules that are to be clarified and expanded (EM, p1). It is essential that all relevant stakeholders are consulted during the rule drafting process.
AHPA also notes the NDIS Review Final Report’s recommendation that when a person wants to access the NDIS, they
‘should not have to pay for additional evidence required to meet NDIA requirements. This would remove financial and administrative barriers and provide everyone with the same improved access pathway.’ (p87)
NDIS Review Final Report Action 3.1 therefore includes:
‘The assessment should be able to be undertaken by the applicant’s treating professional and should be funded by government. Additional evidence required by the National Disability Insurance Agency to inform complex access decisions should also be funded by government.’ (p91)
Similarly, the Senate Joint Standing Committee on the NDIS recommended that the Australian Government consider funding bulk-billed consultations with medical and allied health professionals for these purposes.
AHPA advocates that the Committee recommend that participants not be required to incur out-of-pocket costs, such as for reports, that are necessary to facilitate access to the NDIS. This would also be consistent with the Bill’s proposed approach to needs assessment (see below).
Clause 32L Assessment of participant’s need for supports
AHPA welcomes the implied requirement in subclause 32L(1) that the participant does not pay for the needs assessment as this is arranged by the CEO. This is consistent with NDIS Review Final Report Action 3.4 (p 93), and with recommendations from the Senate Joint Standing Committee on the NDIS.
Subclause 32L(8) gives extensive power to the Minister to determine all aspects of the needs assessment process, including assessment tools, the approved assessors and the content of assessment reports. AHPA notes the Explanatory Memorandum statement that such process and method
‘will be developed in consultation with people with disability, the disability community, health and allied health technical professionals, and with all States and Territories.’ (EM, p1)
Having previously considered the development of the credentialing, training and quality assurance aspects of an independent assessor role for allied health practitioners, including in NDIA-contracted work, AHPA and its members seek to centrally participate in the needs assessment reform process.
Given the experience of allied health practitioners with the previous independent assessment model, it is particularly important that all relevant assessment tools are subject to rigorous consultation with all key stakeholders at the earliest stage of their proposed development, as was recommended by the Senate Joint Standing Committee on the NDIS.
Subclauses 34(1)-(2) Matters that the CEO must be satisfied of when approving a statement of participant supports New paragraph 34(1)(aa) provides that the supports must be necessary to address the needs arising from an impairment that meets the disability requirements (in accordance with section 24) or early intervention requirements (in accordance with section 25). Proposed amended subsection 34(2) ensures that NDIS rules can be made for these purposes.
Given that the intended effect of these amendments is that the NDIS only funds supports for impairments that meet the disability or early intervention requirements, there may be circumstances where a direct link between an impairment and support need is not clear, with potentially deleterious impacts on participants.
Again therefore, all relevant stakeholders must be consulted during the rule drafting process. Amendments related to registration or registered providers Please note that AHPA has provided a separate submission to the NDIS Provider and Worker Registration Taskforce Consultation on regulatory and registration reform.
Other Matters Not Addressed in This Bill
AHPA looks forward to more extensive engagement on further tranches of NDIS legislation in response to the NDIS Review and other relevant reports, so that we may contribute to maximising participants’ choice and control.
In particular, we draw the Committee’s attention to the need to address current inequities for people aged over 65 who live with significant and permanent disability and either do not have NDIS access, or are NDIS participants but are being encouraged to move off the Scheme. These inequities are inconsistent with the Convention on the Rights of Persons with Disabilities.9
9 See also Recommendations 72 and 73 of the Royal Commission into Aged Care Quality and Safety.