Australian Association of
Psychologists incorporated (AAPi)
Australian Association of Psychologists Inc – National Disability Insurance Scheme Amendment (GETTING THE NDIS BACK ON TRACK NO. 1) BILL 2024
16 May, 2024
Dear Community Affairs Legislation Committee,
The Australian Association of Psychologists incorporated (AAPi) appreciates the opportunity to provide commentary to the Committee on the proposed Bill from the perspectives of psychologists who work with individuals and families with lived experience of Disability. We hope the information we provide below assists the Committee in their Inquiry.
In principle, AAPi agrees with the four guiding principles for the proposed changes: enhancing the NDIS experience, refocusing on supporting people with significant and permanent disabilities, promoting equality, and suring the scheme’s sustainability.
We would like to comment on the specifics of these changes, which may have unintended consequences for the Scheme’s access to and support of disabled Australians. AAPi recommends specific areas for investigation and remedy that will ensure that the support needs of disabled Australians are adequately captured.
We are also concerned by the lack of specifics in the legislation and the determination that many aspects will be determined by the Minister at a later date without requiring review and voting through the Senate. Without the specifics of further changes that are proposed, it is impossible to grasp the full impact of these legislation changes and the impact that they will have on disabled Australians.
Needs Assessments and Information Gathering Powers The current operational guidelines of the NDIS create administrative and unnecessary barriers to access and support when it comes to assessments and diagnoses provided by psychologists. There is an inaccurate requirement or perception of NDIA staff that only clinical psychologists or medical professionals can diagnose mental health conditions or Autism. The regulatory body for psychologists in Australia (Ahpra) or the National Law governing psychologists does not support this. All psychologists are qualified to assess and diagnose mental health conditions and Autism and perform assessment of functional impairment if they have sufficient experience working in this area.
It is our hope that the shift towards needs-based participant budget determination, focusing on functional impairment rather than specific medical conditions for eligibility, will also allow for assessments provided
by psychologists of all registration categories (i.e. endorsed or not endorsed with an area of practice endorsement) to be considered as valid for all participants. There is a large workforce shortage of specialist medical practitioners such as paediatricians, psychiatrists, and clinical psychologists, so there are far too many barriers to overcome if evidence of impairment is required from these registration groups. Psychologists are qualified to provide this evidence, and we are hopeful that in considering this new legislation, psychologists’ specialist skills and competencies will be recognised.
There is no clear direction on the consultation that will be undertaken on c临ical matters to develop the most appropriate assessment instruments to be used in Needs Assessments. The consequences of this, if incorrectly developed, are immense, and there needs to be clear oversight over this. The approval of this legislation without these details being clearly outlined is very concerning. That the Minister will be determining very sensitive, very technical, and important decisions around needs assessments that require a high level of technical skill and training without the process and consultation being specifically embedded in the legislation is inappropriate.
The Bill says a “needs assessment” would not be a reviewable decision and cannot be reviewed through internal or external review. It is not stated whether participants can view their own needs assessment report, whereas the NDIS review stated that participants should see this information first before it is provided to the NDIA. This is extremely concerning, given participant budgets are set from needs assessments and there is the potential for them to be inaccurate. There is inadequate information in the Bill about appeals processes or reviewing the needs assessment that underpins plans and determines funding if found inadequate. The Bill allows for a replacement assessment, but no details are provided. It should be explicitly stated when participants can get a replacement assessment, who can order this, who can perform this and under what circumstances. Processes, such as if the NDIA refuses to arrange/grant a needs reassessment, must also be outlined. This information should be in the Bill as it underpins the whole framework. It should not be left to the Minister to decide or be included in the rules to be set up. If needs assessments are to be used as the basis for setting budgets, legislation must provide clear and straightforward rights for a participant to receive the needs assessment before submission to ensure
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it accurately reflects their needs and circumstances and to request a new needs assessment where this is indicated.
The Bill proposes providing the NDIA new powers to request information from a participant and to penalise participants if they do not provide this information or have a medical assessment, including revoking their participant status. 28 days is a very short time period for this information to be provided, given the very long wait for specialist services in Australia currently. This will indiscriminately affect those in rural and remote locations as well as those who are under financial strain or from minority groups. Withdrawing essential life supports while people comply with these directions is inhumane and will have devastating consequences for the disabled community. The powers given to the NDIA under this Bill are very broad, including seeking direct contact with a participant’s health and allied health providers to seek confidential health information to be released to them. Psychologists and other medical and allied health professionals would not be able to comply with the NDIA’s requests to release private health information on participants due to their obligations under the Privacy Act. They would require informed consent from a participant or their guardian to comply.
The information-gathering powers should be more limited regarding the types of information that can be requested and restrictions on the negative consequences of failing to comply.
Removal of distinction between primary and secondary disability/diagnosis reliance Removal of the distinction between primary and secondary disabilities is a positive step towards seeing someone’s disability-specific needs holistically rather than needing to meet arbitrary criteria based on primary diagnosis, etc. It is important that the assessments of functioning conducted by psychologists are accepted as evidence by the NDIA. currently, the evidence of psychologists is often dismissed, and participants are told to seek evidence from medical professionals or some types of endorsed psychologists. As we have discussed above, evidence of psychologists is valid, and psychologists have a very high level of specialist skill in psychometric assessment that should be utilised by the participants they work with.
There was a focus on “needs assessment” as the guide for plan development, but there was not a lot of information about how the needs
assessment would be conducted or what it would involve. We embrace viewing participants as “whole people” rather than primary and secondary disabilities, which denotes what funding could be provided.
AAPi requests to be involved in the consultation process to determine what is required during needs assessments. There is a statement in the Bill that people will be able to gather evidence from their treating health professionals. We request that AAPi be consulted on what evidence is required from whom. We have previously contributed to this work through consultation during the IGAP project, but this work was not completed due to the NDIS review. We would ask that this is built upon and consultation across the allied health sector is prioritised so that information gathering from participants is appropriate and evidence-based, informed by the providers that specialise in working with people with disabilities of all types.
Registration of Providers The changes to the registration system for providers are reliant on the Registration Taskforce to make its recommendations. Without knowing the recommendations and their implications, it is impossible to determine whether there will be adverse consequences for providers or participants. Providers’ registration requirements must be clearly outlined before they are included in the Bill so that there will be adequate discourse about the proposal before it is embedded in the legislation.
Reasonable and Necessary The changes to reasonable and necessary criteria will be largely guided by the Needs Assessment, which we have already flagged as lacking information and oversight in the proposed legislation. Without this specificity, it is impossible to say how the reasonable and necessary decision-making will be impacted and whether people who have disabilities will be supported by the scheme. The proposed legislation does not adequately cover the method that will be used to determine the transfer of a needs assessment into a dollar amount of funding. How the Minister develops this calculation method is important and needs to be determined and formalised through consultation with the allied health peak bodies that specialise in assessing and treating those with disabilities and the disability community. The expectations of this need to be formally set out in the legislation.
It is also unclear what “stated supports” will be, what “flexible funding” will be or what the rules for using either funding category will be. Without
adequate planning and consultation, there will be devastating outcomes for the disabled community and their carers. Inadequate funding leads to adverse health and well-being outcomes, rationing of services and heightened risk. Potential risks are associated with inadequately qualified assessors who do not effectively capture participants’ needs, inappropriate tools for some disability types, and formulas to calculate funding that is not capturing the right data to make informed decisions.
The proposed “new framework plan” that outlines funding periods could also be problematic for participants, particularly those who need updated equipment or whose support needs are higher at the beginning of plans as supports are established or during periods of decompensation/ deterioration in their health or other factors. That these funding periods are being introduced to deal with plan funds being spent before the end of plans demonstrates a lack of care for disabled individuals whose support needs are higher than the financial supports made available to them by the NDIS. Participants should not have to ration showers or other essential services because the NDIS plan they have been provided is inadequate for their support needs. This highlights again the importance of getting the assessment of needs right, with substantial stakeholder consultation and co-design with the disability community so that Australians with a disability can access essential supports at adequate levels. Funding periods should not be needed if plans are created that adequately capture the support needs of participants. We propose funding periods should be removed.
Definition of NDIS supports The wording of this section of the Bill is unclear and needs more descriptors so that it is easily translated into practice. The wording is highly technical and drawn from international guidelines, but it is undetermined how this translates in real terms for Australians with disabilities. More detailed and explicit descriptions that are relevant to an Australian context need to be written for inclusion in this Bill.
What will be covered by State and Territory Governments and by the Federal Government need to be explicitly stated in the rules and more detail in the Bill. The Bill needs to make it clear what is included in the explanatory memorandum, the things that the NDIS does not want to fund and what it does want to fund, particularly when these are currently funded by the scheme but may not be continuing to be covered by the scheme. Social and community participation, economic participation and
what would be covered by foundational supports are important areas that need to be covered as they are unclear in the Bill. Without the knowledge of exactly what supports are covered and what is not covered, it is unclear whether this section of the Bill is appropriate or not.
The APTOS principles that are to be used until the rules regarding supports are created are also unclear and open to misinterpretation and misapplication, potentially creating situations where participants cannot meet their support needs through any entity. Participant choice and control will be severely impacted. The rules that will guide the decisions around funded supports need to be clear before changes are made to what will be supported by the NDIS.
The proposed legislation reflects a comprehensive effort to realign the NDIS with its core objectives while addressing concerns regarding eligibility, funding transparency, and safeguarding. However, further consultation and analysis are essential to ensure that the changes effectively meet the needs of participants and promote the scheme’s long- term sustainability.
Sincerely,
Amanda Curran Chief Services Officer Australian Association of Psychologists Inc Phone Email Website www.aapi.org.au