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AFA Submission Community Affairs Legislation

Committee – NDIS Amendment Bill 2024

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Submission to the Community Affairs Legislation Committee – NDIS Amendment (Getting the) NDIS Back on Track No.1) Bill 2024

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AFA Submission Community Affairs Legislation

Committee – NDIS Amendment Bill 2024

Table of Contents

ABOUT ABILITY FIRST AUSTRALIA ……………………………………………………………………………. 3

OVERVIEW ……………………………………………………………………………………………………….. 4

ABILITY FIRST RESPONSE TO NDIS AMENDMENT BILL 2024 …………………………………….. 5

Contact: Andrew Rowley Chief Executive Officer Ability First Australia Ph:

AFA Submission Community Affairs Legislation

Committee – NDIS Amendment Bill 2024

About Ability First Australia

Ability First Australia (Ability First) is one of the largest not for profit industry alliances between 15 of Australia’s leading disability service providers. With member organisations in all states and territories, Ability First support over 92,000 people with disability, their families and carers. Together, our members provide services to over 20% of Australians who currently receive funding for disability services including more than 200 DSOA clients.

Our members have a long and trusted history, having supported people with disability for between 52 and 93 years. Ability First supports its members through policy and government advocacy, knowledge sharing, and developing strategic partnerships with relevant stakeholders.

While Ability First organisations provide innovative and responsive services to meet the needs of people living with a wide range of disabilities, we have a particular interest, and deep expertise, in working with people with multiple and complex disabilities.

Ability First member organisations include:

  • Ability WA - Northcott
  • Annecto - Novita
  • Aruma - Rocky Bay
  • Cara - Scope Group
  • Carpentaria - St Giles
  • CPL - Yooralla
  • Cootharinga North Queensland
  • LiveBetter
  • Multicap

Overview

Ability First fully supported the recommendations of the NDIS Independent Review. It provides Government, the disability sector and people with disability with a framework to reset the NDIS for those whom it was originally designed to live meaningful lives.

The successful implementation of the vision set out by Co-Chairs Professor Bruce Bonyhady AM and Ms Lisa Paul AO PSM is critical to achieving this outcome. It is also critical to the viability of the NDIS registered provider sector. As demonstrated through Ability Roundtable 2022-23 financial year benchmarking data, the sector is in financial stress, and it does not have the resilience needed over the next 5 years while the Government considers the implementation of the NDIS Independent Review recommendations. As outlined in the statement by Ability First following the release of the NDIS Independent Review report, of particular importance is:

  • Reforming the pricing and payments model to account for the true cost of services, particularly for people with complex needs and for services in regional and remote areas.
  • Vesting responsibility for advising on NDIS pricing to an independent body to strengthen transparency, predictability, and alignment. As part of this process, the independent body should introduce differential pricing in recognition of the significant additional compliance requirements a regulated environment creates to ensure safety and quality.
  • Improving access to supports in remote communities as soon as possible.
  • Working with state and local governments to provide services in housing, health, and education alongside the NDIS, to ensure those with disability are provided the support and care they need and deserve. The successful implementation of Foundational Supports is central to the success of the NDIS Scheme reset and its long-term sustainability. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (NDIS Amendment Bill 2024) was introduced to parliament on the 27th of March. If it passes parliament, it will make fundamental changes to how the NDIS operates and directly addresses some of the recommendations of the NDIS Independent Review.

Ability First is supportive of the proposed legislative changes, however, seeks further details from Government that the implementation of the proposed legislation doesn’t have unintended consequences that impact on the viability of the NDIS registered provider market, and instead supports a diverse and sustainable NDIS registered provider sector to deliver NDIS 2.0.

Ability First Response to NDIS Amendment Bill 2024

The NDIS Amendment Bill 2024 puts forward the most significant changes to the NDIS since the legislation passed in 2013 and includes proposed changes to how NDIS participants access the Scheme and how they can assess funded supports.

Ability First is supportive of the proposed legislative changes put forward.

Ability First, however, seeks further details from Government that the implementation of the proposed legislation doesn’t have unintended consequences that impact on the viability of the NDIS registered provider market, and instead supports a diverse and sustainable NDIS registered provider sector to support the proposed NDIS 2.0. There are risks identified with the proposed changes to planning and budgets (Stated Supports, total finding amounts and funding periods) that may restrict flexibility, innovation and the sustainability of providers of Supported Independent Living.

Ability First would benefit from further detail on the practical impact of the proposed legislative changes on participants and providers given the majority of detail will be contained in the Rules yet to be developed and agreed with State and Territory Disability Ministers.

NDIS Supports (Schedule 1)

Definition for NDIS Support

Ability First supports the proposed inclusion to section 10 which provides a definition for NDIS supports. This will provide participants and providers greater clarity on those supports which are appropriately funded by the NDIS. However, Ability First’s support is subject to clarification of the intended scope of s10(a)(iv) that may unintentionally extend NDIS funding to healthcare costs beyond those envisaged.

Access to the NDIS

The NDIS Amendment Bill 2024 gives effect to elements of the NDIS Review, specifically establishing the precursor for foundational supports outside of the NDIS through changes to section 26(2) of the NDIA Act related to meeting early intervention requirements.

Ability First supports a functioning disability system that sits alongside the NDIS, and the successful implementation of Foundational Supports is central to the success of the NDIS Scheme reset and its long-term sustainability.

Spending of NDIS Amounts

Ability First fully supports the proposed amendments to section 46 in relation to the requirement to spend money only on NDS supports for the participant. This means that funds may only be used to obtain supports that have a constitutional basis, are appropriately funded by the NDIS, and are needed by the participant as a result of their impairment or impairments.

Ability First notes this was a key recommendation from the NDIS Review which was to provide more guidance to participants on how to spend their NDIS funding. Ability First considers these important provisions in creating greater consistency and equity for participants, and importantly, in ensuring accountability greater Scheme sustainability These changes will support the NDIS Reviews recommendations to provide more guidance to participants about how to spend their NDIS funding.

Changes to Planning and Budgets – ‘New’ and ‘Old’ Framework Plans

The NDIS Review recommended the use of needs assessment to determine a participants reasonable and necessary (R&N) budget, which is a fundamental change to the planning process.

Ability First supports the proposed introduction of a needs assessment to determine a participants R&N funded support, where it delivers the following objectives:

  • It reduces the inequities experienced by NDIS participants based on their ability to advocate through a line-by-line negotiation during the current planning process and increases the consistency in the planning process.
  • It provides for flexible funding and greater choice and control over the supports a participant wants to purchase.
  • It reduces the administrative waste experienced by people with disability, their families, support coordinator and providers in collating evidence.
  • It supports greater Scheme sustainability by providing a more standardised approach to needs assessment that are undertaken by industry professionals and provides the Government greater certainty of Budget projections which provides greater confidence to the community.

Ability First’s support however is based on a needs assessment which is consistent with the principles set out by the NDIS Review. This includes a needs assessment that is developed in consultation with people with disability, is focused on a whole-of-person level (opposed to diagnosis) that considers a persons support needs and existing mainstream and informal supports and one which balances fairness with the sustainability of the NDIS.

While the new framework plans and the use of ‘needs assessments’ will be implemented over time, the NDIS Amendment Bill 2024 also includes a measure that allows the CEO to specify in the statement of participant supports a total funding amount under the plan for R&N supports and/or total component amounts“ and “funding periods” that apply to them.

This will apply to ‘Old’ framework plans following the passage of the legislation and is adopted by the ‘New’ framework planning approach once implemented.

Reasonable and necessary budgets – total funding amounts, funding periods and stated supports

Other proposed changes do not provide the level of detail required to understand the potential impact on the NDIS registered provider market.

The proposed ‘total funding amount’ and ‘funding periods’, for example, allows for funding to operate as a cap and then release participant’s total funding in stages over the plan period to limit overspending of plans prior to the end of the period.

While this is broadly supported by Ability First as it will support sustainability of the Scheme more broadly, Ability First members deliver supports to NDIS participants with complex and changing needs and, particularly in Supported Independent Living (SIL) settings, these needs can change suddenly which requires providers to operate flexibly to deliver irregular supports as required to ensure the safety and wellbeing of a participant.

When funds are released periodically, without the flexibility to use those funds to be used at the time they are required to ensure the safety of a participant, it opens participants to safeguarding risks in addition to requiring the provider to deliver unfunded supports, or not support a complex participant who requires additional supports. It impacts a provider’s ability to provide the level of support that may be deemed appropriate while a change of circumstance or reassessment takes place.

Further detail is also required on the impact of periodic funding for participants engaging in activities that may require a draw down on funds at a certain time, opposed to regular intervals. It is concerning if funding is not available based on need and risks a participant withdrawing from social and community participation due to insufficient funds at certain times.

The NDIS Amendment Bill 2024 proposes the inclusion (for both ‘New’ and ‘Old’ framework plans) of a section that clarifies the Agency is not permitted to pay an NDIS amount to a person if the payment would result in the total amount of flexible funding in the plan being exceeded (including for a funding period), or the total amount of funding for a stated support in a plan being exceeded (including for a funding period). While this is a logical assumption, there is also an expectation that NDIA change of circumstances or reassessments takes place in a reasonable timeframe where a provider may be required to increased supports (unfunded) to ensure the safety and wellbeing of a participant. Ability First encourages the Category D rule related to exceptional circumstances be developed and communicated to the sector as soon as possible.

Flexible Funding

Ability First supports the proposed amendments to section 32 that provides for flexible funding up to a certain amount. This was a recommendation of the NDIS Review which recommended changing the basis for setting a budget to a whole-of-person level and allowing greater flexibility in how participants can spend their budget.

Ability First supports the principles outlined in the Explanatory Memorandum:

  • That people with disability know their own support needs and are best placed to determine how to meet these needs.
  • That a participant may use flexible funds to acquire a range of supports that they need as a result of their impairment/s, provided those supports are appropriately funded by the NDIS.
  • That a budget should be made up of flexible funding and stated supports (as required).
  • That the CEO may place restrictions on the spending of some or all of the flexible funding provided for in particular circumstances, where there is risk of harm or inappropriate use of funds.
  • That flexibility will be the standard approach wherever possible.

Quality and Safeguards Amendments (Schedule 2)

Ability First supports the proposed amendments in Schedule 2 of the NDIS Amendment Bill 2024 relating to Quality and Safegards and fully supports all actions that enables the NDIS Quality and Safeguards Commission to take compliance and enforcement action against provides who place NDIS participants at risk. However, increased compliance must be proportionate to the risks of (registered and unregistered) as recommended by the NDIS Review.

The NDIS Commission and the NDIA must also recognise providers and recognize the additional administrative burden that increase compliance activities will have on the NDIS registered provider sector. Ability Roundtable data from their 2022-23 NDIA Annual Price Review submission highlighted the increase unfunded cost of quality, safeguarding and compliance activities for NDIS registered providers. On average, Quality, Safeguarding and Compliance represented 1.3% of operating (indirect) expenses, as a proportion of direct costs which is 0.6% higher than what is allowed for in the NDIA’s DSW Cost Model. The NDIA Cost Model methodology used to calculate quality, safeguarding and compliance costs doesn’t encourage, or in fact allow for, an investment in quality and safety to meet the needs (and safeguarding requirements) of participants.

Ability First fully supports the Quality and Safeguards Amendment that strengthens the quality and integrity of the auditing process, with NDIS rules that specify conditions requiring an approved quality auditor not to employ or engage a person against whom a banning order has been made.

Ability First

supports a NDIS that addresses gaps in the regulatory environment promptly to keep NDIS participants safe. This amendment is also consistent with the NDIS Review recommendations in relation to risk-based registration of NDIS providers.