SHIRLEY HUMPHRIS

I would like to thank the members of the committee for insisting on this extension. I am concerned that such an important bill, that is affecting so many, is given the due diligence it deserves.

This extension may still have insufficient time. It has also come to my attention that

It should be noted that the Independent Assessments at Joint Standing Committee received near 400 submissions and were afforded 8 hearings. When the needs assessment is only one part of this bill, the whole bill deserves utmost scrutiny and substantial amendments, or it should not pass at all.

Frankly I feel that it is so complex especially with the spin told by the Minister that we cannot rely on fair, later additions (Rules and Legislative Instruments) of the so important detail. Trust is shattered. The bill was ill-considered in the first place and will be difficult to amend its way out, especially by early August. It is best to start over and get it right.

Questions that need to be asked of government:

Of the waste clock accuracy? It doesn’t add up for 2 months.
Will they retract the statement of auto top ups? They have never existed.
Why there are tens of thousands awaiting a decision on s48 or s47 backlog of 6 months? Hardly “auto”.
The implied bottomless money pot of funds for participants (there is not). Of course, all reviews and assessments must meet NDIA approvals, why does the Minister not understand that? The funding is finite, except for good reason of Review and scrutiny.
Ask the government to confirm that cryptocurrency; cocaine; gambling and alcohol have never been legitimate claims. No need for them on a banned list – they already are at risk of audit.
That claims must meet policy criteria at risk of scrutiny and consequences.
To confirm that the bill does not address fraud, they can already address fraud and are doing so.
An example of current NDIA powers and reason to lack trust. As of July 2024 pricing, on High Intensity supports - the NDIA have completely REMOVED the criteria for funding at a higher level, for high intensity support for participants with complex behaviour requiring Positive Behaviour intervention. What are they thinking, short-term saving of highly trained workers when behaviours can result in harms? There is evidence that providers already cherry pick for easier work. This sleight of hand, underfunding, will be a disaster causing loss of support, and most definitely cause harm, even to the public if untrained workers are supporting behaviours of concern.
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                   Where are we at now
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Co- design

Promised but not legislated. “Have regard” is optional to implement. The Minister is convinced his Town Hall lectures were consultation, so we cannot believe the promises. Why has government not responded to the Review or the Royal commission before this Bill was tabled. Recommendation: Legislate co-design in the Act

   National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 - SHIRLEY HUMPHRIS **1**

Legislative Instrument

A statement of consultation is now a proposed amendment for the legislative instrument. Legislation with later legislative instruments is not uncommon, but a government agency worker has told me that they were supposed to consult but tried to avoid it being too much by releasing over holidays etc. Administrative lawyer expert, Darren O’Donovan has said a legislative instrument is just meant for simple changes he gave an example of customs policy. A legislative instrument for such important legislation as NDIS needs assessment is highly inappropriate.

Section 10

The previous mess of s10 has been amended to leave only the Rules to be determined with its IN and OUT list.

Here is the problem the Minister has been ranting on spend that either may be likely inappropriate or fraudulent spend that can already be actioned; or legitimate disability needs; or very rare ludicrous misspends. We have heard of bird seed, cocaine, treadmills, strata fees, fines, rent, steam rooms, gambling, perfume, white-goods, cannabis, cruises, trips to Japan, non-assistance animals, taxidermy, weddings, gift cards, sex toys, sex assistance, crystal therapy, cuddle therapy, clairvoyants and taro, somatic therapy, mastermind coaches and crypto-currency“. How do we trust a thoughtful IN and OUT list from this Minister or even any future Minister/CEO? People can still misspend even if there is a list!

Furthermore, the Occupational Therapy Association has stated that if innovative low-cost items are not allowed, then alterative disability specific items could cost more, or even need a human to do the job instead of a piece of equipment. Innovation of supports is written in the Objects and Principles of the Act.

The Human Rights Legislative Committee, as you know, has stated listed restrictions could have human rights ramifications. The Minister discredits himself simply stating “they are wrong”. One example of this need is the autistic individual with needs of earphones and emotional calming aids that may mitigate dysregulation that can result in harm to self and others. Of course, there are so very many other examples, so such a list would be impossible without adverse consequences, including greater scheme cost.

Interim Rules

Without interim rules s10 is now a “blackhole” and supports cannot be claimed. The Rules are legislated go to States. The Rules will take time with promised co-design and States approval so a hurried inappropriate interim Rule will be there for the duration and a legal headache.

Will the rushed unseen Interim Rules go to States with the pressure put on States to hurry and approve or no one can claim anything? Media will likely be briefed that States are the cause of delaying participants ability to claim anything.

Recommendation: Section 10 should state that until the new Rules are made, with the due process, an NDIS support remains to be a Reasonable and Necessary Support as in s34 (1) s 34(1)aa must be removed

and s34 1 (f) reinstated and Rules Supports for Participants retained that already has items that are not allowed legislated.

Needs assessment

32L Assessment of participant’s need for supports has had a proposed amendment

1.The CEO must arrange for an assessment of a participant’s need for supports to be undertaken as soon as practicable after the CEO commences the preparation of a plan for a participant.

Despite the recommendations of the Review there is no certainty of the qualifications of the assessor, their scope of practice, or whether the assessment may be multi-disciplinary.

Where will the workforce come from in the already thin markets? Intuitively many assessors will likely be from the newly qualified looking for work, they will consequently have no nurturing from their organisation. What will happen to the already often unavailable treating workforce if they move to assessments?

It is outrageous that the assessment cannot be reviewed because a plan review must be based on the assessment that is unreviewable by law.

The assessment must be part of s99 reviewable decisions and must be sent to the participant.

What an assessment covers

2.The assessment must be undertaken using the assessment tool, and in accordance with any other requirements, determined under subsection (8).

University academics spent 5 years trying to find a tool for independent assessments and failed. The emphasis on THE tool by the Bill casts doubt on whether an assessment will ever be possible. Professional Allied Health use tools as fits the need, not as one (or even several) tools fits all, as decided by bureaucrats or politicians, after disregarding professional advice, as happened with independent assessments.

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.

This requirement is proposed to be amended to assess impairments that impact the impairment that meets access. That is a better move, however the revised supplementary explanatory memorandum indicates that it will be assessed via the “tool” – a likely crude measure. Significantly if s34 1(aa) remains which only allows funding for the impairments that meet disability access criteria. The whole person funding is denied.

4.The assessment must:

(a) have regard to any information and reports requested under subsection 36(2) for the purposes of the -assessment;

Must have regard whether or not appropriate or accurate??

   National Disability Insurance Scheme Amendment (**Getting the NDIS Back on Track No. 1**) Bill 2024 - SHIRLEY HUMPHRIS 12/7/24    3

(b) may have regard to any other information held in the records of the Agency that relates to the person.

The persons own reports and information to be considered were assured by the reviewers. It is not certain -whether there is to be gatekeeping of information held in records.

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.

The proposed amendment now enables the assessment to be given to the participant to comment on inaccuracies before going to a budget planner.

(6) The report must include any information, and meet any requirements, determined under subsection (8).

(8) The Minister may, by legislative instrument, determine the following:

(a) assessment tools to be used in undertaking assessments under subsection (1);

(b) requirements for undertaking assessments under subsection (1);

(d) requirements that a report prepared under subsection (5) must meet.

Section 8 is one of many details of the bill that leaves detail to swift power of the Ministry (NDIA and DSS) and any future Minister and bureaucrat.

The legislative instrument will strictly control the methodology of the assessment EVEN IF that control conflicts with the professional Code of Conduct and best practice of the assessor’s profession. The review has suggested that this will be overcome by the assessor being an APS employee and therefore will not be required to be AHPRA registered.

The NDIA technical advisors are already relinquished of their AHPRA obligations as APS employees; hence the assessors are likely to be similarly employed.

TAB (technical advisory branch) advisors are not employed by the Agency as Allied Health Practitioners -they are employed as APS employees (who also have AHP qualifications and experience). FOI 23/24-0117 - Planner and TAB advisor qualifications and role guidelines

“The Australian Health Practitioner Regulation Agency works in partnership with the National Boards to eensure that Australia’s registered health practitioners are suitably trained, qualified and safe to practise. Public safety is our priority.” https://www.ahpra.gov.au/

This oversight by a professional body is not certain if the professional has dropped their registration to become an APS employee. Public safety is therefore at risk.

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It is highly concerning that a poor assessment is unable to be reviewed.

The assessment may not even be the fault of the assessor, but the legal framework of the Act and Rules that they are required to follow even if it conflicts with best practise and professional Code.

There is legal opinion that the right to appeal information held about you breaches the constitution and may require a High Court appeal.

A replacement assessment is not the same as an appeal as it is using the same legislated tool process that is likely to give a similar result.

The review rights of the needs assessment and information selected or disregarded in the needs assessment should be written into s99 as a reviewable decision.

Furthermore the 32K(2) fails to legislate the method of turning an assessment into a budget but leaves it up to the Minister’s Rules. Again, promises of co design and transparency have evaporated.

Recommendation:

Refer the needs assessment to the Joint Standing Committee for full scrutiny in its own right.

They stated in their communique 12/4/24 they believed there is no point in rushing and that development of intergovernmental agreement was needed to make sure of clear responsibilities.
They were critical of the proposed changes not being in the spirit of National Cabinet and could risk worse outcomes for people with disability.

On fraud

The bill does little to address fraud, yet much to find savings with ill-considered under funding. There is the bill proposal that all participants should be needs assessed by a likely inadequate assessment, be consequently underfunded, and have imposed harsh spend oversight that may save money in the short term.

There must be precautions of course, but risk of harm to participants must be the overriding consideration of attempts to “catch” minority of fraud /misspend. The ability to audit with spend evidence kept, should be legislated. The claims portal should have sufficient space for claim justification entry as well as the name of the provider etc. The process of claim scrutiny must be fair, knowledgeable, and not unduly harsh. Rejected claims and debt must be a reviewable decisions s99. Note a debt that may be a legitimate disability need can currently only be waived (presumably to stay on the participant file as a debt). An s99 category needs “decision to refuse to remove a debt” added.

Submissions:

It was not clear that this submission must be submitted by CoB and this evening will not be acceptable as per information from a phone call. The website states “Submissions are sought by 12 July 2024” with no time listed.

It has also come to my attention that template submissions are considered a campaign. This is ableism as many disabled people have barriers to submitting individually. Others may see no need to reiterate obvious arguments. Any submissions on a template that have a person’s own story and/or opinions should be listed as a separate submission. I know of one PhD Occupational Therapist who added his own views on a template and was annoyed to be slotted in a campaign. This whole bill, and submissions dates, has been rushed from the start, and politicians with other matters to deal with, disabled people struggling with life, professionals with their work to do, and advocates with people to help, have all been railroaded and rushed in the process.

I would urge the Inquiry to review these template submissions and at least state on the website how many have been received.