Submission for:
National Disability Insurance Scheme Amendment (Getting the NDIS back on track no 1) Bill 2024
Submission closing date 12.7.24
Preference for this to be published without names written by two professionals with experience in the disability sector and a lived experience.
24 years experience working and volunteering in the disability sector. Relevant University study BA Social work and social policy.
28 years experience working and volunteering in the disability sector. Relevant University study.
Material read in preparation for this submission:
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Information about the bill – Parliament of Australia no 47
- First reading
- Second reading
- Third reading
- Explanatory memorandum
- Correction to explanatory memorandum
- Revised explanatory memorandum
- Revised supplementary explanatory memorandum relating to sheet PA112
- The first explanatory memorandum (which now appears to have been removed)
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Bills digest no 71, National Disability insurance scheme amendment getting the NDIS back in track n1) bill 2024 15.5.24 Eleanor Malbon and Susan Pennings PDF. 9744166.
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Refer to reference page at the end of this submission for the full documents
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As early as May 2024 a social policy report outlined key points and concerns that the
Bill wishes to address ahead of the NDIS review report recommendations which was:
The financial sustainability, fraud, eligibility criteria which the bill aims to address but does not take into account the key drivers of this and appears to blame the person with a disability for these concerns.
- Page 12 of this report explains that the new definition that the bill proposes to change NDIS plans based on a person’s reasonable and necessary budgets will be defined in the legislation and rules.
However, this report admits that it’s unclear which supports will be set out or excluded in the NDIS rules as the government has not yet developed or drafted these proposals
The current PACE system seems to be lacking fraud detection measures in terms of its systemic capabilities. In fact, the shift in systems has meant a less capable workforce in terms of being able to see and track systemic markers that may point to misuse of funds. There has been no training provided to NDIS staff on fraud detection methodology in the new system. The bill in its current format appears to be placing blame on participants and fails to address systemic issues.
Recent reporting from the NDIS shows that a large amount of fraud alerts and reports are coming from partner staff not agency staff. The government seem to have minimal ongoing oversight of any given plan and spending that may be occurring. All calls are directed to NCC staff who are not intended to deal with fraud detection. (NDIS News Updates public facing)
At the time of this submission on 12.7.24 there had not been any schedule of amendments or any documents on the Parliament of Australia website for the NDS back on track bill.
With this submission I will not cover the history, background or statement of human rights as this has been covered by previous members of the public, government parties and professionals with concerns. Further the Committee for Human Rights has also raised concerns about the proposed bill. (chp 6 – Committee view and recommendations)
DSS The Bill at a glance Australian Government advised the following which I have paraphrased without changing the words or subtext: see box 1
This is also described as schedule 1 and 2 in the papers prepared by NDIS minister within the NDIS Bill proposal.
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Box one
Bill is made in two parts
Schedule part one
A) Adding a new definition of NDIS supports
B) Changing the act to make a decision and record if a person meets disability requirements or early access requirements or not. Then revising the NDIS rule making powers for early intervention
C) Agreeing the rules under category a)
D) Providing clear rules on a participant reassessment status including:
- When NDIS is seeking up to date information
- When an assessment or examination is required
- When a decision is being made to if a person remains on the scheme
E) A concept of new and old framework plans including powers to use a new budget framework following a needs assessment
F) Giving the minster the ability to make legislative instruments including methods of working out total funded amounts and the transition arrangements to move from old to new framework plans
G) Power to require the planning process meet the access requirements
H) New rule making powers about new framework plans
I) Enabling old framework plans to specify a total funding amount
J) Updating circumstances to which NDIS will change the plan management arrangements for a person
K) Exempting all instruments made under the NDIS Act 2013 including the NDIS from ending after 10 years
Schedule Part 2
A) The NDIS quality and safeguards commission to apply conditions when approving quality auditors in relation to employment of someone with a ban order against them
B) An expansion of the delegation powers for certain compliance and enforcement powers.
Page 5
The proposed bill does not address any of the problems that NDIS currently has in relation to the following problems:
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CRM was deemed unfit for purpose and replaced by PACE which appears to have not been correctly tendered, was also unfit for purpose at roll out and is still “unfinished”, has had cost blow outs including licence issues and was rolled out in a manner that has caused significant delay to NDIS doing the day-to-day tasks.
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PACE data published in March 2023 is not reflective of what is happening when the Participant Service Guarantee (PSG) is applied and the start date tracking system within PACE begins and ends for when the following occurs is not reflected accurately in the data: I. date a person gives intent to apply II. date the access request case is made III. date the access request case is passed over to the next division within NDIS IV. date the access decision case is opened V. date the access decision is made and the person is informed of this
PACE appears to not be following the current NDIS legislation, nor does it appear to be following the Participant Service Guarantee PSG. PACE also appears to not be reflective in the data NDIS made available in the March quarter 2024 but only released on the NDIS site on 17.5.24. Dates and activities can be changed, paused, stopped or cancelled giving the government powers to adjust data that is not accurate of the total time a member of the public has had to wait.
https://www.ndis.gov.au/news/10153-reform-outcomes-quarterly-meeting-summary-friday-17-may-2024
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PACE and NDIS are not transparent about what they are doing on the behalf of a person with a disability
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There has been no co-design of the bill with people with lived experiences of a disability and this bill does not align with the intent of the NDIS review report which was released in March 2023
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The Government have still not officially responded to the NDIS review report but expects the public to be understanding when the new rules, framework, powers, list A, replacement for R&N and definitions of what a NDIS support actually is and who gets to decide this – after the bill receives Royal Assent and becomes legislative.
It seems that the people are being asked to put a lot of trust in something that is
unseen, untested and unclear in the intentions of how it will be better and not worse than the current system. The current legislation appears to be hindering the government in terms of the power they wish to hold over the public accessing this insurance scheme paid for by the citizens of this country. Transparency is of utmost importance.
The Minster made a number of announcements, but we will refer to the ones on the NDIS news NDIS website news article here:
In May 15th 2024 on NDIS News Website
https://www.ndis.gov.au/news/10100-delivering-our-commitment-better-ndis
NDIS website news article here on May 25th 2024
https://www.ndis.gov.au/news/10124-protecting-ndis-taking-action-further-tackle- scheme-growthh
Despite the fact that the CEO for NDIS reported green shoot cost stabilisation also published in May on the 15.5.24 and the NDIS CEO indicated that
- Plan inflation is down to 7.5% this quarter, the lowest rate since September 2021 and continuation of a downward trend observed since September 2022.
- There has been a 14% reduction in the number of participants at risk of overspending their plan.
NDIS website news article here:
https://www.ndis.gov.au/news/10098-ndis-showing-green-shoots-cost-stabilisation
The government of the day continues to say that there is a demand to NDIS to top up plans which it was suggested that intra plan inflation was a major cause of growth in the Scheme despite days earlier the CEO of NDIS confirmed otherwise.
The suggestion from the government continues to state that there are top ups to plans.
This is not actually happening, there is no process to demand NDIS does anything, The Participant Service Guarantee (PSG) clearly states the request to NDIS can occur and the NDIS has 21 days to decide if the request is reasonable or decline to do so. There is currently no such thing as a plan top up. Every user of the scheme must submit a request for a review of their plan funding.
What Is Causing A Perceived Bloating Of The Cost
What is causing a perceived bloating of the cost is the NDIS contacting many thousands of participants to let them know that the NDIS have reviewed the plan and decided to continue the current plan for a further 12 months on the date the plan was set to expire. This means unspent funds roll over, and a further 12 months of the same supports are provided.
Giving an appearance of a bloat because the scheduled plan reassessment was not caried out as intended and the auto continuation of the plan allowed to trigger (a safeguard that was added to allow plans to not expire until the new plan was finalised which was an improvement made during covid.)
https://www.ndis.gov.au/participants/changing-your-plan/what-happens-your-plans-end-date
The NDIS service charter
https://www.ndis.gov.au/about-us/policies/service-charter
request the following values are important:
- transparency
- responsiveness
- respectful
- empowerment
- connection
https://www.ndis.gov.au/about-us/policies/service-charter
At the moment a person with a disability cannot see any of these values being upheld in either the current legislation or the proposed bill. Why would anyone be willing to trust a scheme that will not follow the blueprint of the NDIS Review final report or even give an idea of the proposed new rules or schedule or framework that will follow the bill after it has been granted Royal Assent and not before.
A system that will have a massive impact on the people of Australia deserves to be done well, helpfully, respectfully and co-designed by those who have a lived experience.
At the moment people with a disability are living in fear. Assumptions are being made about what they might be doing with the plans they have, and this has been misrepresented in social media platforms by minsters, government parties and more generally by large paparazzi corporations.
At the time of this submission, we suggest that if the current government was held accountable for making good decisions based in best practice, supporting evidence based research, and value for money when spending public funding it is likely that the outcome would be that they have failed.
Early June/ July 2024
The minister for NDIS created a website that tracks what he believes is wastage. There would be no need for public funds to be used to influence political parties using a website to track spending wastage – no need to say how many people would have benefited by now if they had had their needs met correctly in the first place with a plan that was built for them for their specific needs. We note that neither SAP-CRM or PACE can track over and underutilisation of spending in an east to understand tool which anyone could understand. Providers have been designing their own because PACE continues to this day – not to be able to do this function effectively in the NDIS portal via MyGov.
Mr Kurt Fearnley stated very clearly that this was meant to be happening.
I’m really excited to take on this role. I think it’s important that the participants of the NDIS get to see themselves in this organisation and trust with the organisation itself is – is a visceral thing. The scheme cannot be a success without trust and that is built over a period of time.
https://everyaustraliancounts.com.au/new-ndia-ceo-board-chair-members-transcript/
So why is it a person who is over 18 and now has a first plan that helpfully informs them that they can use their consumables for early child care intervention and HEN and continence products – when what they actually applied for was assistive technology as recommended by their treating specialist and this was declined and a capacity budget for an OT was suggested in its place who is not able to prescribe the recommended assistive technology because it’s out of their scope of practice.
We too can suggest that there has been wasted funding for:
- PACE roll out costs as per Chapter 6 – Committee view and recommendations re NDIS. And Committee chapter 2.
- Postal costs for every PACE letter sent in error because it is automated or sent 4 times because it goes to two parents and two children. It has been reported as a $2 million a month payment to salesforce to build in upgrades on the PACE software that came unfinished. Salesforce (1.7.2024) Inquiry into procurement at service Australia and NDIS PDF Website.
- AUKUS Australian submarines - cancelled contract.
- Commonwealth games – cancelled contract.
- Transport improvements – motorway.
- Transport improvements – subway.
- New hospitals – now not being built because the MRI machine will not work that close to a train line.
We are confident that if the above was costed it would also save the public purse funds that could have been spent else were on homes, health, education, and NDIS.
Each government has attempted to explore how best to support people with a disability
not just in Australia but around the world. While it might be better than it was 10-20 years ago, The data shows that people with a disability generally do not live as long, generally do not have access to health, education and employment, and are more likely to be disadvantaged over and above their peers with the same or similar goals. The medical and social model has attempted to solve this complex issue and more recently an equitable model has also been put forward.
Here is the thing, it’s called an insurance scheme for a reason. Anyone can suddenly need it and if they have a disability at some point in their life they should receive the correct help. Without red tape, without complex jargon, without confusing legislation.
The first explanation memorandum following the prosed bill mentions the United Nations Convention on the Rights of Persons with disabilities within the proposed bill. The government of the day are suggesting that the bill is compactable with this.(page 3 of 67)
Lets see what the convention states:
The purpose of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
https://humanrights.gov.au/our-work/disability-rights/about-disability-rights
On page 10 of the PDF but titled page 4 this explanatory memorandum states:
The new definition assists participants by providing clear guidance on what supports they can access through the NDIS. For example, things such as holidays, groceries, payment of utility bills, online gambling, perfume, cosmetics, standard household appliances, and white goods will not qualify as NDIS supports. (JCO12589.pdf)
Let’s think about that for just a moment, this means for a person with a degenerative condition such as MS, Parkinson Disease, SMA, MND who are in the mid to moderate stages of this incurable disease. They will no longer be able to gain the advice of their allied health professional who may have recommended a stool for the kitchen, bathroom and bedroom so they don’t become unsteady when walking in these areas
- Of the house. (note a stool is a general household item) high blocks for the bed post legs to raise the height of the bed making it easier to sit and stand up independently (available from Bunnings also a general house hold item)a row of floor lights up the stairs or to the bathroom because they need the toilet at night and gripping a torch is difficult (also a household item available at Bunnings and Ikea)a different handle on the door because it’s easier to open (also Bunnings)the list is quite long.
This suggests then that choice and control is no longer in the laps of the life of whom it impacts and that any such professional advice is no longer required because the new bill will give NDIS the power to decide on behalf of any person what they need and how it should be purchased rather than a qualified allied health professional or medical practitioner.
It may be that then a person with a disability now has no choice but to purchase a shower chair, a commode chair, electronic high low bed, home modifications as prescribed by an occupational therapist and which is a medical -disability approach often seen in hospitals, residential homes etc and are the most expensive option and not always suitable for a home.
If that is the case – it needs to be co designed to explain how this will be decided. The government of the day should not have legislative rights to determine what is and isn’t required for a person with a disability to enable them to safely engage in a life of their choosing. These recommendations and decisions should be made by qualified allied health practitioners and by the person themselves.
The NDIS review (2023) working together final report made 26 recommendations with 139 actions to change the system that supports people with disability. The recommendation was for all 26 and all 139 actions should be implemented in their entirety.
The Government of the day is yet to respond to how this will occur.
It’s worth reminding the world and the Australian government the first recommendation was :
To develop a unified system of support for people with a disability.
Its not complicated
Its actually quite simple.
If there are rules. They need to be explained before engagement of any contract ie a plan. This needs to be made known to the delegate and the participant. It should be easily interpreted as a standard. Currently plans across the NDIS have major discrepancies because of personal perception of what might or might not be reasonable and necessary.
As if only one side knows these rules we end up with an uneven distribution of power.
If everyone knows the rules, framework, scope, and methodology, reasons for assessment, reason for medical assessment – this is called transparent.
This means that everyone can ensure that the expectations can be followed
Given that this is not happening.
The Bill needs to be clear, what is the pathway for when there is a disagreement with a decision. Will AAT still stand as it currently does. None of this has been described in the current proposed bill. Otherwise. We have quite a big problem.
It appears the current government is rushing legislation which is unfair, uncompleted and will cause more harm and confusion in the long run more than its intention to resolve the issue.
The NDIS pillars are
- we take care
- we value people
- we grow together
- we aim higher
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The NDIS minister needs to reconsider that and ensure any new legalisation does just
that and co design with people that are important and that’s all of us, because it’s an insurance scheme which protects us all.
If the government of the day is to follow the full recommendations of the final report of the NDIS review which is intended to be a blueprint then the following might be considered.
CRM-PANDA-PACE-NDIS, Centrelink, Medicare, education, health, housing, mygov, my health, TAC, Superannuation, private health, Justice, child support, and many other platforms under the COAG principles that determine the responsibility under NDIS and other services would need to be brough together so that ANY person that has a disability can be well supported knowing that the back end will calculate the cost of their session to all the eligible systems. This would be fair and easier for the person and it is the responsibility of the government to do that.
https://www.dss.gov.au/sites/default/files/documents/09_2021/ndis-principles- determine-responsibilities-ndis-and-other-service-1.pdf
A person should not be disadvantaged because Medicare provides 10 sessions under a care plan and NDIS provide 12 sessions but the participant can only use one or the other when they have a disability unlike the rest of the population who are fortunate enough not to need NDIS and their only worry is finding a bulk billing professional so there will be no gap. People with a disability have to dance to a system that makes it harder. The NDIS has already ruled that medical need is separate from a disability without considering that a person cannot cut off sections of themselves in order to comply with a system. A person may have MS and require both NDIS and a Medicare care plan for many reasons. The NDIS recognises that this does occur but in practice it is difficult to navigate. A GP appointment is more expensive for a person with a disability because their condition is more complex. They may have several comorbidities or other diagnosis and they are frequently required to get medical letters at the behest of NDIS requiring a longer consultation with their GP. The Medicare rules do not allow the GP to write the letter outside of the consult, so this has to be done within a 30-40 min consult.
It is commons sense that when a commission hands over a blueprint that the government commissioned it to write – that the logical starting point is step one of the recommendations and actions.
Develop a unified system of support for people with a disability.
This bill is aimed at something quite different
the aim is to reduce fraud (which people with a disability are not the driver in the cause) reduce or make the same the funding under undetermined rules, and finalise eligibility of the two pathways which is already occurring, but it’s not well understood in the current NDIS legislation:
- The National Disability Insurance Scheme Act NDIS 2013
Legislative rules
- The NDIS– Supports for Participants Rules 2013
- NDIS code of conduct 2018, NDIS
- Provider registration and practice standards rules 2018,
- NDIS restrictive practices and behaviour support rules 2018
- NDIS SDA conditions rule 2018
- NDIS quality and safeguards commission and other measures rules trantion 2018
- NDIS complains and management resolution rules 2018
- NDIS provider definition rule 2018
- NDIS protection and disclosure of information commissioner rules 2018
- NDIS worker screening rules 2018
The full list of NDIS rules can be found here
https://www.ndis.gov.au/about-us/governance/legislation
The NDIS helpfully explains the following that the rules:
They set out the more detailed operation of the NDIS and accompany - and should be read in conjunction with - the NDIS Act.
Among others, there are NDIS Rules on:
- Becoming a Participant
- Supports for Participants
- Children
- Nominees
- Plan Management
- Registered Providers of Supports
- Protection and Disclosure of Information
- Inter-governmental agreements
In 2013 the legislation and the rules were produced together. The new bill fails to do this as well as fails to provide the new proposed framework.
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The people of Australia deserve a fit for purpose system that protects them if they have a disability, It’s worth protecting and its worth doing this well.
The Bill fails to do this.
The proposed bill appears to grant the government of the day punitive powers over the insured. Not only that, it appears to be written in such a way that will allow the government of the day secrecy and cover up techniques over current and past financial decisions made by those delegated. The current legislation makes certain definitions, and this bill appears to be an attempt to circumvent or override those definitions without any consultation. All current users of the scheme would lose multiple avenues of appeal should this bill remain in its current form. Not only this but it appears all current users of the scheme would be open to punitive punishments should this bill remain in its current form.
The bill is written in a such a way as to lack accountability against the public servant and the government. It is removing the rights of the Australian public, particularly those citizens who have a disability, and provides a concerning vague blanket overreach for the government. It lacks definitions of outlines on what problems it is attempting to solve within the current legislation. The problems this bill refers to have already been dealt with in the current legislation and current mechanisms within the NDIS being used incorrectly or not being understood by the public service. Workers implementing and interpreting this legislation in a way that was never intended and s not in line with humans rights or the intent of the original NDIS legislation.
In one year alone the current government “invested” $70 million into its scheme integrity branch. No detailed accounts of how this branch operates or to whom they report is clearly evident anywhere. This bill lacks any detail on why further power is required for this branch. No detailed data in areas of concern for the branch and its operations are readily available to the taxpayer or users of the scheme. The minister has chosen poor examples of mismanagement of plans and blamed the users. The current situation of the mechanisms of plan builds is geared toward stop gap measures due to under staffing or capability in terms of proper plan reviews. The consumer/insured has not caused this delay - the government has. Participants have been disengaged from the designed pathway for years and are now being blamed for this governmental mismanagement.
Powers to switch plan management are being introduced when there are existing mechanisms that don’t appear to be understood properly by the delegated workforce. This power exists in a much less restrictive form in the current legislation and again the proposed changes in this bill appear to be a punitive measure designed to punish and control people with disabilities at the ministers and CEO’s leisure as well as a way to move blame away from the government of the day. The current mechanisms are designed to be effective and are simply not being used properly by public servants within the NDIS. It should not be a preference to seek this much control over vulnerable citizens to avoid following thorough steps already existing that protect the rights of the citizens using and paying for the scheme.
Reference:
National Disability Insurance Scheme Amendment (Getting the NDIS back on track no 1) Bill 24 Parliament no 47 (date referenced 27.6.24)
Website: hypertext transfer protocol: // www. aph. gov. au / Parliamentary _ Business / Bills_LEGislation / Bills_Search_Resul ts / Result ? b Id = r7181
First time read (2022-2023-2024) No. (blank) 2024 - A Bill to amend the National disability insurance scheme Act 2013 , and for related purposes.
National Disability Insurance Scheme Amendment (getting the NDIS back on track No.1) Bill 2024 (71 pages) PDF 24047b01
The Parliament of Commonwealth of Australia: House of Representatives (First) Explanatory Memorandum National Disability insurance scheme amendment getting the NDIS back mob track no 1 Bill 2024 (no date) (67 pages) PDF JC01589. Download on 27th March 2024.
Bills digest no 71, National Disability insurance scheme amendment getting the NDIS back in track n1) bill 2024 (15.5.24) TITLE Eleanor Malbon and Susann Pennings
Website: hypertext transfer protocol: // www. aph. gov. au / Parliamentary _ Business / Bills_Legislation / bd / bd2324a / 24bd071
APH Chapter 6 – Committee view and recommendations re NDIS
Website: hypertext transfer protocol: // www. aph. gov. au / Parliamentary_Business / Committees/Joint/National_Disability_Insurance_Scheme/CapabilityandCulture/Report/Chapter_6_-Committee_view_and_recommendations
APH Chapter 2 - Procurement of the PACE platform by NDIA document store ashx ? id = 83135614-e40c-4372-9079-993f82dc4550 & subId=750355
Salesforce (1.7.2024) Inquiry into procurement at service Australia and NDIS PDF Website
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Salesforce submission 9
[https://www.aph.gov.au/DocumentStore.ashx?id=83135614-e40c-4372-9079- 993f82dc4550&subId=750355](https://www.aph.gov.au/DocumentStore.ashx?id=83135614-e40c-4372-9079- 993f82dc4550&subId=750355)
DSS questions and answers
Website:
https://www.dss.gov.au/the-ndis-amendment-bill-questions-and-answers
Department of social services (no date) The Bill at a glance : NDIS amendment
(getting the NDIS back on track – No 1) Bill (four pages) PDF.
Website:
[https://www.dss.gov.au/disability-and-carers-programs-services-ndis-reforms/the-bill- at-a-glance](https://www.dss.gov.au/disability-and-carers-programs-services-ndis-reforms/the-bill- at-a-glance)
NDIS review (2023) Working together to deliver the NDIS : Independent review into
the NDIS final report
Website:
https://www.ndisreview.gov.au/resources/reports/working-together-deliver-ndis
Principles To Determine The Responsibilities Of The Ndis And Other Service Systems
Website:
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