NDIA Accountability Project

Osteopath functional capacity improvement supports and disability related health services

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Amendment (Participant

Service Guarantee and Other Measures) Bill 2021

Submission by Osteopathy Australia to the Senate Community

Affairs Legislation Committee

November 2021

Contact

Contact Peter Lalli, Senior Policy Officer- Clinical Excellence, for questions or comments about this submission

Executive summary and recommendations

Osteopathy Australia welcomes the opportunity to lodge a submission to the Senate Community Affairs Legislation Committee.

We are regularly involved in discussions concerning the NDS, legislative and operational issues through our frequent involvement with Allied Health Professions Australia’s Disability Working Group, liaisons with participants and service providers themselves, including members of Osteopathy Australia servicing self and/or plan managed participants, and other providers. As such, this opportunity for feedback is valued; we hope our feedback improves service experience for NDIS participants and helps to inform the diversified open markets that were originally envisaged for the scheme.

The committee should be aware we lodged a submission addressing terms similar to those of its own inquiry to a recent Commonwealth Department of Social Services consultation for the proposed bill. We wish to reinforce our recommendations to the Senate committee.

We section our comments and recommendations by legislative bill or instrument and restrict our comment to legislative changes relevant to Osteopathy Australia, its members and participants accessing an osteopath for functional capacity improvement supports, or disability related health services. Our recommendations are as follows:

National Disability Insurance Scheme Participant Service Guarantee Rules (2021)

Recommendation 1: rule components referring to scheme staff delegations should clearly specify:

  • Situations where a decision sits solely with the CEO as delegate
  • Situations where a scheme delegate on behalf of the CEO may make a decision.

This recommendation is consistent with other NDS rules now in exposure draft form, for example, the National Disability Insurance Scheme Amendment Plan Management Rules (2021), in which ‘Agency’ and ‘CEO’ are used interchangeably in reference to approval delegation.

Recommendation 2: that Part 3 more clearly specify the correct maximum timeframe by which the scheme must make plan approval and review decisions or

variations to such decisions. For example, is the maximum timeframe 21 days in

general or 90 days for participants under age seven and 56 days for all other participant age groups?

  • Recommendation 3: that Part 3 (8) specify in-principle considerations the scheme must make where evaluating support plan request decisions in addition to the maximum timeframes for these decisions now included in the exposure draft.

  • Recommendation 4: that Part 3 (8) give consideration to constraints participants in rural, regional and remote areas may face in meeting the proposed 90-day time limit for providing further information to the scheme, as well as the constraints participants requiring multiple or complex assessments may face in meeting the time limit.

  • Recommendation 5: that Part 3 (8) clarify whether the 90-day maximum timeframe is renewed each time the scheme seeks clarification of information lodged by participants within the initial 90-day timeframe. For example, where participants provide the requested information, and the scheme poses further questions about that information, would an additional 90 days (180 days overall for information collection) be facilitated?

  • Recommendation 6: that Part 4 (16) require the Commonwealth Ombudsman to report scheme performance annually against all five engagement principles and service standards rather than against ‘one or more’ in the present exposure draft. Consistent thorough reporting enables longitudinal assessment of scheme operational performance over time.

National Disability Insurance Scheme Amendment (Plan Management) Rules 2021

  • Recommendation 7: Part 8, 1(a) should be supported by definitions that allow plan manager decisions about provider access to be scrutinised. The exposure draft requires participants that are plan managed to access services which ‘substantially improve outcomes in the long term’. Despite the centrality of these terms to this part of the exposure draft, the list of definitions offers no clarity of their meaning and application to significant lifelong disability and therefore is a transparency issue.

  • Recommendation 8: Part 8 (1e) should remain as written in the exposure draft. The wording at present limits provision of plan management services by providers or persons that may improperly influence participant choice and control of third-party providers; this rule is welcomed.

National Disability Insurance Scheme Amendment (Participant Service

Guarantee and Other Measures) Bill 2021

Recommendation 9: Schedule 1 48 – new 103 (2) should limit the powers of the NDIS CEO to vary a plan or statement of support once a matter is before the Administrative Appeals Tribunal — where variation would further complicate the dispute needing a tribunal ruling.

Osteopaths and people with a significant lifelong disability

Osteopaths are skilled government regulated allied health professionals applying adaptable and diverse clinical management approaches. Osteopaths complete a dual Bachelor or Bachelor/Masters qualification covering functional anatomy, biomechanics, human movement, the musculoskeletal and neurological systems as well as clinical intervention approaches.

As a defining characteristic, the osteopathic profession emphasises the neuromusculoskeletal system as integral to function and uses client-centred biopsychosocial approaches in managing presenting issues. Evidence informed reasoning is fundamental to case management and clinical intervention. Osteopaths prescribe skilled clinical exercise, including general and specific exercise programming for functional improvement in activities of daily living. ii

Osteopaths are consulted for advice on physical activity, positioning, posture, and movement in managing a diverse range of neuromusculoskeletal functional impairments and needs. Most osteopaths are consulted within primary care practices, being a key source of allied health advice for tens of thousands of people per week. Osteopaths work within hundreds of primary health care practices, both osteopathy specific and multidisciplinary. Many osteopaths work in aged care, disability service or rehabilitation settings/programs, including settings receiving state jurisdictional or Commonwealth government funding.

For people with acute or persistent pain, osteopaths may offer lifestyle and/or movement advice, injury specific exercises, manual therapy, and health promotional strategies to aid symptom recovery. Osteopaths apply contrasting clinical management approaches when managing people with significant physical disabilities and/or other disability syndromes with a physical impact. Osteopaths acknowledge that growing skills for self-coping and community participation is the overarching goal, despite what may be persisting health care symptoms.

Osteopaths, applying person-centred care:

  • Review and identify functional capacity and movement barriers to individual goal fulfillment and/or community participation
  • Aid and educate participants, their families and carers on mobility, mobility strategies and whole-body movement for participation in the home and community
  • Assist participants in developing and applying physical skills needed for activities of daily living, including coordination, strength, flexibility, stability, conditioning, and balance
  • Assist participants in establishing whole body movement styles and postural interventions preventing injury in activities of daily living
  • Where appropriate, manage pain associated with movement that could compound core activity limitations.

Osteopaths, in meeting these disability care objectives:

  • Observe participant movement and function in specific environments to assess barriers to whole-body physical skill use

  • Perform assessments of physical function, including but not limited to muscular strength, joint movement, and limb function

  • Recommend and prescribe mobility equipment assisting participants to stand, walk and move around more easily or independently within their home, school or local community

  • Provide advice and education to participants on positioning and posture in undertaking daily living activities

  • Design and prescribe exercises, motor related activities and tasks, whether land or water based (hydrotherapy) that can enhance whole-body movement or specific functional skills.

These skillsets inform tertiary educational content for all osteopaths in the country. Osteopathy regulators, the Australian Health Practitioner Regulation Agency (AHPRA) and Osteopathy Board of Australia (OBA), require each osteopathy registrant to possess attributes and skills aligned with the Capabilities for Osteopathic Practice (2019).Osteopaths must make a measurable contribution to neuromusculoskeletal function, adhere to best available neuromusculoskeletal evidence, work in an interdisciplinary and coordinated fashion, and encourage individual empowerment in clinical care.i

Specifically, on graduating an osteopathy course, registrants must be able to:

  • Identify and understand individual goals and concerns

  • Evaluate the social determinates of core activity limitations interacting with physiology

  • Develop and review management plans based on sound clinical evidence to facilitate optimum participation in activities of daily living

  • Development clinical management interventions incorporating manual therapy, exercise and activity-based interventions, educational interventions, and assisted movement strategies

Apply appropriate standardised outcome measures for milestone mapping,

       including measures of disability and function.  ii

These overlapping capabilities are shared by other allied health professionals, including registered musculoskeletal physiotherapistsiii; as such, they are interdisciplinary and are not the exclusive to any one profession.

Many osteopaths are consulted by self and plan managed NDIS participants for support goals associated with growing skills for daily activities- among the most important being independent living skills like mobility, conditioning, gross or fine motor skill management and dexterity. Osteopaths also liaise with carers, families, plan managers and support coordinators to maximise participant capacity for community participation.

Osteopathy Australia

Osteopathy Australia is the national peak body for the osteopathic profession. We promote standards of professional behaviour over and above the requirements of AHPRA registration. A vast majority of registered osteopaths are members of Osteopathy Australia.

Our core work is liaising with state and federal government, and all other statutory agencies, professional bodies, and private industry regarding professional, educational, legislative, and regulatory issues. As such, we have close working relationships with the Osteopathy Board of Australia (the national registration board), the Australian Health Practitioner Regulation Agency (AHPRA), the Australasian Osteopathic Accreditation Council (the university accreditor and assessor of overseas osteopaths), schemes in each jurisdiction, and other professional health bodies through our collaborative work with Allied Health Professions Australia (AHPA) where we are a party to its Disability Working Group that explores and reviews legislative, reform and operational issues and their implications for the allied health sector. We also engage extensively with service delivery networks in the community, including plan management organisations, individual plan managers, support coordinators, NDIA staff and with participants themselves. In our capacity, we offer this submission to the Senate Community Affairs Legislation Committee.

Opening comments

Osteopathy Australia greatly appreciates the role of the Senate Community Affairs Legislation Committee.

Unfortunately, we are not sure what the scheme itself does with feedback received, although it does open a new consultation quite often. We hold concerns consultation arrangements initiated by the scheme tend to be ‘tick the box’ opportunities given there is hardly a single summary released on themes captured, what the scheme will

Please note, recommendations made within this submission may apply to the NDIS proper, the NDIS Quality & Safeguards Commission, and/or operations performed by both arms.

National Disability Insurance Scheme Participant Service Guarantee Rules (2021)

Need for delegations beyond the scheme CEO in Part 2 of the Participant Service Guarantee Rules (2021)

While we recognise the scheme CEO has lead delegation, the operational reality is that disputed access decisions should generally be made by delegates at the local level on behalf of the CEO for timeliness. The rules now essentially direct access, approval and plan goal disputes to the highest level of the NDIS.

For a scheme of several hundred thousand participants, this rule is clearly not possible or even tangible— particularly where disputed decisions are received in mass at a single point in time. Further, deferral to the CEO frequently within the rules can be counterintuitive to participants seeking to have their voices heard. Should the rule as written in the exposure draft be legislated and interpreted stringently, bottlenecks in approval processes could emerge with major consequences for local level scheme flexibility and responsiveness to participant need and choice.

Recommendation 1: rule components referring to scheme staff delegations should clearly specify:

  • Situations where a decision sits solely with the CEO as delegate
  • Situations where a scheme delegate on behalf of the CEO can make a decision.

This recommendation is consistent with other NDIS rules now in exposure draft form, for example, the National Disability Insurance Scheme Amendment Plan Management Rules (2021), in which ‘Agency’ and ‘CEO’ are used interchangeably in for approval delegation.

Need for greater clarity and consistency around maximum timeframes for participant support statement approvals

There is need for more coherence between clauses relating to maximum timeframes in which a participant support statement must be approved or reviewed. In the exposure draft, Part 3 Section 7 (d note) could be contradicted by Section 8 (1). While d note specifies that the CEO has 21 days to decide whether to vary or reassess a plan, the section immediately below outlines timeframes that are significantly longer than note d stipulates. Section 8 (1) provides that ’in deciding whether or not to approve a statement of participant supports, the CEO or NDIS

Need for standards governing support plan decisions beyond approval timelines

Part 3 (8) appears to solely focus upon the maximum timeframe within which support plan request decisions must be made by the scheme. However, this part is devoid of any other legislated principles or considerations the agency must apply in assessing these requests within the maximum timeframes detailed. For example, exactly how Part 3 (8) would enable service access decisions to occur in such a way that meets the service rule principles at the start of the exposure draft document and puts the participant at the centre of their service goals is generally unclear.

Recommendation 3: that Part 3 (8) specify in-principle considerations the scheme must make where evaluating support plan request decisions in addition to the maximum timeframes for these decisions now included in the exposure draft.

Need for greater clarity regarding maximum timeframe for participants to provide information to the scheme when requested

Part 3 (8) clearly states that participants will have up to 90 days to provide information to the NDIS supporting a plan request or support review decision. However, for some participants who are rural, remote, or where multiple or complex assessments are indicated for a decision, the 90 days may be unsuitable. The risk is that individual/social context, access to resources and appointment constraints could mean that some participants are denied consideration irrespective of the merit of their request.

We are also unclear as to whether the 90-day maximum timeframe for information provision to the scheme would recommence each time the NDIS requests supplementary or follow-up information from a participant after any initial information has been provided. For example, say a participant is asked for specific information, it is then provided within the 90-day time limit, but the scheme then requests additional information, would the participant have 180 days for full provision of information?

Recommendation 4: that Part 3 (8) give consideration to constraints participants in rural, regional and remote areas may face in meeting the proposed 90-day time limit for providing further information to the scheme, as well as the constraints participants requiring multiple or complex assessments may face in meeting the time limit.

Recommendation 5: that Part 3 (8) clarify whether the 90-day maximum timeframe is renewed each time the scheme seeks clarification of information lodged by participants within the initial 90-day timeframe. For example, where participants provide the requested information, and the scheme poses further questions about

that information, would an additional 90 days (180 days overall for information collection) be facilitated?

Need for exhaustive and thorough annual Commonwealth Ombudsman reports to the Minister

Part 4 (16) governs issues and matters that the Commonwealth Ombudsman ought to report to the Minister within each financial year. The wording states that the Ombudsman will report scheme performance against ‘one or more’ of the five engagement principles and service standards set out in the instrument (i.e. transparency toward participants, responsiveness to participant need and choice, respect of participants and their value, participant empowerment, as well as participant connectedness- removal of barriers to service access). Each of these principles and standards are fundamental to scheme operation, and to determining whether it is meeting its ends. As such, we believe that all annual reporting should cover all aspects, not ‘one or more’. Inconsistent terms for reporting annual scheme issues or concerns may not be helpful for gauging longitudinal qualitative and quantitative scheme operational/performance issues and any changes to them.

Recommendation 6: that Part 4 (16) require the Commonwealth Ombudsman to report scheme performance annually against all five engagement principles and service standards rather than against ‘one or more’ per the exposure draft. Consistent thorough reporting enables longitudinal assessment of scheme operational performance over time.

National Disability Insurance Scheme Amendment (Plan Management) Rules 2021

Part 8 (1a) requires further definition in order to not give the NDIS and partner plan management providers unrestricted power over the service affairs and choices of participants. The exposure draft now stipulates that ‘a support must not be provided by a particular person if the provision of the support is not likely to substantially improve outcomes in the long term’. On referring to definitions within the exposure draft, there is however no citing of these terms, nor any meaning given to them.

We and many others in the care and support sector wish for clarity regarding the meaning of ‘substantial’ and ‘long term’ in the context of significant lifelong disability. Where participants for instance have a disability related to a deteriorating condition, or terminal syndrome, how would ‘long term’ and ‘substantial’ be defined if at all, is one question that needs to be factored in considering the definition of these terms.

Recommendation 7: Part 8 (1a) should be supported by definitions that allow for scrutiny of plan management decisions regarding provider access. The exposure draft now limits support provision to providers able to ‘substantially improve outcomes in the long term’. Despite the centrality of these terms to this part of the exposure draft, the list of definitions offers no clarity of their meaning and application to significant lifelong disability; this is a transparency issue.

Osteopathy Australia agrees with provisions requiring plan management services not be provided by agencies or persons that may inappropriately influence participant choice of providers

Part 8 (1e) is an important clause for plan management services requiring ‘that plan management supports not be provided by agencies or persons if there is a risk that they may inappropriately influence participant choice of providers able to deliver on the statement of participant supports’. We agree that this is an appropriate rule for plan management services consistent with our previous submissions which have discouraged the provision of plan management services by a plan management provider to a participant where:

  • The plan management provider has commercial, business or other cross promotional interests with specific local allied health services that could improperly influence participant choice within competitive local markets, for example, a relationship or interests intertwined with a local physiotherapy provider that would pose a barrier to a participant choosing an osteopath to provide similar or like clinical interventions.

Recommendation 8: Part 8 (1e) should remain as it is now written in the exposure draft. The wording at present limits provision of plan management services by providers or persons that may improperly influence participant choice and control of third-party providers to fulfil plan goals; this rule is welcomed.

National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021

CEO power to vary a plan or statement of plan supports once a matter is before the Administrative Appeals Tribunal is too open ended

Schedule 1 48 – new 103(2) determines the jurisdiction and powers of the Administrative Appeals Tribunal where a reviewable decision is under consideration. The new schedule appears to allow the NDIS CEO to vary a plan or statement of supports while a matter is before the tribunal.

We have concerns that this clause could be used in ways that could make for complexities in tribunal proceedings, and we strongly believe the CEO should be limited from making decisions that would further deny a participant plan of supports from such time as a matter is before the tribunal.

Recommendation 9: Schedule 1 48 – new 103 (2) should limit the powers of the NDIS CEO to vary a plan or statement of support once a matter is before the Administrative Appeals Tribunal — where variation would further complicate the dispute needing a tribunal ruling.

References

i Osteopathy Board of Australia, Capabilities for Osteopathic Practice (2019) [online]; https://www.osteopathyboard.gov.au/Codes-Guidelines/Capabilities-for-osteopathic- practice.aspx pp. 3-8

ii Osteopathy Board of Australia, Capabilities for Osteopathic Practice (2019) [online]; https://www.osteopathyboard.gov.au/Codes-Guidelines/Capabilities-for-osteopathic- practice.aspx pp. 9-17

iii Physiotherapy Board of Australia, Physiotherapy Practice Thresholds Statement [online]; https://www.physiotherapyboard.gov.au/Accreditation.aspx

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