NDIA Accountability Project

Allied Health Professions Australia's position on NDIS reforms

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Submission to Senate Community Affairs

Legislation Committee on Inquiry into the

National Disability Insurance Scheme Amendment

(Participant Service Guarantee and Other

Measures) Bill 2021

November 2021

About AHPA and the allied health sector

AHPA is the recognised national peak association representing Australia’s allied health professions. AHPA’s membership collectively represents some 140,000 allied health professionals and AHPA works on behalf of all Australian allied health practitioners, including the largest rural and remote allied health workforce numbering some 14,000 professionals. AHPA is the only organisation with representation across all disciplines and settings.

With over 200,000 allied health professionals, allied health is Australia’s second largest health workforce. Allied health professionals work across a diverse range of settings and sectors, providing services including diagnostic and first-contact services, preventive and maintenance-focused interventions for people with chronic and complex physical and mental illnesses, supporting pre- and post-surgical rehabilitation, and enabling participation and independence for people experiencing temporary or long-term functional limitations. Allied health also provides an essential bridge between the medical sector and social support systems such as aged care and disability, where it can represent the key formal health support in a person’s life.

AHPA provides representation for the allied health sector and supports all Australian governments in the development of policies and programs relating to allied health. AHPA works with a wide range of working groups and experts across the individual allied health professions to consult, gather knowledge and expertise, and to support the implementation of key government initiatives.

Introduction

AHPA appreciates the invitation to comment on the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (‘the Bill’).

We have previously made a submission to the Department of Social Services on the Exposure Draft of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (‘the Exposure Draft’) and associated proposed changes to the NDIS Rules (‘the Rules’, unless otherwise specified).

In our submission on the Exposure Draft we welcomed many of the proposed reforms as necessary for effective implementation of the Participant Service Guarantee (‘the Guarantee’), including proposed requirements for greater transparency and accountability and clearer timeframes associated with NDIS processes.

However, AHPA was – and remains – very concerned that the process of these legislative reforms has not been adequately informed by the principles of participant choice and control that the NDIA and the NationalDisabilityInsuranceSchemeAct2013(‘the Act’) espouse. If would-be commentators on the reforms wished to be thoroughly appraised of the implications of the Exposure Draft, they would have been required to read, analyse and in many instances, cross-reference in a complex manner only easily negotiable by those legally trained, 16 different documents. The time provided for this was four weeks.

It appears that the restricted period for public input has been constrained by the Government’s intention to seek to pass the amending legislation during this parliamentary term. As demonstrated by the recent overwhelming public rejection of proposed independent assessments, it is important to take the time to ‘get things right’. It would be somewhat ironic if a tranche of reforms publicised as centering on the rights of people with disability to make decisions

about their own lives in full partnership with the NDIA was forced back to the drawing board at a later stage.

We also took issue with the claim in the Exposure Draft’s explanatory document1 that all of the proposed changes were uncontroversial and straightforward. While AHPA is pleased to see that a small number of our concerns have now been addressed in the Bill before Parliament, there remain proposed reforms that we actively oppose.

In addition, much of the ‘devil in the detail’ of the Exposure Draft was contained in the proposed new or amended Rules, which are not subject to the parliamentary process in the same manner as primary legislation, so we have no knowledge of any changes that may have been made in association with the Bill.

Because the content of the Rules remains critical to our comments on the Bill, this submission incorporates AHPA’s previous responses to proposed Rules changes where relevant. Where such changes are not associated with a proposed reform of the Act, they are addressed according to the order of provisions in the Act.

Schedule 1 – Participant Service Guarantee Items 1–3 We strongly support the proposed amendment of section 9 of the Act in order to clarify the Ombudsman role. This will enhance accountability and participant redress and was recommended by the Tune Review. 2

Amending section 9 to replace ‘review’ with ‘reassessment’, where appropriate, avoids confusion and was recommended by the Tune Review. Items 4–6 We support amending section 20 of the Act with the effect that the CEO’s decision on access requests may be made in less than 21 days if the Rules so prescribe. This at least potentially reduces delay for participants and was recommended by Tune Review. Proposed reforms associated with the Exposure Draft included new NDIS(ParticipantServiceGuarantee)Rules2021 (‘PSG Rules’), which would require amendment for this change to have any practical effect. Items 11 and 12 AHPA supports amending paragraphs 26(2)(b) and 26(3)(b) of the Act to extend, from 28 to 90 days, the minimum timeframe for a participant to provide information or an assessment report relevant to an access request. It is appropriate that participants be provided with more time if they require it, and this was recommended by the Tune Review. Item 14 We support the new section 32 of the Act and welcome this change to the Exposure Draft, which did not specify a time frame for the CEO to facilitate the preparation of the participant’s plan.

1 Department of Social Services, Explanation of Proposed Amendments to the National Disability Insurance Scheme Act 2013 Contained in the Exposure Draft of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. 2 David Tune, ReviewoftheNationalDisabilityInsuranceSchemeAct2013:RemovingRedTapeandImplementingtheNDISParticipantServiceGuarantee(December 2019).

Item 16

AHPA supports in principle, and as recommended by the Tune Review, the proposed repeal of subsection 33(4) that provides that the CEO must decide whether or not to approve the statement of participant supports ‘as soon as reasonably practicable’.

The new provision would provide for the Rules to prescribe a timeframe, and if there are no such rules, would require the decision to be made as soon as reasonably practicable. Section 8 of the PSG Rules proposed in association with the Exposure Draft provided a time frame which, if unaltered, is perhaps excessive.

NDIS(PlanManagement)Rules2021sections 6–7 Existing subsection 35(1) of the Act enables rules to be made in connection with the funding or provision of reasonable and necessary supports or general supports. Section 6 of the proposed new NDIS(PlanManagement)Rules2021(‘PM Rules’) associated with the Exposure Draft concerned what and how supports should be specified in the statement of participant supports to be included in a participant’s plan.

If these PM Rules come into force, AHPA does not support subsections 6(5) and 6(6), not least because they rely on the CEO being satisfied that it is not reasonably practicable for supports to be provided through the market. Under subsection 6(5), if the CEO is appropriately satisfied, the statement of participant supports may specify that, during a specified period, the support or class of supports is to be provided to the participant:

  • (a) in a specified manner; or
  • (b) by a specified person or provider; or
  • (c) by a person or provider in a specified class of persons or providers.

Proposed subsection 6(6) then provides that for the CEO to be satisfied, one of the matters the CEO must have regard to is the principle that any intervention in the NDIS market should be as limited as possible. These new aspects of the Rules extend the role of the market into CEO decision making in a manner which is not expressly authorised under the Act. For further discussion see our comments on Item 5 under Schedule 2 – Flexibility Measures, below.

Similarly, existing subsection 33(7) of the Act empowers the Rules to prescribe additional matters to be included in a participant’s plan. Section 7 of the proposed PM Rules enlivened this, stating that if a support or class of support is to be specified as per subsection 6(5) above, the plan must include the reasons for specifying those matters. AHPA is concerned that this requirement is likely to mean that finalisation of the plan will take more time, thereby contributing to delays, compared to if market availability was not an issue.

PM Rules section 8 Via subsection 35(1) of the Act, section 8 of the proposed PM Rules provided guidance to the CEO about circumstances in which it would be appropriate to specify that a support must not be provided by a particular person or provider. The CEO is required to be satisfied of at least one of a range of proposed circumstances. Examples of circumstances include:

s 8(1)(a)

The provision of the support to the participant by that person is not likely to substantially improve outcomes for the participant or benefit the participant in the long term;

s 8(1)(b)

another person could provide the support to the participant and that other person is likely to provide better outcomes for the participant than the first person.

In making the decision, the CEO must also have regard to various matters, which include:

  • s 8(2)(a)that it is important for the participant’s plan to be flexible in an undeveloped NDIS market;

  • s 8(2)(d)that it is desirable to support and develop a range of other support providers, or potential support providers, in the participant’s community;

  • s 8(2)(e)any other matter the CEO considers relevant.

AHPA strongly opposes section 8, particularly the subsections referenced above. With regard to paragraphs 8(1)(a) and 8(1)(b), we are aware that NDIA misunderstandings and ignorance concerning the value and evidence base of allied health practice are common.

For example, a planner completely cut funding support for exercise physiology to a child with Autism Spectrum Disorder, claiming that the participant could get all required physical activity from a school Phys Ed class. As in that case, it is also not uncommon for NDIA delegates to assume that allied health service provision can be delegated to a support worker rather than performed by a trained and accredited professional. Music therapy is also frequently – and incorrectly – deemed not to be an evidence-based practice.

Planners and support coordinators also too often regard distinct allied health professions as unproblematically interchangeable. For example, the distinctions between physiotherapists, occupational therapists, osteopaths and exercise physiologists are often elided, despite some participants having been professionally assessed as in need of more than one of these services.

Paragraphs 8(2)(a) and 8(2)(d) risk prioritising market considerations over participants needs. It is particularly concerning that only one circumstance is required for the CEO to be satisfied, and therefore could simply be, without specification, any other matter the CEO considers relevant.

It is also deeply problematic for these proposed changes to be buried in the proposed new PM Rules and not sufficiently addressed in the accompanying explanatory material.

Item 19 AHPA supports the proposed repeal of subsection 37(2) of the Act to remove the existing prohibition on varying a plan, on the understanding that this change was requested by participants.

Item 20 It is proposed to amend paragraph 41(2)(c) of the Act to provide that during a period of plan suspension, the participant is not entitled to make a request for a variation of the plan. AHPA makes no comment on this proposal due to lack of time to explore unresolved questions about its impact.

Item 23 The Bill has made some changes to the Exposure Draft’s approach to section 47A and 48 of the Act, which concern the CEO’s power to vary a participant’s plan. AHPA had a number of concerns in

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relation to the Exposure Draft, and these have largely not been allayed by the Bill’s approach. Due to time constraints we are unable to provide detailed written comment, but if requested to appear before the Committee we will endeavour to elaborate on our concerns.

Item 24

A proposed repeal of sections 48 and 49 of the Act and a new section 48 would include allowing the CEO to initiate a reassessment of a participant’s plan at any time on the CEO’s own initiative.

Proposed section 12 of the NDIS(PlanManagement)Rules2021(‘PA Rules’) prescribed matters to which the CEO will be required to have regard. If unamended, the list of matters appears appropriately expansive. However, we are concerned that the relevant rules are proposed to be category D rules, which only require the Commonwealth to consult with all states and territories prior to making or amending the rules. We contend that it is more appropriate to legislate these ules as Category A or at least Category C.

Timeframes for reassessments and variations proposed in section 10 of the Exposure Draft PSG Rules seem unnecessarily complicated for participants to understand, but otherwise we can make no comment.

Item 30

A new section 50J would empower the proposed new PSG Rules to prescribe the compliance requirements for the CEO when preparing a participant’s plan or for participant plans that have come into effect (at the Exposure Draft stage, section 9 of the PSG Rules). This may include prescribing timeframes for additional processes, such as the offer and holding of a meeting after the plan is approved to discuss how the participant and their family could implement it and begin to access their NDIS funding.

The section also empowers what was proposed to be section 11 of the PSG Rules, to prescribe compliance requirements for the CEO in giving effect to decisions of the Administration Appeals Tribunal. We support these changes in principle, but would prefer that in order to protect the rights of participants, the reforms were in the Act itself, which has more legislative force and is subject to processes of greater accountability and transparency.

Item 39 Via inserting new table items 6 and 6A in subsection 99(1) of the Act, a decision by the CEO to vary a participant’s plan, or not to vary or reassess a plan, would become a reviewable decision. A person affected by the decision may seek internal merits review of such a decision, and make a subsequent application to the AAT for external review. We strongly support this change as enhancing accountability and participant redress.

Item 40

AHPA is very pleased to see that following public submissions on the Exposure Draft, which proposed to establish a new right for a participant to request reasons for a reviewable decision, proposed subsection 100(1) makes the provision of reasons mandatory in this context.

For consistency with the engagement principles and service standards of the Guarantee, we would also like to see this amendment extend to subsection 100(6) so that reasons are automatically provided for the review outcome of a reviewable decision.

Item 47 For similar reasons to our response to Item 39, AHPA strongly supports a new subsection 101(2) in the Act which applies if a participant makes a request for review of a decision to approve a statement of participant supports, or a decision to vary a statement of participant supports. The amendment allows decisions associated with the plan and made after the review request to be included as part of the review.

Item 49 We stronglly support a new subsection 103(2) in the Act which applies where an application is made to the AAT for review of a decision made by a reviewer relating to a statement of participant supports in a participant’s plan. This change has a similar effect to Item 47 and was recommended by the Tune Review.

Item 51 It is proposed to repeal subsections 174(3)-174(4C) which allow the Minister to make a legislative instrument prescribing the matters which must be contained in the quarterly report from the NDIA Board to the Ministerial Council, and which set out prerequisites to making the legislative instrument. In the Exposure Draft reforms the PSG Rules (section 15) would instead prescribe the types of information and matters to be included in the report. We oppose this change. Although the amendment’s rationale includes increased Board transparency and flexibility, the Rules are less likely to be subject to public scrutiny than the current legislative instrument. While there might be some logic to prescribing in the Rules some of the detail of those matters relating to the Guarantee, there is no justification for removing prescribing of matters in their entirety from parliamentary scrutiny.

AHPA is also concerned that if the proposed Rules are implemented, the matters to be reported on are almost entirely quantitative and tell us nothing about outcomes, such as how many access decisions were denied access. This compares unfavorably with the level of detail at least implicitly required under Item 55 below.

Items 52-54 These Items repeal subsection 204(1) of the Act which currently allows the Rules to prescribe a longer timeframe for the CEO to make a decision or do a thing. AHPA supports this in principle, but notes that the proposed change does not affect the situation where a person other than the CEO is required to do a thing. Where ‘person’ includes NDIA or NDIA-related personnel it would be consistent to repeal the power of the Rules to extend the timeframe.

Item 55 We strongly support the proposed new section 204A of the Act which provides that as soon as practicable after the end of each financial year, the Commonwealth Ombudsman must give the Minister a written report about some, or all, of the matters prescribed by the Rules (essentially, reporting against the Guarantee).

This amendment was recommended by the Tune Review and follows from Items 1-3 above. Due to the fact that prescription of matters in the Rules is circumscribed by the Ombudsman’s function under the Act, and the requirement for the report to be laid before Parliament, this provides an important opportunity for experiences of concern to participants to receive public scrutiny.

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Schedule 2 – Flexibility Measures

Items 1 and 2

AHPA supports this proposed removal of qualifiers to the capacity of people with disability from existing subsections 4(2) and 4(8) of the Act, which is also consistent with recommendations of the 2015 Independent Review$ and the Tune Review.

Item 3

We support amendment of the general principles guiding actions under the Act, via inserting a new subsection 4(9A) to reinforce that people with disability are central to the NDIS and should be included in a co-design capacity. This change was recommended by both the 2015 Independent Review and the Tune Review.

We note that ‘co-design’ is not defined in the legislation and defer to Disability Representative Organisations and NDIS participants as to whether and how this matter should be pursued.

Item 4

On the understanding that this change was requested by participants, AHPA supports inserting a new subsection 4(12A) into the general principles to specifically recognise and respect the relationship between people with a disability and their families and carers.

Item 5

AHPA does not support the proposed amendment which repeals subsection 4(15) of the general principles guiding actions under the Act:

       Innovation, quality, continuous improvement, contemporary best practice and

effectiveness in the provision of supports to people with disability are to be promoted.

Substituted is:

        In exercising their right to choice and control, people with disability require access to a

diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.

AHPA questions the lack of reference to necessary market intervention in the amendment, which consequently supports reliance on neo-liberal economic concepts of the market and the consumer to genuinely fulfil participants’ support needs. We note that the relevant recommendation by the 2015 Independent Review and the COAG response were not as exclusively market-focused as the above wording.

The proposed change also does not reflect Recommendation 17 of the Tune Review that the Rules be amended ‘to give the NDIA more defined powers to undertake market intervention on behalf of participants’. Similarly, the Government Response to the Tune recommendation was:

         ‘Disability Ministers have agreed to progress a more flexible approach to address market challenges, recognising that a one-size-fits all approach to delivering the NDIS is not suitable to address market gaps faced in certain geographic locations or by particular cohorts or disability support types. The Government supports amending the legislation to support all participants in the NDIS, irrespective of market challenges or supply gaps, to access the benefits of their NDIS supports and providing the NDIA with increased flexibility in these circumstances to encourage positive market behaviour.’

Item 6

AHPA supports the removal of ‘gender’ from paragraph 5(d) of the Act and its replacement with the appropriately contemporary and respectful ‘sex, gender identity, sexual orientation and intersex status’. We note that this change was also recommended by the 2015 Independent Review and the Tune Review.

Items 7 and 8

We support this reform as recommended by the Tune Review, and which enables the CEO to publish approved forms that will assist participants to download, print and upload.

Items 9 – 11

It is proposed to amend section 14 of the Act so that a person or entity receiving a payment will become an ‘NDIS provider’ for the purposes of the Act, and will be subject to the Code of Conduct and NDISQSC complaints mechanism. The reform also increases the purposes for which the Agency may provide funding to build the capacity of mainstream service and community programs to create connections between all people with disability and the communities in which they live.

Item 12

We support clarification of the intended role of existing section 17A of the Act by providing that when performing their functions and exercising their powers under Chapter 3 (participants and their plans), the CEO must have regard to the principles relating to the participation of people with disability in section 17A, in addition to the existing general principles in section 4. We note that this change was also recommended by the 2015 Independent Review and the Tune Review.

Items 16–20 AHPA strongly supports the proposed updates to the language of sections 24 (disability criteria) and sections 25 (early intervention requirements) relating to psychosocial disability, including implementing the Tune Review recommendation that the Act is amended to provide clearer guidance for the Agency in considering whether a psychosocial impairment is permanent, recognising that some conditions may be episodic or fluctuating.

Item 24 Consistent with our support for Items 16–20, we have some concern about the related proposal for new subsections 27(2) and 27(3) so that rules may now be prescribed in relation to disability requirements and early intervention requirements. Associated with the Exposure Draft, proposed sections 7 and 8 of the NationalDisabilityInsuranceScheme(BecomingaParticipant)Rules2021(‘BP Rules’) set out the requirements that must be met for impairments to be considered permanent, or likely to be permanent, for the purposes of the disability requirements in paragraph 24(1)(b) of the Act.

Proposed sections 9 and 10 of the BP Rules set out the requirements that must be met for impairments to be considered to result in substantially reduced functional capacity, for the purposes of the disability requirements in paragraph 24(1)(c) of the Act. Proposed sections 11 and 12 of the BP Rules set out equivalent requirements to sections 7 and 8, for the purposes of the early intervention requirements in subparagraph 25(1)(a)(i) of the Act.

AHPA is concerned that if these rules come into force, some of their terms are unclear and therefore open to differing and inappropriate interpretation. For example, subsection 7(2) provided that the impairment may be considered permanent, or likely to be permanent, ‘only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.’

Subsection 8(2)

Included as one requirement ‘the person is undergoing, or has undergone, appropriate treatment for the purpose of managing the person’s mental, behavioural or eotional condition’. Similarly, section 12 referred to ‘appropriate treatment’ and ‘substantial improvement in the person’s functional capacity, after a period of time that is reasonable’ without defining these terms.

Participants with psychosocial disability, such as people with schizophrenia, may be disadvantaged by overly broad or varying interpretations of these Rules.

The Royal Australian and New Zealand College of Psychiatrists Clinical Practice Guidelines for the Management of Schizophrenia and Related Disorders (‘the Clinical Guidelines’) recommend that a support worker assist with disabling cognitive or negative symptoms. The NDIS is the main option for people with schizoprenia to access support workers, and could also help improve vocational outcomes for these participants.

The Clinical Guidelines also outline the difficulties in accessing psychological and psychosocial therapies for people with schizophrenia. These barriers to treatment are exacerbated for First Nations, Maori and remote communities.

Depending on how terms like ‘known’, ‘available’ and ‘appropriate’ are interpreted, it is therefore potentially unfair to expect a person with schizophrenia to have trialled a range of psychological and psychosocial therapies before being permitted to access the NDIS.

If the Rules are to be prescriptive rather than providing a guide on such matters, decision making must be clear, consistent, transparent and accountable to participants. Item 25 On the understanding that this change was requested by participants, AHPA supports inserting a new subsection 31(ca) so that the preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should be required, some as reasonably practicable, to recognise and respect the relationship between participants and their families and carers. Item 26 We support the removal of the words ‘where possible’ from section 31(d) of the Act. The effect of this amendment will be to provide that in the preparation, review and replacement of a participant’s plan, and the management of funding for supports under a participant’s plan, a participant’s plan should strengthen and build capacity of families and carers to support participants who are children. We note that this provision is already qualified by ‘so far as reasonably practicable’, and that the reform was recommended by both the 2015 Independent Review and the Tune Review. Items 30–35 Various amendments are proposed to sections 42-44 of the Act regarding plan management requests a participant may make and circumstances in which a participant must not manage their plan. AHPA makes no comment on these proposals due to lack of time to explore unresolved questions about their impact.

5 Cherrie Galletly et al (2016), ‘Royal Australian and New Zealand College of Psychiatrists Clinical Practice Guidelines for the Management of Schizophrenia and Related Disorders’, AustralianandNewZealand JournalofPsychiatry, 50(5) 1-117.

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Item 36 We support in principle the repeal and substitution of section 45 of the Act to enable a new payment platform.

Item 37 We support empowering the Rules to prescribe requirements for NDIS providers that receive NDIS amounts on behalf of participants, to retain records including the retention of records for a specified period of time.

Item 45 It is proposed to amend paragraph 104(3)(f) to allow the CEO to consider, among things they must have regard to in deciding whether it is reasonable to require a participant or prospective participant to take action to claim compensation, the effect upon the participant’s carer, as well as (among other considerations already existing in the Act) the participant and their family. AHPA supports this amendment, noting that it was recommended by both the 2015 Independent Review and the Tune Review.

Item 52 A new subsection 209(3) of the Act would require the Minister when making Rules to have regards to the objects and principles of the Act, as well as to the need (in the existing provision) to ensure the financial sustainability of the NDIS. AHPA supports this amendment, noting that it was recommended by both the 2015 Independent Review and the Tune Review.