Proposed changes to the NDIS Act
Date: 2 November 2021
Recipient: Committee Secretary Senate Standing Committees on Community Affairs PO Box 6100 Parliament House Canberra ACT 2600
Dear Sir or Madam
I am writing to the Senate Community Affairs Legislation Committee (the Committee) as the father of young man with special needs. I would like to express my concern with some of the changes our current Government is proposing to the National Disability Insurance Scheme Act 2013 (NDIS Act). Among the material published1 regarding the proposed changes there is:
- The first reading of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (draft Bill)
- An explanatory memorandum to the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (explanation document)
Firstly, regarding Schedule 1 (participant service guarantee) of the draft Bill – specifically item 23 on variation of participant’s plan by CEO. This new section will allow a participant’s plan to be varied on the CEO’s own initiative. This new power appears broader than that recommended in the Tune Review and is of concern to NDIS participants and their families. The explanation document does not make a robust case for why the CEO needs this level of unbounded authority to vary a participant’s plan.
Secondly, regarding Schedule 2 (flexibility measures) of the draft Bill - specifically item 36 on payments made under the NDIS. As is explained in the explanation document, this amendment will enable the National Disability Insurance Agency (NDIA) to pay service providers directly on behalf of participants through a new payment platform. It will also allow the NDIA to more closely see what NDIS participants are using their plan budgets for. The case is made that this surveillance will allow the NDIA to better
understand supply and demand for certain supports and services in different parts of the country, and therefore improve the NDIA’s ability to fulfil its market stewardship role.”
This surveillance will be carried out by the same NDIA that has a Sustainability Action Taskforce in place focusing to “slow growth in participant numbers, slow growth in spend per participant”’.
Further, the previous Minster of the NDIS — the Hon. Stuart Robert MP — has publicly linked this functionality to the to NDIA’s anti-fraud and inappropriate spending safeguards.*
These points suggest the NDIA’s market stewardship role has the potential to evolve into a transaction-by-transaction critique of participant purchases. If this scrutiny leads to an increase in challenged purchases and demands for refunds, the NDIS experience for the typical participant will get worse. Energy that should be invested in making the most of opportunities NDIS provides will instead be poured into justifying choices and decisions to the NDIA.
The NDIA and this current Government have already suffered reputational damage in 2021 with the Independent Assessments issue. If NDIA elects to adopt an aggressive market stewardship role — for example, using algorithms and generic rules to challenge or reject participant purchases en masse — it will further ostracise and embitter NDIS participants and their families.
It will be NDIS participants who are least equipped to deal with these issues who will be the most impacted. This will see the current Government continuing to undermine the original intent of the NDIS to see the disabled in Australia treated as equal citizens.
The Committee is to report on the draft Bill by 25 November, after which | anticipate the Minister for
the NDIS — Senator the Hon Linda Reynolds CSC — will try to get this legislation through Parliament
before it closes for the year. | ask each Committee member to thoughtfully consider how some
aspects of this draft Bill could impose additional burden and stress on already fatigued NDIS
participants and their families in their electorate. | urge the Committee to seek amendments to
these aspects of the draft Bill.
| have appended to this letter a more detailed submission to the Committee.
Yours faithfully
Graham Taylor
? Excerpts from pages 34 and 35 of the document entitled “Explanation of proposed amendments to the National Disability Insurance Scheme Act 2013”, published is support of the earlier exposure draft of the draft Bill.
3 https://www.theguardian.com/australia-news/2021/apr/13/ndis-cost-cutting-taskforce-told-to-reduce growth-in-participants-and-spending
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Copy to:
- The Hon. Bill Shorten MP, Shadow Minister for the National Disability Insurance Scheme
- The Hon. Milton Dick MP (local member)
Submission to the Senate Community Affairs Legislation Committee regarding NDIS
Amendment (Participant Service Guarantee and other Measures) Bill 2021
Author Graham Taylor NDIS’s relevance to the Father of a young man with significant disabilities who has been an Author NDIS participant since mid-2018 Intent of Submission To highlight concerns with proposed changes to NDIS legislation Date of Submission 2 November 2021
TABLE OF CONTENTS
Contents 1 Introduction …………………………………………………………………………………………………………………… 2
2 Background ……………………………………………………………………………………………………………………. 2
3 Comments on Schedule 1 ………………………………………………………………………………………………… 3
4 Comments and questions on Schedule 2 ……………………………………………………………………………. 3
4.1 Practical day-to-day issues ...................................................................................................... 4
4.2 Broader implications ............................................................................................................... 5
5 What this means for the NDIA ………………………………………………………………………………………….. 6
Page 1 of 7
Submission to the Senate Community Affairs Legislation Committee regarding NDIS Amendment (Participant Service Guarantee and other Measures) Bill 2021
Introduction
The Senate has referred the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 to the Senate Community Affairs Legislation Committee (the Committee) for inquiry and report. The author thanks the Committee for the opportunity to comment on the proposed amendments and has prepared this submission to serve that purpose.
Among the material published regarding the proposed changes there is:
- The first reading of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (draft Bill)
- An explanatory memorandum to the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (explanation document)
In support of the comments offered later in this submission the author will provide some background on his son.
Background
The author’s son – referred to hereafter as ‘MJ’ – is a man in his early 30’s. He was diagnosed with Autism Spectrum Disorder (ASD) at the age of two and with a significant intellectual impairment in his school years. He completed his schooling at a state-run special school. In 2008, during a prolonged hospital stay to battle a viral infection MJ developed epilepsy. It took over a year to get the seizures under control, during which time MJ lost further cognitive and motor function.
MJ requires a high level of support, has poor gross and fine motor skills, and consistently demonstrates a range of challenging behaviours.
Prior to entering the NDIS in mid-2018, MJ’s challenging behaviour had become so frequent and intense that his family – fatigued and stressed by the continual conflict with MJ, and tension with his service provider – feared they would have to formally implement restrictive practices.
NDIS enabled MJ’s family to select, hire and train the right kind of people to support MJ. NDIS also afforded access to competent experienced professionals (Speech and Language Pathologists, Occupational Therapists and Psychologists) to help the family and support team build an understanding of how MJ experiences the world and how best to help MJ make his way in that world.
MJ’s transformation in this environment has been nothing short of amazing – though he still has his moments of stress and frustration, he is a much calmer happier young man (a fact backed up by the behavioural data routinely collected by the family and support team).
Submission to the Senate Community Affairs Legislation Committee regarding NDIS
Amendment (Participant Service Guarantee and other Measures) Bill 2021
MJ is currently supported by a team of five individuals who, on their individual shifts, assist him both at home and out in the community.
3 Comments on Schedule 1
This section of the submission focuses on Schedule 1 (participant service guarantee) of the draft Bill — specifically on item 23 on variation of participant’s plan by CEO.
Page 20 of the explanation document — Variation and reassessment of plans — explains what item 22 of the draft Bill will enable the CEO of the National Disability Insurance Agency (NDIA) to do. To quote,
This item inserts new section 47A which enables the CEO to vary a participant’s plan (except the participant’s statements of goals and aspirations), without requiring a plan reassessment to be undertaken, or a new plan to be created. The CEO will have the power to vary a participant’s plan either on the CEO’s own initiative or at the participant’s request, but in either case the participant must be involved in the variation. The intention is that any variation will be for the benefit of the participant.
The purpose of a plan variation is to make minor or technical changes to a participant’s plan or in circumstances prescribed in the relevant NDIS Rules. Typically, this would occur where the variation does not require a reduction or significant increase to the level of NDIS funding. An example of a variation on the CEO’s own initiative would be to correct a technical mistake by the Agency found after the plan had been agreed.
This is the author’s understanding this new power is not constrained by new Plan Administration Rules. These rules provide a list of matters the CEO needs to consider when choosing to vary a plan. However, these matters place no limit on the CEO’s authority to make changes to things like funding and restriction on how funds are used.*
This new power appears broader than that recommended in the Tune Review and is of concern to
NDIS participants and their families. The explanation document does not make a robust case for why the CEO needs this level of unbounded authority to vary a participant’s plan.
4 Comments and questions on Schedule 2
This section of the submission focuses on Schedule 2 (flexibility measures) of the draft Bill — specifically item 36 on payments made under the NDIS.
Pages 44 and 45 of the explanation document — Payments made under the NDIS — explains what item 36 of the draft Bill will enable the NDIA to do. To quote,
4 See https://everyaustraliancounts.com.au/opinion/explainer-what-are-the-proposed-changes-to-the-ndis
act/
Page 3 of 7
Submission to the Senate Community Affairs Legislation Committee regarding NDIS
Amendment (Participant Service Guarantee and other Measures) Bill 2021
The amendments will enable the Agency to pay service providers directly on behalf of participants, including self-managing participants, through a new payment platform. Enabling direct payment to providers will benefit participants in several ways, including:
e Reducing the financial burden on participants with self-managed funding by paying providers of supports directly. Participants will no longer be required to fund the payment of supports up-front from their own funds before claiming payment from the NDIS as a reimbursement.
e Reducing administrative overhead by simplifying the claiming process, compared to manually claiming for payment from the NDIS through the Participant portal or mobile app, including receipt keeping and reconciling payments.
e Helping provide vital data to inform what services and activities appear to be most effective in helping participants achieve their goals; as well as helping to identify where market supply of services may be lacking.
The example provided on page 45 talks of being able to “tap and go” and for “claims made through the new Point of Sale (POS) system” not needing additional record keeping or financial reconciliation.
The author’s questions and comments will be grouped into two sections:
e The first section focuses practical day-to-day issues. e The second section considers broader implications.
4.1 Practical day-to-day issues
References to “tap and go” and “Point of Sale (POS) system” suggest to the author this new NDIS functionality will be realised as a cashless debit card not dissimilar to that already provided by Services Australia’ or something like a virtual credit card® used via a smart phone.
My son MJ can be accompanied by any one of his support workers to an appointment. MJ does not own a mobile device’ that supports POS transactions. Also, a substantial number of MJ’s NDIS
related purchases are made on-line.
This leads the author to pose some questions to the DSS:
QUESTIONS COMMENTARY
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Ifa virtual credit card model is adopted, MJ may be accompanied to an appointment by a. On what kind of device will the any one of his support workers depending on the virtual card be able to be day of the week of the appointment and the installed? weekly staff roster. If the NDIS declined to cover
b. Will the virtual card be able to be_ | the cost of a mobile device for MJ, the virtual
installed on multiple devices? credit card would need to be stored on the mobile device of all support workers. This would
5 https://www.servicesaustralia.gov.au/individuals/services/centrelink/cashless-debit-card 6 https://www.canstar.com.au/credit-cards/virtual-credit-cards/ 7 For example, a smart phone.
Page 4 of 7
Submission to the Senate Community Affairs Legislation Committee regarding NDIS
Amendment (Participant Service Guarantee and other Measures) Bill 2021
QUESTIONS
COMMENTARY
C. Will MJ need to acquire a mobile device? Will NDIS cover the cost of such an acquisition?
- Ifa physical card model is adopted, a. Will it also be able to be stored virtually on a mobile device?
b. Will purchases be able to be made where the card is not present?
c. Will transactions with the card require the use of a PIN?
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How will this new functionality be used to make on-line purchases?
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What is the NDIS doing to mitigate the increased risk of fraud that will likely accompany the introduction of this new functionality?
4.2 Broader implications
be an undesirable arrangement as there would be an increased potential for unintentional misuse and increased risk of the virtual credit card being lost or stolen.
The use of physical card will require a range of support services akin to those provided by commercial card providers. For example,
e Aphone line to report lost or stolen cards.
e Regular statements so participants can review their expenditure and flag fraudulent transactions.
Items such as disposable gloves for the support workers are purchased at a discount from on line stores. This affords those supporting MJ with the flexibility to make this kind of purchase when most convenient and helps get the most out the available funds.
Over many years credit (and debit) card providers have established sophisticated methods and mechanisms to reduce the number of fraudulent transactions. Given the apparent operational similarity of the NDIS’ new payment platform, it seems reasonable to assume industrial-level fraud will at least be attempted.
Also the DSS and NDIS are stating the participant “will not need to keep years of NDIS records and receipts”. This seems very unwise as the participant will have no records to refer to if (when?!) they need to dispute fraudulent transactions with the NDIS. This could see already reduced NDIS budgets bled of needed funds.
The explanation document makes it clear that this new functionality will enable the NDIA to more closely see what participants are using their plan budgets for. This is the same NDIA that has a
Page 5 of 7
Submission to the Senate Community Affairs Legislation Committee regarding NDIS
Amendment (Participant Service Guarantee and other Measures) Bill 2021
Sustainability Action Taskforce in place focusing to “slow growth in participant numbers, slow growth in spend per participant”®.
Also, on 1 March 2021, the then Minister for the NDIS — the Hon. Stuart Robert MP — discussed this functionality in a radio interview with Leon Byner of 5AA’. The context of Mr Robert’s comments where in relation to NDIA’s anti-fraud and inappropriate spending safeguards. See an extract from the interview transcript below.
Leon Byner: Have you, yourself as Minister, cottoned onto something that has been omission that you want to fix with regards to people who get NDIS?
Minister Robert: Lots of things. The- for example, one of them is we don’t pay all invoices. Something like half the scheme is paid to self-managed and we, the Commonwealth, there’s no visibility at all about where payments have gone and we’ve noticed some terrible anomalies people paying for holidays and for yachts.
Leon Byner: For yachts?
Minister Robert: For yachts.
Leon Byner: Are you telling me that people have been getting some assistance form the taxpayer and they’ve used it to buy a boat?
Minister Robert: Yes, yes. And this is what our fraud crackdown has noticed. And one of the easiest ways to get on top of this is for Commonwealth to pay every single invoice. It removes a lot of administrative impediment away from participants anyway and gives full visibility to the Commonwealth. So all that’s happening this year. We’ve had two requests for information and we’re about to go for tender for the provider to do that.
Leon Byner: Yeah. So, in view of the fact that there are people who’ve tried to rort the system. As you will get no matter what you do…
Minister Robert: Of course.
These points suggest the NDIA’s market stewardship role? has the potential to evolve into a transaction-by-transaction critique of participant purchases. If this scrutiny leads to an increase in challenged purchases and demands for refunds, the NDIS experience for the typical participant will get worse. Energy that should be invested in making the most of opportunities NDIS provides will instead be poured into justifying choices and decisions to the NDIA.
5 What this means for the NDIA
The NDIA has already suffered reputational damage in 2021 with the Independent Assessments issue. If the NDIA elects to adopt an aggressive market stewardship role — for example, using algorithms and generic rules to challenge or reject participant purchases en masse — it will further ostracise and embitter NDIS participants and their families.
10 Excerpts from pages 34 and 35 of the document entitled “Explanation of proposed amendments to the National Disability Insurance Scheme Act 2013”, published is support of the earlier exposure draft of the draft Bill.
Page 6 of 7
Submission to the Senate Community Affairs Legislation Committee regarding NDIS
Amendment (Participant Service Guarantee and other Measures) Bill 2021
It will be NDIS participants who are least equipped to deal with a battery of queries from the NDIA who will be the most impacted. This will undermine the original intent of the NDIS to see the disabled in Australia treated as equal citizens.
The author appreciates the evolving and challenging nature of providing a well-rounded service to support and better the lives of individuals accessing the NDIS. The author hopes the above comments demonstrate his – and other families in the same position – experience, and concern for the matter and how it impacts both the author’s son and the greater disabled community. The author will endeavour to continue advocating for the best and most effective service disability support model that can be developed in Australia and hopes his comments would be regarded in good stead.