Health Services Union
SENATE INQRY SUBMISSION
Senate Community Affairs Legislation Committe
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017
August 2017
About Us
Introduction
Concerns with Bill Design
NDIS Code of Conduct (Section 73V)
NDIS Practice Standards (Section 73T)
Disclosure of Protected Information by Commissioner (Sections 67E-F)
Provider Registration Standards and Conditions (Sections 73B, 73E, 73F,
73G, 73H, 73N, 73P)
Definition of Adequate Record-Keeping by Registered NDIS Providers (Section 73Q)
Complaints Management and Resolution (Sections 73W, 73X)
Incident Management System for Registered NDIS Providers (Section 73Y)
Reportable Incidents (Section 73Z)
NDIS Provider Register Changes and Obligation to Publish (Section 73ZS)
Boundary and Interface Issues
Worker Screening
Appropriateness of Bill for Higher-Risk Participants
About Us
The Health Services Union (HSU) is one of Australia’s fastest growing unions with over 70,000 members working in the health and community services sector across the country.
Our members work in aged care, disability services, community health, mental health, alcohol and other drugs services, private practices and hospitals. Members are health professionals, paramedics, scientists, disability support workers, aged care workers, nurses, technicians, doctors, medical librarians, clerical and administrative staff, managers and other support staff.
We are the primary disability services union in Victoria and Tasmania, representing support workers at the frontline of service delivery. We also represent a number of support workers in New South Wales, Western Australia and the Australian Capital Territory, along with allied health professionals in every jurisdiction except Queensland. Our broad membership gives us a unique insight into the rollout of the National Disability Insurance Scheme (NDIS), how the scheme is interfacing with other mainstream services and the market and workforce issues critical to the scheme’s success.
For questions regarding this submission, please contact: Chris Brown, National Secretary, Health Services Union Leigh Svendsen, Senior National Industrial Officer, Health Services Union
Introduction
The HSU welcomes the opportunity to provide input into the review of National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (the Bill). The proposed Bill is designed to give legislative effect to the National Disability Insurance Scheme (NDIS) Quality Safeguarding Framework (QSF), the key components of which are still under development: in particular, the NDIS Code of Conduct (the Code) and the NDIS Practice Standards. At the outset, the HSU wishes to convey its significant concern that the contents of these core elements are still largely unknown. Consequently, it is difficult to make a fully informed submission to the Committee on the effectiveness of the Bill in ensuring effective quality and safeguarding arrangements for NDIS participants. Notwithstanding this limitation, this submission will firstly highlight concerns regarding the design of the Bill, specifically the reliance on NDIS rules to give effect to meaningful quality and safeguarding arrangements. Secondly, it will highlight key boundary and interface issues with the proposed Quality and Safeguards Commissioner (the Commissioner) and the National Disability Insurance Agency (NDIA). Thirdly, it will highlight our concerns regarding the Bills limited emphasis on worker screening. Finally, it will highlight concerns regarding whether the Bill is fit-for-purpose given the likely composition of the NDIS participant market. The HSU would welcome the opportunity to provide further comments to the Community Affairs Legislation Committee (the Committee) during its consideration of this Bill.
State and Territory Quality and Safeguarding Arrangements
The following outlines specific sections of the Bill where the HSU believes there should be more legislative clarity and less reliance on NDIS Rules, which the Minister may or may not make.
NDIS Code of Conduct (Section 73V)
Section 73V of the Bill makes provision for the establishment of an NDIS Code of Conduct (the Code). The Bill is silent on the contents of the Code and only establishes civil penalties for persons who fail to comply with the Code. Whilst the Department of Social Services (DSS) recently issued a Discussion Paper on the draft Code, very little is known regarding its contents outside of this Discussion Paper.$^{\text{3}}$ The HSU made a submission to the DSS Discussion Paper highlighting significant concerns that a single Code will apply to providers, paid workers and volunteers. By attempting to capture all three cohorts in a single Code there is likely to be confusion about which aspects of the Code applies to specific cohorts. The HSU submits that separate Codes should be developed for providers, paid workers and volunteers, which reflect the different roles and responsibilities of these distinct cohorts. Should this recommendation be adopted, the Bill would need to be amended to reflect the existence and operation of multiple Codes.
NDIS Practice Standards (Section 73T)
Section 73T of the Bill makes provision for the development of NDIS Practice Standards. The Bill stipulates that non-compliance with the Practice Standards by registered NDIS providers constitutes a breach of their registration conditions, beyond this stipulation, however, the Bill sheds no light on the contents of the Practice Standards. Given the centrality of the Practice Standards to the effectiveness of the Bill, including their likely coverage of worker screening as per Section 73T(3)(d), the HSU is concerned that the Senate is being asked to support a Bill without all the relevant information. We recommend that the Senate delay a vote on the proposed Bill until draft Practice Standards are issued by the DSS and proper public scrutiny is able to occur. Alternatively, an amendment to the Bill should be introduced, which details key principles governing the NDIS Rules related to Practice Standards.
Disclosure of Protected Information by Commissioner (Sections 67E-F)
The Bill establishes parameters by which and to whom the Commissioner may disclose protected information; however, Section 67F stipulates that NDIS Rules may make provisions for or in relation to the exercise of this power. As drafted, the provisions in the Bill are so open there is nothing to preclude the Commissioner making protected information available generally on the basis that it is in the public interest to do so. While Section 67F enables the NDIS Rules to make provisions, again there is no requirement that the Minister will do so.
Provider Registration Standards and Conditions (Sections 73B, 73E, 73F, 73G, 73H, 73N, 73P)
Again, little detail is provided in the Bill and instead NDIS Rules will determine the meaningful standards and conditions for provider registration. For example, NDIS Rules rather than the Bill will determine what constitutes “high-risk” supports; the types and/or degree of third-party quality auditing required by different classes of providers; or any other conditions the responsible Minister or the Commissioner deems appropriate.
Definition of Adequate Record-Keeping by Registered NDI Providers (Section 73Q)
The Bill provides no detail of what constitutes adequate record keeping by registered NDI providers. All record keeping requirements will be established in NDI Rules.
Complaints Management and Resolution (Sections 73W, 73X)
Section 73W of the Bill stipulates that registered NDI providers must “implement and maintain a complaints management and resolution system,” however, again, all details relating to the form and functions of such a system are missing in the Bill and will instead be determined by NDI Rules.
Strangely, the Bill does stipulate in subsection (a) that the complaints management and resolution system must be “appropriate for the size of the provider and for the classes of support or services provided by the provider,” but it is silent on what would be considered appropriate. The HSU believes more guidance is required in the Bill to avoid future disputes between the Commission and providers.
Section 73X of the Bill provides general guidance on the likely substance of NDI Rules regulating the management and resolution of complaints, however, the Committee should note that the Bill itself will not enshrine these arrangements in legislation.
Incident Management System for Registered NDI Providers (Section 73Y)
Section 73Y is almost identical to the provisions in Section 73W, requiring that registered providers have an incident management system in place and stipulating that the system be “appropriate for the size of the provider and for the classes of supports or services provided by the provider.” The HSU recommends that further detail be enshrined in the Bill itself given then importance of properly recording incidences of poor practice, abuse or neglect.
Reportable Incidents (Section 73Z)
Section 73Z of the Bill provides some more legislative detail regarding the obligation of NDI registered providers to notify the Commissioner of “reportable incidents” and provides examples of six reportable incidents, including the death, serious injury, abuse, sexual misconduct and unauthorized use of restrictive interventions. Nevertheless, the Minister or Commissioner may change the definition of reportable incidents at any time by adding or removing from this list through NDI Rules.
NDIS Provider Register Changes and Obligation to Publish (Section 73ZS)
Section 73ZS stipulates that the Commissioner must establish and maintain an NDI Provider Register, but that this register “may be kept in any form that the Commissioner considers appropriate.” Whilst subsection 7 clarifies that NDI Rules may make provision for this register to be published “in whole or part” the HSU recommends that publication of the register be enshrine din the Bill itself given the importance of accurate information to NDI participants in a competitive market for disability services.
Boundary and Interface Issues
The HSU is concerned that the Bill provides no powers to the Commission to override NDIA decisions. This is particularly concerning given the NDIA’s role in controlling NDI prices (both price caps for support items and the value of participant plans) which are significant drivers of quality service delivery. The Committee should be aware that the DSS, in its recent Discussion Paper on the Draft NDI Code of Conduct, makes reference to a scenario whereby a registered NDI provider found to breach the Code could be obligated via a binding direction to immediately increase their
Staffing and Training Profiles
Yet how could this be direction be operationalized if there is no change to a participant’s NDIS funding package? While the HSU supports the Commission making these kinds of directions, unless there is a corresponding increase in participant funding to pay for increased staffing levels providers will simply seek to do more with less and/or withdraw services from more complex clients. In the case of the latter scenario, the language of the Bill would appear to preclude the Commission from making any binding direction to providers which would increase their costs, given that Section 181E, Subsection (ii) states that one of the core functions of the Commissioner is “monitoring and mitigating the risks of unplanned service withdrawal.” The HSU recommends that the Bill be amended to require the Commissioner to consider the cost ramifications of orders to improve training, staffing levels and other associated business costs when making a binding direction to registered providers. Where there is likely to be a substantial increase in service delivery costs as a consequence of binding directions, the Commissioner must be authorized within the Bill to seek an expedited plan review for affected participants and/or override NDIA pricing decisions. This is a critical and essential change and one that the Committee should consider carefully. Worker Screening The functions of the Commissioner are primarily focused on registered providers of NDIS services and these functions are essentially optional and to be contained within other instruments or agreements with the states. ‘Workers’, ‘persons employed’ or ‘employment’ are rarely referenced within the provisions seeking to deal with quality and safeguarding, with the only enforceable functions relating to individual workers being banning orders. Provisions for the consultation and development of a nationally consistent worker screening process is the only preventative provision targeted at the NDIS workforce. These provisions are ones which may be developed; or, as the Bill refers to an agreement with the participating jurisdictions, ones on which agreement may be sought. Again, there is no detail in the Bill regarding what workforce screening will look like, instead this vital preventative and corrective safeguard is subordinated to Ministerial discretion through the process of NDIS Rules, specifically the NDIS Practice Standards Rule. Furthermore, the Bill only provides for a nationally consistent screening process, rather than a single national screening process. As drafted, the Bill only provides functions for the Commissioner to provide national leadership on workforce screening, with individual States and Territories responsible for enacting or amending legislation to give effect to worker screening. There is no reference to information-sharing between jurisdictions regarding workforce screening, giving rise to the possibility that an individual barred from practice in one jurisdiction could practice in another. In the HSU’s submission worker screening must be standard; held by a third party [government]; provide screening for a person seeking employment or individual provider registration; should provide for tiered clearance; and should provide that clearance for whichever employer or provider relationship the person seeks to access. Finally, whilst the Bill confers powers on the Commissioner to make banning orders for individual workers if a participating jurisdiction informs the Commissioner that a worker has not met the conditions of its worker screening policy, this is ultimately a negative licensing scheme (i.e., excluding workers after harm has already occurred to an NDIS participant). The HSU submits that a better option would be the establishment of a truly national registration and accreditation scheme
Appropriateness of Bill for Higher-Risk Participants
The proposed additions to the NDIS Act contained within the Bill, in the HSU’s view, do not go far enough. The HSU submits that all of the supporting Codes, Practice Standards or other NDIS Rules must recognise that many of the participants who will receive NDIS supports are vulnerable and will not be making unassisted decisions. Whilst a number of NDIS participants will require limited if any assistance to purchase the reasonable and necessary supports to enable their enhanced participation in life, the vast majority of NDIS participants will not be controlling their own funds, and will require protections built into the scheme that the current Bill does not facilitate. The HSU submits that the QSF and the Bill, when trying to strike a balance between the dignity of risk and appropriate safeguards for vulnerable people, the scales are tipped to the former. This ignores the fact the most recent best-estimates from outgoing NDIA Chair, Bruce Bonyhady, are that participants with intellectual disability will comprise 70% of full-scheme participants. This is not to say that the HSU and its members believe people with disabilities (physical, sensory, intellectual or cognitive) do not have the capacity to make choices, rather we simply highlight the potential hazards of choice for those most at-risk participants and the need for a robust regulatory framework. The Committee must remain cognisant that not all social groups (or groups within a broader social group) have the same capacity to exercise choice, based on their command of information and other resources. Therefore, market forces alone are not strong enough to deliver quality outcomes. Key lessons from other countries that have moved to marketized models of care is that when government(s) failed to acknowledge its role in implementing effective regulatory standards and more generous performance incentives for high-quality providers, the workforce suffered and support standards were compromised. The United Kingdom provides a good example of this, with
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the introduction of a direct payments scheme for care of older people as detailed by Macdonald and Charlesworth.6
6 Macdonald. F. and Charlesworth, S. (2015) “Cash for care under the NDIS: Shaping care workers’ working conditions?” in Journal of Industrial Relations