National Disability Services
NDS Submission on the
National Disability Insurance Scheme
Bill 2012
January 2013
Contact: Dr Ken Baker
Chief Executive
About National Disability Services
National Disability Services is the peak industry body for non-government disability services. Its purpose is to promote and advance services for people with disability. Its Australia-wide membership includes around 800 non-government organisations, which support people with all forms of disability. Its members collectively provide the full range of disability services—from accommodation support, respite and therapy to community access and employment. NDS provides information and networking opportunities to its members and policy advice to State, Territory and Federal governments.
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NDS appreciates the opportunity to comment on the National Disability Insurance Scheme Bill 2012. The Bill’s introduction into Parliament on 29 November 2012 marked a watershed in the history of disability support. When implemented nationally the NDIS will transform disability support in Australia. It will expand access to disability services; increase choice for people with disability and their families and carers; generate economic and social benefits for Australia; and establish an equitable and efficient disability support system that is sustainable over the long term.
Over several years NDS has promoted the concept of the NDIS, campaigned for its introduction and, from the inception of the Productivity Commission inquiry into Disability Care and Support, provided advice on its design. NDS had the opportunity to comment on an earlier draft of the NDIS Bill and acknowledges that the Bill now before Parliament contains significant improvements. NDS believes that the main policy architecture outlined in this Bill is sound, but that further changes to parts of the Bill are necessary.
The Bill will be supported by subordinate legislation which will include details about the NDIS design. Some of this detail will be critical and it is disappointing that draft NDIS Rules are not yet available for comment. NDS would also welcome the opportunity to comment on the guidelines that will inform the day-to-day operations of the NDIS Launch Transition Agency. The service sector is keen to know (and help shape) how the Agency will deal with critical matters, such as price formulation. Pricing principles should recognise factors including the added cost of rural and remote service provision, indexation that reflects reasonable cost increases and the ability of service providers in a market to determine the prices they charge.
The interaction of three components—the NDIS Bill, the NDIS Rules, and the operating guidelines for the NDIS Launch Transition Agency—will determine how the NDIS operates. At this point in time, developing a picture of how the Scheme will unfold—for participants and their families and carers and for service providers—is limited by insufficient information. NDS requests that stakeholders have the opportunity to scrutinize and comment on draft NDIS Rules and operating guidelines before they are finalised.
The following points focus on selected elements of the Bill.
Specific comments on the Bill
General supports Section 13 states that ‘general supports’ (a service or activity that is in the nature of a coordination, strategic or referral service or activity) will be available to people with disability who are not participants. It would be clearer if the Section stated that these supports will also be available to participants (as indicated in Section 33 (2) (a)).
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Funding for persons or entities NDS is pleased to see that Section 14 gives the Agency the mechanism to ‘block fund’ some services. This form of funding makes sense for services where: it would be inefficient or unworkable to require an individual to purchase the service (e.g. volunteer coordination or the provision of information and support by organisations that assist people and families with specific conditions such as Down syndrome, motor neurone disease or Fragile X);
‘thin’ markets (e.g. some services in rural and remote areas) can’t sustain the necessary services; or
a significant upfront investment is required (e.g. in the breeding and training of guide dogs).
Becoming a participant Throughout this part of the Bill there are requirements for the CEO to be satisfied that access criteria are met. Section 21, for example, states that a person meets the access criteria if the CEO is satisfied that the person meets the age, residence and disability or early intervention requirements. While this approach has merit in that it identifies the person who is accountable for the access decision, it appears to give the CEO discretion in interpreting the access criteria. Potentially, there is tension between the NDIS’s entitlement basis (all people who meet the stated criteria are eligible for support) and the CEO’s discretionary power to determine what satisfies the CEO.
CEO decision on access requests Section 20 requires the CEO of the NDIS Launch Agency to respond to an access request within 21 days (by deciding whether the prospective participant meets the access criteria or by requesting further information). NDS sees merit in requiring timely decision-making from the Agency, but this provision may have the unintended consequence of imposing a requirement on the prospective participant to re-apply should the CEO fail to respond within the 21 days. Provision should be made to ensure that, if the Agency fails to act on an access request within 21 days, a prospective participant does not have to re-apply and that their application for access to the NDIS remains active.
Early intervention requirements The early intervention requirements acknowledge the importance of investing to maximise function and reduce a person’s future need for supports. However, Section 25 (c) needs a minor but important adjustment. It states:
(c) the CEO is satisfied that the provision of early intervention supports for the person is likely to:
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(i) mitigate, alleviate or prevent the deterioration of the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management;
This clause fails to reflect the situation of young children who may not yet have developed functional capacity in those areas and need therapy to develop that capacity. The clause should be amended to include the phrase: “or build the functional capacity of the person”.
The 65 year age limit on access to the NDIS will create inequity, with access to support dependent on the age at which a person acquires their disability rather than their need for support. In addition, the age limit creates a perverse incentive for people approaching 65 years to exaggerate the functional incapacity in order to gain access to the NDIS before the door closes.
With minor change the early intervention provisions could help reduce this inequity and this perverse incentive. Legislation should allow access to the NDIS for people who have a diagnosis of a listed degenerative condition (such as motor neurone disease, multiple sclerosis or post-polio syndrome), even if at age 65 they do not yet need formal support services. If the Agency accepted that their condition was likely to deteriorate in coming years (to a point where they would require services) they could be deemed a participant but have their development of a support plan suspended.
To limit the financial risk to the NDIS, a time limit could apply to the plan suspension (for example, the participant would need to be receiving supports by the age of 70 or would cease to be a participant).
When a person ceases to be a participant Section 29 outlines the conditions that determine when an individual ceases to be a participant in the NDIS launch and includes:
(b) the person is aged at least 65 years and has entered a residential aged care service, or is provided with community care, on a permanent basis;
Clarification is required on the interaction of this Section with relevant provisions in the Aged Care Act 1997 and the National Health Reform Agreement 2011, which acknowledge the premature ageing (and associated support requirements) of some Indigenous people. For instance, the National Health Reform Agreement, in outlining the respective roles of governments, states:
Specifically, the Commonwealth will be responsible for:
a) regulating packaged community and residential aged care delivered under Commonwealth aged care programs;
b) funding packaged community and residential aged care delivered under Commonwealth aged care programs for people aged 65 years and over (50 years and over for Indigenous Australians);
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c) funding and regulating basic community care services for people aged 65 years and over (50 years and over for Indigenous Australians); and
d) funding specialist disability services delivered by the States in accordance with their responsibilities under the National Disability Agreement for people aged 65 years and over (50 years and over for Indigenous Australians).
All people aged under 65 years and currently living in residential care or receiving community care should have access to NDIS-funded supports. Ideally, if they remain living in residential care beyond the age of 65, they should be eligible to continue in the NDIS and continue to receive additional services. However, this is not likely to be possible as the Bill indicates that when a person is aged at least 65 years and has entered residential care they will cease to be a participant. In cases like this, NDS hopes commonsense will prevail and the person will at least be able to retain NDIS funded assistive technology and that any additional services they receive are phased out gradually. This would need to be addressed in the Rules or the Agency’s operating guidelines.
The age limit specified in the NDIS Bill will create inequity among people with disability depending on when they acquire their disability. Reducing this inequity and making services available to people on the basis of their need not their age will require considerable further work on aged care reforms and on the interface between the aged care system and the NDIS.
Matters that must be included in a participant’s plan Good planning arrangements will be essential if the objects of the NDIS are to be met. High quality support provision will also be critical.
Section 33 (6) states:
To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered provider of supports.
Section 70 makes reference to ‘a class of supports’ or ‘a class of person’. Not all services which can be purchased under the NDIS should be provided by a registered provider of supports. Services such as gardening or cleaning could, for many people, be purchased from generic gardening or cleaning companies. However, support that is personal or requires disability support skills (such as personal care, community participation, behaviour support and early intervention therapies) should only be sourced from registered providers. This should be so whether the plan manager is the NDIS Agency or a non-government ‘plan management provider’.
Section 33 (6) should specify that when a plan is managed by the Agency or by a plan management provider, certain classes of supports will require a registered provider (the NDIS Rules will contain the criteria for determining classes of supports). This would ensure the Agency or plan management provider uses only registered
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providers for disability support while allowing generic services to be sourced more broadly.
Reasonable and necessary supports Determining what constitutes reasonable and necessary support will be one of the most contentious tasks the Agency undertakes. NDS broadly supports the elements listed in Section 34 that must be satisfied for the CEO to approve the provision of support. The list could be strengthened in one respect, however. With reference to “value for money” Section 34 (c) requires that “the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support”. NDS recommends that this clause also recognise “the diverse costs of service provision across the different regions of Australia”. The cost of service provision varies markedly around Australia and unless this fact is reflected in funding allocations, some participants will effectively be denied access to support in their local communities.
Plan management Whether this is dealt with in the Bill or the Rules, NDS would like to see a commonsense approach to plan management (Section 42) that allows for some supports to be varied within a budget without Agency approval. Allowing for the participant to exchange a segment of community participation for in-home support, or the flexibility to bank some hours in order to attend a special event makes sense (although funding should be tied to other forms of support, such as therapies and equipment, which directly build a participant’s independence and capacity). This flexible approach would minimise administrative burden for participants and the Agency, and the risk to the Agency would be low.
Circumstances in which a participant must not manage their plan The current Bill (Section 44) outlines circumstances that would preclude a participant from managing their own plan, including insolvency and unreasonable risk to the participant.
The list of circumstances should be expanded to include where the CEO has reason to believe that the participant is likely to engage in fraudulent behaviour or where the CEO believes that the participant currently lacks the skills to manage their plan (developing these skills could be built into the participant’s plan).
In the Victorian Individualised Support Package program there is evidence that bad debts are a growing problem affecting the viability of service providers. The Agency will need to minimise this risk for the NDIS.
Section 44 should be amended to include the right of the CEO to consider whether a participant has the financial and administrative skills to manage their plan (particularly when the participant’s support arrangements are complex and will involve the employment or co-ordination of numerous workers); and whether the participant has a history of fraudulent behaviour. In addition, the CEO must have the
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ability to remove the right of a participant to manage their plan where there is evidence of sustained non-payment of tax invoices for services provided under their plan or, in the case of direct employment of staff, where minimum employment conditions are not being met.
Power to obtain information Good data is essential for the management and ongoing development of the NDIS. Section 55 (2) (d) and (e) indicate that the CEO may request information relevant to the “review of a participant’s plan” and for the “monitoring of supports funded for, or provided to, a participant.” The Agency should have a strong interest in understanding whether the NDIS is assisting participants to achieve their goals and aspirations (as detailed in the participant’s statement of goals and aspirations).
As long as information collection does not impose an unfunded administrative burden on service providers or participants, NDS supports this section of the Bill.
NDS notes that this section appears to use the word ‘person’ to include entity, while other parts of the Bill refer to ‘person or entity’. For clarity, ‘person or entity’ should be used wherever appropriate.
Registered provider of supports Section 70 empowers the NDIS Agency to approve a person or entity as a registered provider of supports in relation to “managing the funding for supports” or for “the provision of supports”. NDS is pleased that this function is expressed in this manner.
Participants should be able to choose their plan management provider as well as their support providers. As long as there are plan management providers that are independent of support providers available as an option, and that plan management providers are required to disclose all relevant interests including financial interests (in a manner similar to financial advisors), NDS believes a participant should be free to choose a support provider to manage their plan. In some cases, the registered disability service provider will be the entity that the participant trusts, has a relationship with, and believes best understands their goals.
The criteria for registration will be prescribed in the NDIS Rules and may specify that the person or entity is a registered provider of supports in respect of “a class of supports” or “a class of person”. There are four areas of risk that should be considered when determining if safeguards are needed and/or a registered provider (for a particular class of supports) should be used: participant-related (e.g. vulnerable participants whose disability or circumstances puts them at increased risk of abuse, neglect or exploitation); service-related (e.g. supports that require specialist skills or involve personal contact with participants - personal support, positive behaviour support, high medical support needs or specialised therapies);
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cost-related (e.g. significantly expensive items such as some equipment or extensive staffing requirements); and market readiness or maturity (this is a transition risk where prior to providers or participants developing a sophisticated understanding of how to market to, or wield, consumer power there is a risk of exploitation of market weaknesses to the detriment of participants).
The NDIS Rules should clearly specify the classes of supports and classes of persons which must meet quality assurance standards (and any different quality or regulatory standards that must be met for registration).
Children
Some children are capable of making some decisions for themselves and it is reasonable to expect the Agency to be attentive to the opinions and interests of a participant who is a child (particularly in the preparation of the participant’s statement of goals and aspirations); but giving the CEO the power to over-ride the decisions or wishes of a parent (Section 74) is too much power.
Section 74 should be reviewed. Consideration should also be given to how such a power interfaces with Section 34 (d) which states:
the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
In having the power to act according to the wishes of the child but contrary to the wishes of the parent, the CEO may impose obligations on the parent to help achieve a plan which they did not approve. If the CEO can over-ride parental responsibility, it is inappropriate for the CEO to be also in a position to determine how much support it is reasonable to expect a family to provide. The interplay between these must be carefully considered.
Nominees
NDS accepts that nominees will be required for some people (Sections 78–98). The decision to appoint a nominee should not over-ride (without consent) other legal arrangements that are already in place, such as guardianship. The rationale and criteria for appointing a nominee require careful thought and should be spelled out in the Rules. If a nominee is appointed because the participant is deemed to lack decision-making capacity, consideration should be given to the use of decision making support and including in the participant’s plan skill development in decision making.
Compensation payments There is a financial imperative for the NDIS to ensure that legitimate compensation claims are pursued through the courts. However, granting the CEO the power to require a participant or prospective participant to take legal action (Section 104) is onerous. Some participants will lack the financial resources or be reluctant to take on
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the financial risk of such action. The pursuit of a drawn-out compensation claim could put a participant’s plans to maximize their independence and their economic participation on hold for a significant period while the legal matter is being resolved.
The CEO should have the power to require a participant or prospective participant to make a no-fault claim to a statutory authority; but the power to require a participant to make a common law claim should be substantially restricted. Instead, the Agency itself could take on and manage the compensation claim on behalf of the participant or potential participant as it relates to the cost of support (with permission and where the claim is assessed as likely to be successful). This should not extinguish the participant’s right to pursue compensation under other heads of damage—loss of income and pain and suffering; exercising this right should remain the responsibility of the participant.
Functions of the Agency Section 118 lists the functions of the NDIS Launch Agency. As well as its role in developing and funding a participant’s plan, the Agency should have a role in monitoring the implementation of the plan and identifying barriers to the plan’s implementation. Some of those barriers will sit outside the NDIS (in access to transport or education, for example). Without imposing an undue compliance burden on participants or providers, the Agency should collect information that would assist it in understanding how well participants are able to achieve their plans.
Independent Advisory Council On the membership of the Advisory Council, Section 147 (b) (iii) states that the Minister must ensure that:
at least one of the members is a person who has the skills, experiences or knowledge in the supply of equipment, or the provision of services, to people with disability;
A person skilled only in the supply of equipment would not have the broad understanding of disability services to make them suitable for Advisory Council membership. The essential knowledge base is disability service provision. The very broad range of supports used by people with disability (including early intervention therapies, equipment or assistive technology, accommodation support and supported employment) indicate that having only one person on the Advisory Council who has skills, experience or knowledge in the provision of services is inadequate.
NDS recommends that Section 147 (5) (b) (iii) be amended to: at least 2 of the members are persons who have skills, experience or knowledge in the provision of services to people with disability.
While not necessarily a matter for the Bill, NDS underlines the importance of the Board and the Advisory Council containing experience and knowledge of the diverse conditions across Australia in which disability support occurs (such as state and
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territory differences, Indigenous issues, and rural and remote service delivery challenges).
Review of the Act NDS is pleased a review of the Act (Section 208) will commence on the second anniversary after the NDIS begins operation.
NDS would like to see this section amended to require an independent review of the age requirements at a later time after the NDIS begins operation. The age requirements have caused considerable debate; a review timed to occur after the NDIS and aged care reforms are implemented is warranted. Assessment of the impact of the age requirements (which also determine factors such as the degree to which a person can manage their own support requirements) should include whether people, regardless of their age, receive the supports that are reasonable and necessary to their needs.