NDIA Accountability Project

Variable responses to Reportable Incidents and Commission processes

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Joint Standing Committee

Inquiry into NDIS Quality and Safeguards Commission

Submission from Cara

Registered NDIS Provider: 4-3LLK-806

31st July 2020

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Terms of Reference

As part of the committee’s role to inquire into the implementation, performance and governance of the National Disability Insurance Scheme (NDIS), the committee will inquire and report on the operation of the NDIS Quality and Safeguards Commission since it commenced operation on 1 July 2018, with particular reference to:

a. The monitoring, investigation and enforcement powers available to the Commission, and how those powers are exercised in practice;

The monitoring, investigation and enforcement powers available to the Commission via the Acti appear generally sufficient, but in practice the exercise of those powers, and resources available to the Commission to exercise those powers, appears grossly inadequate.

The Commission compliance framework refers to the “Compliance Pyramid” of tools available to the Commission, with specific reference to “the primary approach to achieving ongoing compliance and building the capacity of the sector is to educate, advise and encourage” providersii. This primary approach has not been seen in practice. The primary approach most often

appears to be desktop  investigation following reportable  incidents, and issuance  of

compliance notices, in a reactive approach to customer safeguarding rather than a proactive and preventative approach.

Cara has received a small number of what could be considered “Compliance Notices”, but not of the structure referred to in the Commission “Compliance and Enforcement Policy”.iii The Commission has provided written communication identifying “themes” of concern, but without actions or timeframes required of the provider to remedy. It remains unclear if this constitutes a Compliance Notice, or where this type of communication fits in the Compliance Pyramid. Cara has also received a “Compliance Warning” letter in March 2020, following a complaint originally made to the Commission between September 2018 and January 2019. The initial complaint remained unresolved by the Commission in August 2019, and passed to the Compliance Team of the Commission for further action. Throughout this period, Cara remained willing to resolve the complaint, and responded to each request for further information as received from the Commission. The powers available to the Commission in this matter appear to have been exercised incorrectly, and Cara is still unaware if the original complaint of 2018 has been resolved to the satisfaction of the participant.

Cara has experienced highly variable responses from the Commission to Reportable Incidents, and often disproportionate to the incident or allegation that has occurred. Where there is a risk to customer safeguarding, Cara has routinely removed worker/s from the situation to safeguard the customer during investigation, only to be asked by the Commission why the worker has not been disciplined further within 24 hours of the incident/allegation being raised. There appears to be little understanding amongst Commission staff of industrial requirements or procedural fairness principles.

The Commission does not appear to be sufficiently resourced to allow for an investigation at the request of a provider or participant, and requires providers to undertake an investigation internally, or appoint an external investigator at the provider’s discretion. Both alternatives lack the independence sought from a Commission-led investigation, and increase the administrative burden on providers operating in a price-capped environment.

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Recommendations

  1. The Commission apply the framework of the Compliance and Enforcement Policy in all communication with providers, and clearly articulate the requirement of providers to respond to compliance matters.

  2. Commission staff to receive training in industrial relations and procedural fairness principles.

  3. The Commission to be sufficiently resourced to carry out an investigation at the request of a provider and/or participant

b. The effectiveness of the Commission in responding to concerns, complaints and reportable incidents – including allegations of abuse and neglect of NDIS participants;

Cara has experienced a highly variable response to incident reported depending on the staff and level of understanding and knowledge of disability supports. The best measure of the impact of an incident on a participant is often gained directly from the participant. The Commission appears not to contact participants or nominees following an incident, and relies on the information and evidence provided by providers. The volume and breadth of evidence requested from providers to support actions taken following an incident could sometimes be dealt with more efficiently through contact with the participant and/or their nominee. There appears to be little correlation between the nature of the incident, the impact on the participant, and the amount of evidence sought by the Commission to justify the providers actions.

The framework of Reportable Incident Notification requires immediate notification within 24 hours, followed by further notification 5-days post incident. In many cases, a phone call has been received from the Commission following the Immediate Notification with a range of questions that will be answered in the 5-day notification. The structure of the reporting framework, combined with telephone calls and emails on an ad-hoc basis after immediate notification, has caused significant duplication and administrative burden for providers. The same data is often requested verbally via telephone call, and in writing via Reportable Incident notification.

Complaint handling by the Commission has been variable in practice. There appears to be no timeframes for the Commission to respond or investigate complaints. Cara is aware of cases where a complaint made to the Commission has taken over 6 months to be addressed, although responses from Cara were provided in short timeframes when requested by the Commission. The focus on resolution of complaints appears to vary across Complaint Officers in the Commission. Cara has experienced high quality, solution focused complaint handling in some cases, and low quality, general information gathering with lack of clarity of the solution being sought by the complainant in other cases. A greater focus on the timely resolution of complaints would benefit both participants and providers.

Reportable Incidents related to the use of an Unauthorised Restrictive Practice require further support and involvement of the Commission. Quite rightly, the Commission needs to have a focus on the reduction and removal of restrictive practices. Where practices are unauthorised Page 3 of 9

due to the absence of a behaviour support plan, the Commission requires providers to report each instance of the practice being used. In many cases, providers are not able to expediate or influence the consent process, but are being asked to continue reporting practices that remain unauthorised. An example of this scenario is provided in Appendix 1. In cases where participants lack NDIS funding for development of a behaviour support plan, evidence and advocacy for additional NDIS funding is required from the Commission.

In regards to responding to incidents, the sharing of data and requirement to manually enter data into the Commission portal creates an unnecessary administrative burden on providers.

Since  1st  July 2018, Cara has been advocating  for the development  of  application

programming interfaces (API’s) that would allow data to be exported/imported directly to the Commission from providers, alleviating the need for manual data entry, and reduce the duplication of entering data into provider Incident Management Systems and the Commission portal. There appears to be little progress in this area, and Cara has increased 2 FTE to address the data entry requirements that could be met through the use of API’s. The resources required could be put to better use in incident prevention and quality improvement.

Recommendations:

  1. The Commission to contact participants to confirm the impact of incidents

  2. The Commission to advocate directly with the NDIA for participants who require development of behaviour support plans but lack NDIS funding

  3. The structure of the Reportable Incidents frame work be reviewed to decrease duplication of effort in reporting

  4. Development of application programming interfaces (API’s) and the ability for the Commission to accept data from other programs, eliminating the need for manual data entry.

c. The adequacy and effectiveness of the NDIS Code of Conduct and the NDIS Practice Standards;

The NDIS Code of Conduct and NDIS Practice Standards appear adequate, however the application of both by the Commission has been highly variable as discussed in other responses.

d. The adequacy and effectiveness of provider registration and worker screening arrangements, including the level of transparency and public access to information regarding the decisions and actions taken by the Commission.

The provider registration process experienced by Cara has been inadequate, and after commencing registration renewal in September 2018, Cara is still awaiting re-registration. Audit processes appear adequate, and appointment of a Commission approved quality auditor was a relatively simple process. Cara has been informed that as registration renewal is not complete, audit review timeframes have not commenced. Cara is not aware of the reason for delays in registration renewal, but has been informed by the Commission that delays are due to ongoing compliance matters. Cara is not aware of any ongoing compliance

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matters requiring a response from Cara. In essence, the delay in registration renewal by the Commission means that there will be 2 ½ years between audits at minimum. This extended period between audits devalues the audit process, and does not appear to provide adequate customer safeguarding or quality control. A detailed timeline of events is provided in Appendix 2.

The interim worker screening arrangements in place for South Australia appear inadequate in terms of communication between state and federal bodies. Worker screening is carried out at State level by a department of the South Australian Government. The screening process itself appears to adequately identify workers with previous convictions and/or allegations that would be of concern if working with vulnerable people. However, the lack of a nationally consistent screening or clearance process means that workers may not receive a clearance in one state due to previous convictions or incidents, but may obtain a clearance in another state due to lack of information sharing nationally. Likewise, lack of information sharing between the Commission and the State means that a worker may maintain a clearance to work who would otherwise be removed for reasons known to the Commission.

Recommendations:

  1. Timeframes are set for the Commission to process registration renewals
  2. Audit timeframes are set from the date of previous audit 3. National worker screening arrangements are expedited to provide consistent

screening and clearance that applies across states and territories

  1. Information sharing protocols between the Commission and worker screening units are established.

e. The effectiveness of communication and engagement between the Commission and state and territory authorities;

As discussed previously, communication between the Commission and State and Territory authorities is ineffective. The Commission frequently requests information from providers that would be better obtained directly from State authorities in areas such as Health or Child Protection. The lack of agreement or protocols for information sharing between the Commission and State authorities results in providers seeking information from State authorities, and passing the information to the Commission. This is particularly the case in Reportable Incident notification, when information and evidence is often sought by the Commission from the provider, who in turn is required to seek information from the doctor, hospital, health practitioner, police, or other State authority.

Recommendations:

  1. Information sharing protocols between the Commission and state and territory authorities are established.

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f. The human and financial resources available to the Commission, and whether these resources are adequate for the Commission to properly execute its functions;

Cara is unaware of the human and financial resources available to the Commission, but has concerns at the apparent lack of resources available for investigations as discussed earlier. Time delays in complaint investigation and provider registration renewal seem to indicate that human resources are inadequate for the Commission to execute its functions in a timely manner.

Recommendations:

  1. Review of the human and financial resources available to the Commission g. Management of the transition period, including impacts on other commonwealth and state-based oversight, safeguarding, and community engagement programs;

The transition from State to Commonwealth left a significant gap in practical safeguarding measures available to ensure participant safety. On transition of disability support funding from States and Territories to the Commonwealth, the powers of the State based Community

Visitor Scheme were  eroded, and each  state and  territory implemented  different

arrangements for the existing schemes. The Community Visitor Scheme in South Australia provided an important, independent visitor for people living in arrangements previously termed “group homes”, or people at significant risk in the community. On transition to Commonwealth governed arrangements, the scope of the South Australian Community Visitor Scheme was reduced to visit people “living in state-run disability accommodation” onlyiv. This effectively removed the structure of independent visiting and safeguarding for people receiving services from non-government organisations. The Commission does not appear to have the capacity or framework to conduct visiting in a similar manner, and this has resulted in greater risk of isolation and closed communities, where people with complex and multiple disabilities are sharing a home.

Recommendations:

  1. The Commission develop a nationally consistent agreement with states and territories for a Community Visitor Scheme, or similar independent method of checking service quality, to be available to all NDIS participants.

h. Any related matters. In terms of safeguarding NDIS participants, there are areas currently considered “out of jurisdiction” for the Commission which have significant impact on the safety of NDIS participants. These include providers who are not NDIS registered, and family-related incidents that are observed by an NDIS provider. Cara has observed incidents with Cara

customers  that would be  considered  Reportable  Incidents under the Commission’s

framework, but which occur at the hands of the customer’s family member or staff of a non registered NDIS provider. In these cases, Cara has completed a third-party notification of a

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Reportable Incident to the Commission. Cara has been informed that the matter is “out of jurisdiction”, and the Commission is not able to conduct further investigation. There appears to be a gap in oversight and safeguarding of NDIS participants in these situations.

Recommendations:

  1. The Commission investigation and enforcement powers be extended to all NDIS funded participants.

  2. The Commission monitoring, investigation and enforcement powers be extended to include non-registered providers of NDIS funded supports.

Todd Williams

Executive Manager

Customer and Stakeholder Engagement

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Appendix 1

Unauthorised Restrictive Practice reporting

When a medical practitioner has prescribed a medication that influences behaviour, the Commission requires the medication to be included in a Positive Behaviour Support Plan (PBSP) because the Commission considers this type of medication as a chemical restraint. If the participant does not have a PBSP, the practice of administering the medication is considered a Restrictive Practice, and remains Unauthorised until a PBSP is in place. Unauthorised Restrictive Practices are required to be reported to the Commission at each use or administration.

The situation routinely arises where a participant is prescribed a new medication by a General Practitioner to reduce anxiety and anxiety related behaviour. Due to the participant’s particular disability, support workers are required to support the participant physically to take the medication. If the medication is not mentioned in an existing PBSP, which is likely, or the participant does not have a PBSP as one was not previously required, the support provider is required to report to the Commission an Unauthorised Restrictive Practice at each administration of the medication until it is included in a PBSP. The participant may not have funding for a Positive Behaviour Support practitioner to write the PBSP, or if funding is available, may not contract a practitioner to develop their PBSP. Nevertheless, the service provider is required to continue reporting an Unauthorised Restrictive Practice indefinitely until the medication and its administration is included in a PBSP, over which the service provider may not have purview. If the medication is taken daily, the Commission requires service providers to report an Unauthorised Restrictive Practice daily. The same scenario exists for other types of restrictive practices also.

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Appendix 2

Cara Registration Renewal Timeline

  1. Transition to NDIS Commission on 1st July 2018.

  2. Cara’s registration end-date listed as 30th September 2018 in NDIS Commission portal.

  3. Cara commenced application for re-registration, and submitted on 27th September 2018, application reference no: 4-9I0X9WY.

  4. Appointed approved quality auditors in November 2018, and scheduled audit for April

  6. Audit carried out 2nd-4th April 2019.

  7. One corrective action identified, addressed, and accepted by Auditors on 11th April

  9. Cara accepted the auditor’s report on 14th April 2019, and understood it was provided to the NDIS Commission in similar timeframe.

  10. In January 2020, Cara began negotiating timeframes for a mid-term audit with Auditors to be scheduled in June/July 2020.

  11. In April 2020, on questioning audit dates, Cara was informed by the NDIS Commission that as registration renewal had not been completed, dates for the mid-term audit should not be set. Advice received from NDIS Commission that when renewal is finalised, registration would be dated from the date it is processed, and then Cara will have 18 months to schedule its mid-term audit (presumably July-Dec 2021, depending on when re-registration is processed by the Commission).

  12. Cara requested an update of registration renewal, and response on 15th April 2020 indicated that “Due to ongoing compliance matters, your registration is still in progress and as you are aware, this currently does not impact on you as a provider.”

  13. At 31st July 2020, registration renewal is still outstanding. i https://www.legislation.gov.au/Details/C2018C00276

ii https://www.ndiscommission.gov.au/document/666

iii https://www.ndiscommission.gov.au/document/666

iv https://communityvisitorscheme.sa.gov.au/home

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