the national disability insurance scheme - update
DESCRIPTION
An overview of the National Disability Insurance Scheme as presented at Russell Kennedy on 1 December 2014.TRANSCRIPT
David Fintan, Corporate Counsel and Branch Manager
1 December 2014
Presentation at Russell Kennedy Lawyers, Melbourne
Update for disability services providers
The National Disability Insurance
Scheme
This Bill will inscribe in our laws a substantial and
enduring reform that will fundamentally change the
nature of disability care and support in this nation.
The Hon Julia Gillard, PM in the second reading speech for the National Disability
Insurance Scheme Bill 2012 (Commonwealth, Parliamentary Debates, House of
Representatives, 29 November 2012)
Overview
1. What is the NDIS?
2. Overview of legislation (including objects)
3. Two critical decision points: a) Access
b) Planning
4. Requirements for providers
5. Sector Development Fund
6. Early AAT experience
7. Other features of legislation
1. What is the NDIS?
• Supports people with permanent and significant disability that affects their ability to take part in everyday life
• Individualised packages
• Insurance approach for more stable long term costs and better outcomes
• Choice and control is central
• Needs-driven rather than rationed funding
• Delivered in local community
• Working towards national coverage
What is the NDIS?
What is the NDIS? • Productivity Commission report
– Productivity Commission 2011, Disability Care and Support, Report no. 54, Canberra
• Government agreements
– COAG signed intergovernmental agreement in December 2012
– Bilateral agreements signed in April 2013
• Local arrangements
– From 1 July 2014 the NDIA is operating in seven trial sites
– Systems and processes were tested locally through site rehearsals prior to launch
– We are focused on talking with people and providers at a local level
What is the NDIS?
What is the NDIS?
• Early progress is very encouraging
“NDIS rollout on track and under budget, report says”
—Judith Ireland, Sydney Morning Herald (19 August 2014)
• Committed to continuous learning and improvement
What is the NDIS?
• As at end of Q1 2014-15 (30 September 2014)
– 10,939 participants
– 8,880 approved plans (individualised packages of supports)
– $395.3m committed for participant supports
– 1,350 registered providers of supports
– Participant satisfaction rating 1.67 (on scale of -2 to +2)
• Therefore
– On time, on budget and high satisfaction
2. Overview of legislation (including objects)
• National Disability Insurance Scheme Act 2013 (Cth)
• National Disability Insurance Scheme rules
• Operational guidelines
Our legislation and policies
• Objects include:
– giving effect to UN CRPD (s 3(1)(a))
– supporting independence and social and economic participation (s 3(1)(c))
– reasonable and necessary supports (s 3(1)(d))
– choice and control (s 3(1)(e))
• Importantly, objects are to be achieved by:
– adopting an insurance-based approach, informed by actuarial analysis, to the provision
and funding of supports for people with disability
• Principles include:
– choice and control (s 4(4))
Objects and principles (NDIS Act, ss 3, 4 and 5)
• General supports (s 13)
– services or activities in the nature of coordination, strategic or referral service or activity
• Assistance in the form of funding (s 14)
– for persons or entities (not individualised supports for non-participants)
• Provision of information (s 15)
General supports, etc for non-participants (NDIS Act, Ch 2)
3. Two critical decision points
• Access
– To become a participant in the NDIS a person must meet the access criteria
• Planning
– A participant is entitled to a plan that includes the:
• participant’s statement of goals and aspirations
• statement of participant supports
Two critical decision points
Important information about phasing
Access Phasing Planning
3(a) Access
• Access requests (ss 18 and 19)
• Access criteria (s 21):
– age requirements (s 22)
– residence requirements (s 23)
– disability requirements (s 24) or early intervention requirements (s 25)
• Ceasing to be a participant (s 29):
– death
– 65th birthday and residential care
– revocation (no longer satisfies access criteria)
– voluntary withdrawal
Access (NDIS Act, Ch 3)
• Age requirements (s 22, plus Becoming a Participant Rules, Part 3)
– under 65 years
– SA: under 6 years (2013-14), then under 14 years (2014-15)
– Tas: 14-25 years
• Residence requirements (s 23, plus Becoming a Participant Rules, Part 4)
– 2013 and 2014 NDIS launch areas (amended 1 July 2014 to include ACT, WA, NT)
– special provisions for children with shared parenting arrangements
– continues for 12 months if a person stops residing in an NDIS launch area
Age and residence requirements (ss 22 and 23)
• Disability (s 24(1)(a))
• Permanent (or likely to be) (s 24(1)(b))
• Substantially reduced functional capacity (s 24(1)(c))
• Affect capacity for social or economic participation (s 24(1)(d))
• Likely to require lifetime support under the NDIS (s 24(10(e))
Disability requirements (s 24)
• Will not meet if early intervention support more appropriately funded or provided through another service system (s 25(3))
• Impairment or developmental delay (s 25(1)(a))
• Support likely to benefit by reducing future need (s 25(1)(b))
• Support likely to benefit by improving functional capacity, etc (s 25(1)(c))
• Likely to require lifetime support under the NDIS (s 24(1)(e))
Early intervention requirements (s 25)
3(b) Planning
• Principles (s 31)
• Phasing arrangements (ss 32 and 32A)
– specific to each jurisdiction and reflected in NDIS rules
• Must include (s 33):
– participant‘s statement of goals and aspirations (s 33(1))
– statement of participant supports (s 33(2))
• No means test (this is critical)
Creating a plan (NDIS Act, Ch 3)
• A different approach to decision making
• Reminder of objects, principles, etc in background
– giving effect to UN CRPD
– choice and control
– insurance-based approach
– Intergovernmental Agreement on the National Disability Insurance Scheme Launch (NDIS
Act, s 118(2)(a))
Reasonable and necessary supports (NDIS Act, s 34)
• Decision makers must exercise judgment
• Decision makers must be satisfied of six matters in s 34:
– assist to pursue goals, objectives and aspirations
– assist to undertake activities to facilitate participation
– value for money
– effective and beneficial
– takes account informal networks and community support
– most appropriately funded by the NDIS
Reasonable and necessary supports (NDIS Act, s 34)
• NDIS rules provide more detailed law
– National Disability Insurance Scheme (Plan Management) Rules 2013
– National Disability Insurance Scheme (Supports for Participants) Rules 2013
• Operational Guidelines published by the NDIA’s CEO provide more detailed
guidance
Reasonable and necessary supports (NDIS Act, s 34)
• Therefore, few rigid or prescriptive rules
• Results may well be different for different participants
• It will be interesting to see how the law in this area develops – to date there
have been 19 requests for AAT review (with three hearings and four
published decisions)
Reasonable and necessary supports (NDIS Act, s 34)
• Participant can change participant’s statement at any time (s 47)
• Participant can request review of plan (s 48(1))
• CEO or delegate may review plan on own initiative (s 48(4))
• Outcome of review is a new plan (s 49)
• Note AAT’s decision in Burston and NDIA [2014] AATA 456 (4 July 2014)
Reviewing and changing a plan (NDIS Act, Ch 3)
4. Requirements for providers
• Person or entity may apply (including partnerships or unincorporated
associations) to be a registered provider of supports (s 69)
• Two types:
– managing the funding for supports under plans
– provision of supports
• If funding for supports under plan managed by Agency – supports to be
provided only by registered provider of supports (s 33(6))
• National Disability Insurance Scheme (Registered Providers of Supports)
Rules 2013 (NDIS rules)
Registered providers of supports (Chapter 4, Part 3)
• Criteria (NDIS rules, Part 3):
– ABN and bank account
– agreement to be bound by Agency terms of business
– compliance with employment and WHS laws (including contractors)
– compliance with other laws punishable by criminal penalty
– suitable to provide supports/manage funding (having regard to
approvals, capacity, experience)
– conflict of interest
Criteria for approval (NDIS rules, Part 3)
• States/territories continue to be responsible for quality assurance and
safeguards
• Requirements (NDIS rules, Part 4)
– must notify Agency of certain matters (ie, complaints, adverse action by
responsible authority, insolvency, failure to comply with laws)
• Revocation (NDIS rules, Part 5)
– In limited circumstances and only where unreasonable risk to one or
more participants
Requirements for registered providers (NDIS rules)
5. Sector Development Fund
• Approximately $149 million available for 5 years from 2012-13 for
programs and activities to help both individuals and organisations
transition to the NDIS
• Key areas:
– Strengthening governance
– Managing change
– Recruitment and retention
– Providing support to Indigenous Australians
– Providing support to people with severe and persistent mental illness
Sector Development Fund
• Managing change
– National NGO Readiness Assessment Tool (NDS)
• Recruitment and retention
– National Disability Services Carecareers program
• Indigenous Australians
– First People’s Disability Network
• Mental health
– Mental Health Council of Australia
Sector Development Fund
6. Early AAT experience
Early AAT experience (as at December 2014)
Host
jurisdiction
Applications
for AAT
review
Type of decision
under review
No
jurisdiction
Withdrawn
by
applicant
Resolved
by
agreement
Un-
decided
Decided by AAT
Access Planning Set
aside
Dis-
missed
Varied Affirmed
NSW 4 3 1 2 - 1 - - - 1
Vic 13 7 6 1 1 8 2 - 1 - 1
SA 4 1 3 1 1 - 1 - 1 1
Tas 1 1 - - - 1 - - - -
ACT - - - - - - - - - - -
NT - - - - - - - - - - -
WA - - - - - - - - - - -
TOTAL 22 12 10 4 2 10 1 - 1 1 3
• Mulligan and NDIA [2014] AATA 374 (13 June 2014)
– access (substantially reduced functional capacity, s 24(1)(c))
• Young and NDIA [2014] AATA 401 (20 June 2014)
– supports (whether most appropriately funded through NDIS, s 34(1)(f))
• TKCW and NDIA [2014] AATA 501 (23 July 2014)
– supports (whether effective and beneficial, s 34(1)(d))
AAT decisions (as at December 2014)
6. Other features of legislation
• Deals with matters including:
– Information gathering powers (Part 1)
– Privacy (Part 2)
– Registered providers of supports (Part 3)
– Children (Part 4)
– Nominees (Part 5)
– Review of decisions (Part 6)
• Internal review
• AAT review
Administration (NDIS Act, Ch 4)
• NDIS complements – and does not replace – existing compensation
mechanisms
• If a participant receives compensation, then the component intended to
cover reasonable and necessary supports offsets NDIS amounts
• A participant (or prospective participant) who is, or may be, entitled to
compensation can be compelled to pursue it
• NDIS rules provide detailed guidance
Compensation (NDIS Act, Ch 5)
• National Disability Insurance Scheme Launch Transition Agency
– known as NDIA
– functions set out in s 118
– Board
– CEO
– scheme actuary
– APS staff
– Independent Advisory Council
– reporting through Ministerial Council (reflects cooperative arrangements)
NDIA (NDIS Act, Ch 6)
• Debt recovery
• Notifications
• Liability
• Delegations
• Unincorporated bodies
• Constitutional matters
• Review of the NDIS Act
• Legislative instruments and regulations
– Important: Commonwealth Minister’s power to make certain NDIS rules is subject to host jurisdiction (ie, states and territories) agreement
Other matters (NDIS Act, Ch 7)