The Provider Loft

Supporting small and medium NDIS and health providers in Australia

David Kinnane

Do I need a diagnosis to get access to the NDIS?

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We get asked this question a lot.

From a legal perspective, the answer is “no”. 

The Federal Court of Australia – most recently in an important case called National Disability Insurance Agency v Davis [2022] FCA 102 (the Davis case) – has been very clear:

  • The NDIS Act does not focus on the name of a person’s disability, nor the diagnosis given to a person. 
  • The NDIS Act is not concerned with what caused a person’s disability. 

Instead, the NDIS Act requires the National Disability Insurance Agency (NDIA) to look at impairments experienced by a person that may require ‘supports’ so that the person can participate in personal and community life. Anyone who meets the access criteria in the NDIS Act can be a participant – regardless of diagnosis, and regardless of whether their disability came about by birth, disease, injury or accident.

So why is everyone so focused on labels and diagnoses? 

An important question. To answer it, we’ll look, first, at early intervention; and then NDIS access, generally.

1. NDIS access for children under 7 years of age

In a previous article, we looked in detail at some practical issues facing families when trying to access early intervention supports funded by the NDIS. As a matter of law, it’s clear that you don’t need a formal diagnosis for your young child to access supports from the NDIS, a fact acknowledged by the NDIA.

However:

  • In clinical practice, we’ve observed that families who can afford to pay for formal assessments confirming certain types of diagnoses seem to have a much easier time accessing support from the NDIS than others. More specifically, the system seems to favour:
    • families who live in big cities with access to health professionals;
    • educated parents/carers who understand ‘the system’, can advocate for a diagnosis when interacting with health professionals;
    • wealthy parents/carers who can afford to pay one or more private medical professionals to write formal reports and/or who have the resources to challenge NDIA decisions (e.g. before the Administrative Appeals Tribunal or Federal Court of Australia); and 
    • people who speak English as their first language. 

This has contributed to what some commentators call a ‘two-tier access system’. It’s fundamentally unfair. The NDIA and the responsible Minister are both aware of the problem and are trying to fix it. But it’s the reality right now. 

Good intentions, weird incentives, and unfair outcomes 

The NDIS guidelines and lists were no doubt intended to save families of children with significant, lifetime disabilities from having to jump through administrative hoops to qualify for clearly-warranted help. But, in practice, the lists have had unintended consequences. Inconsistently with the purpose of the NDIS Act:

  • many families, planners, providers, and stakeholders focus their time, money, and energy on medical assessments and diagnoses instead of on the functional needs and participation of children with developmental delays and disabilities;
  • the system creates a strong incentive for families to seek specific diagnoses of conditions that result in easier or automatic access to the NDIS, even if this involves some ‘diagnosis shopping’; and
  • some children who meet the legal requirements to become NDIS participants miss out on support because of bad advice and mistaken beliefs that they don’t have the ‘right’ diagnosis or label and are therefore ineligible.

Anecdotally, we’ve heard reports of some parents consulting up to five paediatricians to obtain a diagnosis of Level 2 or Level 3 autism for their child. This type of behaviour:

  • is not an option available to most families for financial reasons;
  • is a terrible waste of limited healthcare system resources in a system beset with long waitlists for paediatricians and other health professionals; and 
  • only makes sense in the context of the preferential access to NDIS funding that comes with the diagnosis.

2. NDIS access for children aged 7 years or older, teenagers, young adults, and adults

A. ‘Does my diagnosis qualify for NDIS access?’ is the wrong question

The idea that diagnosis should determine access to the NDIS is misguided. It’s legally incorrect. But it continues to dominate mainstream and social media commentary on the NDIS.

NDIS Guidelines have contributed to the confusion. The NDIA’s list of conditions that it deems likely to meet the disability requirements for access to the NDIS includes moderate, severe and profound intellectual disability, and Level 2 and Level 3 autism. Of course, most people with these conditions and/or the other conditions on the list should be entitled to NDIS support. But it’s understandable that people with other diagnoses and conditions would like to be added to ‘the list’.

Recently, we’ve seen a public debate about whether adults with ADHD should be able to access the NDIS. We’ve also seen well-intentioned disability and other advocates fighting for people with ‘their diagnosis’ to be ‘granted access’ to the NDIS, including advocates for adults with language disorders. Again, this is understandable in the current system – especially given that intellectual disability, autism, ADHD and language disorders are all subtypes of neurodevelopmental disorders (NDDs) that are known to have negative effects on people’s participation and functioning. It seems arbitrary to include some NDDs and not others – particularly in cases where they lead to similar functional impairments. 

The diagnosis debate is understandable, but harmful to the NDIS and people with disabilities. All the ‘noise’ about diagnosis-based access feeds into the unhelpful narrative about NDIS cost ‘blowouts’ and ‘unsustainability’. It obscures the great news about how transformative the NDIS is for many participants. It confuses potential participants, providers and taxpayers about who is entitled to access the NDIS, and why.

To counter some of this noise and confusion, let’s take look at the legal tests for access: 

B. NDIS access basics – the three requirements

To become an NDIS participant as a person aged 7 years or older, you need to meet the “access criteria” set out in the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).

Section 21 of the NDIS Act sets out the main rules. There are three kinds of requirements for access to the NDIS:

  • Age requirements. You need to be under 65 years of age when you make an access request to become a participant (see section 22); and
  • Residence requirements. You need to:
    • reside in Australia; AND 
    • be an Australian citizen, a holder of a permanent visa, OR a protected special category visa holder (section 23); and 
  • Disability requirements. These are set out in section 24, which is sometimes referred to as the “threshold provision”.

C. Disability requirements: commonly disputed issues

Often, the main issue for potential participants is whether they meet the disability requirements. 

The disability requirements are complicated, cumulative, and include a number of separate requirements that must be met before a person can become an NDIS participant (participant). You can read them in full here.

Common issues in disputes between the NDIA and applicants include whether the person:

  • has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments;
  • has impairments that are likely to be “permanent”;
  • has impairments that result in “substantially reduced functional capacity” to undertake one or more of the six activities set out in section 24(1)(c) of the Act, namely:
    • communication;
    • social interaction;
    • learning;
    • mobility;
    • self-care; and/or
    • self-management; 
  • has impairments that affect the person’s capacity for social or economic participation; and
  • is likely to require support from the NDIS for the person’s lifetime.

D. What do the Courts say about access to the NDIS? 

In the Davis case, Justice Debra Mortimer considered the disability requirements in detail*. She made several important observations and comments about the disability requirements and NDIS access, generally. These comments are helpful for understanding who should get access to the NDIS, and why. 

Our key takeaways, paraphrased from Davis, are as follows:

  • The NDIS is focused on assisting people with disability to live with dignity, with as much autonomy as possible, and with the ability to enjoy access to community and social engagement commensurate with people who do not live with disabilities. 
  • The NDIS is not means tested. Access doesn’t depend on how much money you or your family have (or don’t have).
  • Not everyone with a disability gets access to the NDIS.
    • The scheme is directed at providing lifelong support to people with enduring needs.
    • Access to the NDIS is reserved for a subcategory of people with disabilities and is determined by the access criteria. 
    • There are many people with disabilities who will not qualify as participants of the NDIS. This was a conscious policy decision, not an accident.
  • The intention of the NDIS is that, once a person meets the access requirements, the person will (generally) remain supported through their lifetime.
  • The link between “disability” and “impairment” is not explained in the NDIS Act. The disability requirements revolve around the severity and permanency of the effects of impairments experienced by a person to justify the funding of “reasonable and necessary supports” (as later assessed under the NDIS Act).
  • The concept of “impairment” enables the assessment of:
    • the severity and permanency of the person’s condition, and
    • the effects of that condition through:
      • evidence of the person; and
      • medical and clinical evidence.
  • The assessment of the severity and permanency of the person’s condition and its effects should focus on the effects of impairments on a person’s functioning. The assessment must be functional, practical and detailed. The assessment must be focused on what a person can and cannot do.
  • In clinical practice and litigation, people sometimes use the terms “impairment”, “disability”, “condition” and “diagnosis” interchangeably. But, for the purposes of the disability requirements, these terms are not synonyms. For example:
    • the focus of the disability requirements is whether a person has one or more impairments, and whether those impairments are permanent (i.e. enduring); and
    • whether a person’s disability is attributable to those impairments.
  • The NDIS Act does not focus on the name of a person’s disability, nor the diagnosis given to a person. Instead, the Act focuses on identifying the impairments experienced by a person that may require supports so that the person can participate in all aspects of personal and community life. 

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.l(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. 

5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve. 

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated). 

5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition. 

  • The term “permanent”, for the purposes of the disability requirements, means the impairment or impairments are “enduring” or of an “enduring nature”. It does not mean “irreversible”. It does not mean “cannot be improved”, e.g. with therapy or medicine. The effects of a permanent impairment may fluctuate. 
  • In other words, the question for the NDIA is whether the impairment(s) experienced by the person has or have an enduring quality so as to require supports funded under the NDIS on an ongoing basis.
  • The rules about whether an impairment results in substantially reduced functional capacity of the person to undertake one or more of the relevant activities (communication, social interaction, learning, mobility, self-care and/or self-management) are set out in Rule 5.8: 

5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities-communication, social interaction, learning, mobility, self-care, self-management… if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment ( other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

Bottom line

Not everyone is entitled to access the NDIS. This is a feature of the scheme, not a bug. 

Access rules are essential for the NDIS to work fairly and as intended. But the rules and processes must be transparent, fair, and applied consistently.  

The current system includes incentives that are not aligned with the NDIS Act and its policy objectives, and lead to unfair outcomes. Access to the NDIS should not depend on where you live, your family’s cultural and language background or socioeconomic status, your ability to advocate for your rights, or your capacity to understand the rules and to navigate ‘the system’. 

Similarly, access should not depend on your diagnosis or label. Instead, access should be assessed by reference to whether you have a disability attributable to enduring impairments that substantially reduce your functional capacity, and capacity for social and economic participation. 

Fair access to the NDIS for people with disabilities is far too important an issue for us to get side-tracked on debates about medical diagnoses and labels. As Justice Mortimer noted in Davis, questions about access – and about the operation of the NDIS Act generally – should be approached with a reasonable degree of common sense, given the purpose of the NDIS, and the fact that its operations affect people, families and carers already facing great challenges in their daily lives. 

*Justice Mortimer was also the presiding judge in a very important earlier case called Mulligan v NDIA [2015] FCA 544 (Mulligan). Both Davis and Mulligan were appeals from the Administrative Appeals Tribunal (which hears disputes about NDIS access in the first instance).

Disclaimer: we have done our best to ensure that this article is correct as at the date of publication (30 November 2022). It may not reflect any changes to the NDIS Act, NDIS rules or guidelines after the date of publication. The article is intended to provide general information and is not legal advice. Formal legal or other advice should be sought for particular circumstances or for matters arising from this article.

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Providers can play an important role in helping families of young children understand and access NDIS-funded supports. Here’s how.

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The NDIS is meant to be easy to understand. In practice, many families find it confusing. 

Most – but not all – families know that the NDIS provides help to some young children with developmental delays and disabilities. But many families don’t know:

Most – but not all – families know that the NDIS provides help to some young children with developmental delays and disabilities. But many families don’t know:

  • whether their child might qualify for help; 
  • what kinds of help are available; or
  • where to start the process.

From the front lines, the system doesn’t always seem to provide children with fair access to help 

We’ve worked with many young children with developmental delays and disabilities over the years. Families who understand the NDIS rules seem to have a marked advantage over families who don’t. Some parents seem to get help for their children much more easily than others.  

For a long time, the system has appeared to advantage:

  • highly-educated parents;
  • parents with good communication skills – especially parents with good advocacy skills;
  • parents who can afford to pay private health professionals to write reports with formal diagnoses;
  • parents who speak English as their first language; and
  • parents in big cities with lots of options.

On the flip side, the system has at times seemed to disadvantage:

  • parents with limited formal education;
  • parents with communication disabilities and other challenges that make it hard for them to advocate for their children’s needs;
  • parents who cannot afford to pay for private health providers’ reports;
  • parents who do not speak English as a first language; and
  • parents in rural and remote locations.

This isn’t fair. 

The National Disability Insurance Agency (NDIA) knows about the problem: it has been working for a long time to make things fairer and more consistent. But providers can also play a part in helping to make things fairer and easier for families who would otherwise have difficulties accessing help.

What can providers do to help parents?

We can:

  • listen to parents’ concerns about their child’s development and take them seriously; 
  • summarise access rules for early intervention and tell parents whether support might be available; 
  • outline the kinds of help that the NDIS funds for young children; and
  • give practical advice to parents about how and when to get started in their efforts to get help. 

What, exactly, can providers say to parents?

This is what we tell families who are concerned about their young children’s development and may benefit from NDIS-funded help:

(A) You are the expert on your child 

If you are worried about your child’s development, trust your instincts. Don’t ‘wait and see’ what happens. Often the best help for a young child with developmental issues is early help from a team. Seek help early – even if you are not yet sure whether your child ‘will grow out of it’.

(B) Speak first with your health and early education professionals

  1. Often, the best place to start is speak with your child’s general practitioner about your concerns. 
  2. If you are already seeing another health professional, like a paediatrician, community nurse, speech pathologist, audiologist, occupational therapist, or psychologist, speak to them, too. 
  3. If your child is in childcare or preschool, speak with your child’s early educators, too.

(C) Don’t wait for an appointment, diagnosis, label, or report

  1. You don’t need a diagnosis to get help from the NDIS. 
  2. Waiting lists to see some health professionals are very long – even in the private sector.
  3. Waiting lists for experienced health professionals have always been a problem. But COVID-19 lockdowns and their effects, as well as sector-wide talent shortages, have made the problem worse.
  4. If you are in the process of waiting to see a health professional to obtain a diagnosis and/or recommendations to support your child, go through with the process at the same time as seeking help from the NDIS. Reports from health and other professionals can be very helpful later in the process, e.g. when considering whether a child is eligible for an NDIS Plan with funding.  
  5. Keep any health and education observations, reports and recommendations about your child in a consolidated file so you can find all the information you might need when you need it.

(D) To get informed, learn the basics about the NDIS approach to early intervention

The NDIA is working hard to improve early intervention. It now follows a national “early childhood approach”. Some of the terms used to describe the approach are a bit confusing – in part because of how the current laws are written. But the NDIS has made some helpful guidelines that try to explain their approach in plain English (see additional resources below). 

(E) Get in touch with one or more local “early childhood partners” 

  1. The NDIA doesn’t deliver the early childhood approach itself.
  2. Instead, the NDIA signs contracts with companies called “early childhood partners”. 
  3. Early childhood partners are funded by the NDIS. 
  4. According to the NDIS, early childhood partners offer “teams of professionals with experience and clinical expertise in working with young children with developmental delay or disability and their families”. 
  5. You can find your local early childhood partners here. You should see a search box that looks like this:
  1. Put your postcode or suburb name into this search box. For example, here are the first page of results we received when we searched for “North Strathfield” (where we are based):
  1. Look for search results that are marked “early childhood partner”. For example, on the first page of results above, Lifestart and the Cerebral Palsy Alliance are both identified as early childhood partners within 50kms of North Strathfield. We’re lucky: there are other options near us, too. 
  2. The search results list contact details for each early childhood partner. You can call or email them for an appointment to talk about your concerns and your child’s needs.

If you are lucky enough to live in an area with multiple early childhood partners, you may decide to talk to staff at a few before deciding which one to go with. Your healthcare providers may be able to assist you to find a partner that suits your needs.

In some places, your choice will be more limited. You may only have one option. In some rural and remote areas, you may have no early childhood partners at all. In this situation, you need to contact the NDIA directly to connect you with an ‘alternative option’.  

(F) Talk to the early childhood partner about your concerns and NDIS-funded support options that may be available for your child.

  1. Broadly, your early childhood partner will consider three main types of support for your child as part of the NDIS early childhood approach. 
  2. In the table below, we have made a (highly simplified) summary of the three main types of support that make up the “early childhood approach”. 
  1. Different kinds of supports may be offered at different times during your child’s development, depending on your child’s needs at the time and the rules for eligibility.  

(G) Don’t give up. If you need additional help to advocate for your child, ask for it.

Early childhood partners are funded to help you. You can also ask your healthcare and education professionals and providers for support. 

We can all work with families to help make the NDIS more accessible to young children who need it

For children with developmental concerns, delays, and disabilities, timely access to NDIS support can make a big difference to functional outcomes, and to the family’s quality of life. But not all families know about the NDIS and/or how to navigate the NDIS to access early intervention support.

Providers – including health and early education professionals – can help families to understand the system, and how to get started.

More resources:

NDIS participants deserve quality supports and services from small and medium-sized providers – including unregistered providers

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Many small and medium providers of supports and services to NDIS participants are not highly profitable, with relatively high fixed costs, significant staffing shortages, limited operational resources, and sometimes long waitlists.

For cost, time, red tape, service delivery, and other reasons, many providers do not register with the NDIS Quality and Safeguards Commission.

Unregistered providers cannot offer supports and services to NDIS participants who have plans where the funds are managed by the NDIS.

Unregistered providers can offer and provide supports and services to NDIS participants who have plans that are:

  • self-managed: where the participant (or nominee) decides upon and engages supports and services themselves; or
  • plan managed: where the participant (or nominee) engages a registered plan manager to help them to plan, and manage funding for, services and supports for the participant.

Some exceptions exist, e.g., for specialist behaviour supports, and in situations involving potential regulated restrictive practices.

“Unregistered” does not mean “unregulated”. For example, when working with NDIS participants, unregistered providers of services must:

  • comply with the NDIS Code of Conduct; and
  • have systems to manage complaints from NDIS participants and others about the quality and safety of their services.

To protect participants, unregistered providers can benchmark their training and systems against registered provider requirements, e.g. by implementing codes of conduct, risk, incident, and emergency and disaster management  systems, conducting worker screening checks on staff, and by developing policies and procedures for issues like booking and cancellations, child safety, and waste management.  

Key source: NDIS Quality and Safeguards Commission, Unregistered Provider Obligations (Last update: 7 July 2022)

Click on the images below to review some of our popular NDIS templates:

NDIS Complaints Management
NDIS Risk Management System
NDIS Waste Management Policy and Procedures

NDIS basics for new small and medium-sized providers: what’s it all about?

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For many small and medium-sized providers of supports and services to National Disability Insurance Scheme (NDIS) participants, the NDIS can be confusing – especially for new providers.

To understand the NDIS, you need to know a bit about the National Disability Insurance Scheme Act (2013) (the Act).

What is the NDIS trying to do?

Among other things, the objects of the Act are to:

  • give effect to some of Australia’s obligations under the Convention on the Rights of Persons with Disabilities;
  • provide ‘reasonable and necessary supports’, including early intervention supports, for participants;
  • enable participants to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
  • promote the provision of high quality and innovative supports to enable participants to maximise independent lifestyles and full inclusion in the community; and
  • protect participants from experiencing harm arising from poor quality and unsafe supports or services provided under the scheme.

How does it work?

The Act’s objects are achieved through:

Source: sections 3, 4, and 8 of the National Disability Insurance Scheme Act 2013 (Cth), as amended.

Click on the images below to review some of our popular NDIS templates:

NDIS Complaints Management
NDIS Incident Management
NDIS Emergency and Disaster Management Plan Framework

How to navigate conflict with other people

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Interpersonal conflicts are common. They can make us worry and react in regrettable ways that make us feel bad about ourselves. Sometimes, we withdraw from relationships, which is also not good for us.

Conflict with people can lead to lots of bad outcomes: reduced focus and creativity, worse decision making, and unhappy relationships.

None of us is perfect when it comes to relationships. When you are in conflict with someone else, there are several strategies you can use to find a healthy way forward:

  • Remember your perspective is just one amongst many. Sometimes, we forget that we all have different viewpoints and values and think that our view is correct and all other views are uninformed, irrational or biased. Thus is not always true – not everyone sees things that same way and that’s okay.
  • Be aware everyone is biased (including you!). We sometimes assume that other people’s behaviour is due to their personality, when it might just be due to their situation. Ask someone you trust to help you reflect on the ways you might be seeing the situation unfairly.
  • Avoid black and white thinking. Sometimes, when we disagree with others, we start to think that the other person is an opponent or even enemy! Rather than thinking it’s ‘you versus them’, focus on the decision or situation instead and try to make progress on it. Think of yourself and the other person as sitting on opposite sides of a seesaw and work together to find a balance.
  • Know your goals: Avoid drama and stay focused on your goals, e.g. you want a healthy relationship that will last into the future, and you want to feel less angry/frustrated after interactions. Make a list of your goals and circle the most important ones. You don’t need to be best friends with the other person – focus first on having a functional, respectful relationship.
  • Don’t gossip or look for drama: It’s perfectly fine to seek help with sorting out your feelings and to check in with others. But choose who you speak with carefully and look for people who are constructive and who will challenge your perspective – people who will help you solve the specific problem.
  • Experiment: There is no one way to solve interpersonal conflicts. Your strategy will depend on the situation and the people involved. Experiment and see what happens: e.g. decide that for two weeks you will listen to the other person, and not interrupt, and focus on what they are saying (rather than how they say it). Try to summarise what the other person is saying, and check you have understood them. Try to interrupt your conflict patterns of the past.
  • Stay curious: People are complex! Try to learn more about the other person. Do not approach conversations with aggression or defensiveness, but with creativity and with genuine questions about them. Think about a future when you have overcome the conflict.
  • Don’t give up: With good faith efforts and hard work, you can resolve most interpersonal conflicts.

Key source: Gallo, A. (2022) How to Navigate Conflict with a Coworker, Harvard Business Review, September/October.

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