The Provider Loft

Supporting small and medium NDIS and health providers in Australia

NDIS 2024-2025 Reforms

Key personnel of allied health NDIS providers: your legal risks will almost certainly increase in 2025 

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Big Picture: 

Consultation is underway on proposed reforms to strengthen the regulatory powers of the NDIS Commission. 

If enacted, the proposed changes will increase legal risks for providers and for their key personnel, including directors and executives of allied health providers.

What to watch:

Proposed additional:

  • statutory duties for providers and for key personnel of providers;
  • penalties for non-compliance;
  • restrictions on advertising and marketing for NDIS supports;
  • obligations to provide documents and information to the NDIS Commission; and
  • requirements to hold information in Australia. 

New statutory duty owed by providers:

Provider obligation to ensure, as far as is reasonably practicable, that the conduct of the provider does not cause adverse effects to health and safety of participants while the provider is delivering those supports and services.

Breaches would attract a civil penalty.   

New statutory duty owed by key personnel (personally):

Key personnel to exercise due diligence to ensure the NDIS provider complies with its NDIS Act obligations. 

Likely to impose clear obligations on key personnel to train staff, manage risks, oversee and investigate incidents, and to address complaints.  

New proposed penalties for providers include:

  • criminal offences for serious failures to comply with conditions of registration; and
  • significantly increased maximum penalties for serious harm or death of a participant.

Anti-promotion orders

  • Restrictions on advertising and marketing that undermines the integrity and principles of the NDIS.
  • Broadly consistent with existing allied health professional and ACCC advertising rules.
  • Will capture shopping coupons and other exploitative and inaccurate advertising. 

Expanded information-gathering powers:

Proposed powers to: 

  • require providers to provide documents and information; and
  • require information be provided in less than the current 14-day timeline. 

Provider information must be held in Australia:

  • Information that is cloud-based and held overseas is sometimes hard to get. 
  • All providers will be required to hold information within Australia.

Have your say and plan for 2025: 

  • The consultation period ends on 20 December 2024. Give feedback as explained on the NDIS Commission reform hub.
  • Ahead of any changes, review your risk management systems, including your provider and key personnel insurance arrangements to ensure they remain adequate. 

Go deeper:

Consultation on proposed changes to the NDIS Act (Bill 2)

Reform Road Map (as at 20 November 2024)

High alert: Allied health providers and participants on edge as NDIS funding for some therapies slashed without notice

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What’s happened?

  • Yesterday, the National Disability Insurance Agency (NDIA) announced that the NDIS Pricing Arrangements and Price Limits will be amended radically with effect from 1 February 2025 to change the way music and art therapies are funded. 
  • Many affected providers appear to have been blindsided, with some expressing real fears about the future of their businesses and jobs. 
  • All allied health providers, and NDIS participants, should be worried about the precedent set by the NDIA’s decision-making process, including the way it announced significant changes.

Context: 

Zoom in:

  • Early intervention supports are defined to include: “therapy provided by allied health professionals including speech pathologists and occupational therapists”.
  • Therapeutic supports include “supports that provide evidence‑based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.” (Our emphasis.)

Driving the change:

According to the NDIA:

  • “While art and music therapy remain permissible, they do not meet the evidentiary standards required to be classified as a ‘therapy’ under the definition of NDIS supports.” (Our emphasis.)
  • From 1 February 2025, “[p]articipants will be able to access these supports…through their community participation budget:
    • At a 1 to 1 rate of $67.56 an hour when delivered by a registered provider.
    • At a group rate of $193.99 an hour when delivered to a minimum of 4 participants by a registered provider. This will support participants to have greater opportunities for inclusion and participation in the community.” (Our emphasis.)
  • “Participants and providers can continue with current arrangements until 1 February when the changes to the price guide come into effect.”
  • “We understand that the evidence base in relation to art and music therapy is continuing to be developed, as it relates to disability-related support. In recognition of this the NDIA is referring art and music therapy to be assessed by the NDIS Evidence Advisory Committee.” (Our emphasis.)

What we’re watching:

With its announcement, the NDIA:

  • has asserted that it can determine a recognised therapy is not supported by enough evidence to be classified as a therapeutic NDIS support;
  • will reduce the real-world choice and control of NDIS participants because:
    • it must know that evidence-based music and art therapies cannot be delivered viably by qualified professionals for $67.56 an hour; and
    • even at the lowered rates, appears to require that the services can be provided only by registered providers; and
  • appears to assume group therapy provides NDIS participants with greater opportunities for inclusion and participation in the community (many NDIS participants and advocates dispute this); and
  • has set a precedent for referring recognised therapies to an advisory committee – that doesn’t yet exist – to determine the legitimacy of their services for funding as therapies.

Bottom line: 

  • Allied health providers and NDIS participants can no longer assume they will be consulted properly about major changes to NDIS funding or service-delivery models. 
  • We should all keep a very close eye on:
    • what is happening with the NDIS Evidence Advisory Committee including who will be be on it (expressions of interest close on 17 December 2024) and when it will be set up (potentially not until July 2025); and
    • the NDIA’s evolving views on what constitutes evidence-based therapy for the purposes of determining whether a service is an NDIS support.  

Go deeper:

NDIA: Statement – NDIS funded music and art therapy

Petition · Save Music Therapy: Keep It Funded Under NDIS – Australia · Change.org

Allied health providers must review services for young participants to ensure they’re NDIS supports

NDIS Evidence Advisory Committee | Department of Social Services

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024

Paediatric allied health clinic owners: things are not looking great when it comes to Targeted Foundational Supports

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Another week, another consultation paper. And, as an independent speech pathology clinic owner who sees many children with developmental delays and/or disability, this one did not speak to my inner optimist.

1. But, first, a bit of context

Back in late September 2024, we wrote about the first Foundational Supports Consultation, looking at a consultation paper and webinar about General Supports. 

A second paper – Foundational Supports for children with developmental concern, delay and/or disability and their families, carers and kin Consultation Paper – has been released. It’s dated October 2024. But I only found out about it last week; and only then by accident while looking for something else.  

It’s more ambitious than the General Supports paper, and includes a discussion of “Targeted Foundational Supports” for children with developmental delay and their families who need more assistance than General Supports and mainstream services.

2. For strategy and business planning, paediatric allied healthcare providers need to understand what’s proposed

Targeted Foundational Supports are intended to include some allied health services, and so are of interest to paediatric allied health providers (like me), as we look to evaluate our service-delivery models to adapt to new systems of supports made up of three connected tiers:

  • mainstream early childhood education and school supports;
  • Foundational Supports, including Targeted Foundational Supports; and
  • a (yet-to-be developed) new early intervention pathway in the NDIS for children with the highest level of needs.

The idea seems to be that some families will access a combination of these supports, and perhaps different combinations of these supports at different stages as children’s needs change. 

The key challenges for allied health providers are how to work within and across such complex systems to deliver quality, evidence-based services to children while keeping staff satisfied with their work – and staying solvent!

3. Reality check: On the ground, funded supports for children with developmental delay and/or disability through the NDIS are shrinking

On a first read, page 9 of the paper caught my eye:

“The recent ‘Getting the NDIS Back on Track” changes to the NDIS Act do not change a child’s participant status or remove their access…Nothing is changing now.”

These statements are hard to reconcile with recent news stories, like this, with journalist Rick Morton reporting that:

  • the NDIA is sending out more than 1,000 eligibility reassessment letters each week;
  • in the last six weeks, almost 7,500 eligibility reassessments have been performed – 78% of which are on children aged up to 8 in the early intervention scheme – with 48% of the total being removed from the NDIS, and 20% being asked to provide more information (so-called “general evidence”) within 28 days if they “think they still meet the NDIS eligibility requirements and wish to continue with the NDIS”; and
  • the NDIA is completing around 1,250 eligibility reassessments per week, aided by 95 new dedicated staff.

“Nothing is changing now”? Many families and health care providers would disagree.

4. Two predictions, and a comment

A. Allied Health Targeted Foundational Supports will not be provided in clinics

According to the authors of the consultation paper:

  • the 2023 Independent Review of the NDIS found that, under the current system:
    • “supports for children with emerging developmental concerns and disability are too focused on a clinic-centred model of support and not enough on functional and support needs”; and
    • there was “not enough focus on supporting children in everyday settings where they live, play and learn” (see page 13);
  • decisions on how to deliver Targeted Foundation Supports are yet to be made by governments. But the options to be considered:
    • will look to use existing services and infrastructure to deliver supports to where children live, learn and play;
    • may be provided in group settings (helped by an allied health worker or a multidisciplinary team) or individually in a child’s natural environment;
    • mark a change of approach that “shifts away from a mostly one-to-one therapy model in clinical settings, which is not seen as best practice early intervention for most children”; and 
  • a child may have access to allied health:
    • through a referral to a group with other children getting similar supports “helped by an allied health worker or a multidisciplinary team”; or
    • individually in the child’s natural environment (page 18).

B. Allied Health Targeted Foundational Supports:

a. will be more limited than under the ‘former’ NDIS; and 

b. may not always be delivered directly by allied health professionals 

The paper’s authors state that some children could be eligible to get one or more of:

    • low intensity or periodic child and and family-centred allied health supports, including from speech pathologists, physiotherapists, psychologists, occupational therapists or other allied health specialists;
    • more intensive, one-to-one capacity-building from a (not specified) “suitably qualified and experienced worker” who could provide coordination and help families get appropriate supports. This support may be delivered jointly with allied health supports (page 17);
    • a one-off, low-cost assistive technology consultation to increase independence at childcare, school or home (page 18); and/or
    • extra supports if the child is “identified” as having concerns across a number of developmental areas, delivered by a “qualified and experienced person with child development expertise”. It’s not clear who will identify the concerns, or what qualifications, experience or child development expertise will be required (page 18). 

    C. A closing comment

    The consultation period appears to end at midnight on 5 December.

    Based on what happened with the NDIS supports consultation, a cynic might suggest that the Federal Government has already decided what it wants from Foundational Supports and will now work with the states to make it happen, regardless of what families or allied health providers think or say.  

    I don’t know. But it’s hard to justify spending significant time or resources responding to consultation papers when we have so many clients needing help, when so many changes are happening at once, as we approach calendar year-end and have already weathered so much change in such a short period.

    But we can’t ignore the changes, either. 

    Paediatric allied health clinic owners must start to think about whether they want to deliver Targeted Foundational Supports, recognising that:

    • adding Foundational Supports to service-mixes may:
      • increase business risks and complexity;
      • take away resources from other services and projects; and
      • affect staff satisfaction with our workplaces;
    • one-to-one or in-clinic models are unlikely to work;
    • therapy dose constraints may reduce outcomes;
    • service-delivery constraints may reduce control over service quality; and
    • cost-effective access to mainstream and other ‘natural’ settings may be difficult in some states and regions for logistical, compliance, or financial reasons.

    We must also remember that proposed changes will be hard to navigate and deliver for other stakeholders, too, including educators in childcare settings and schools, and governments. 

    As the authors of the paper note, effective, early child- and family-centred care, through the delivery of strength- and evidence-based services, can lead to significant improvements for children across developmental domains. We all want systems that deliver good outcomes for children and families.

    One other thing we must not forget: the stakes of getting this right are life-changingly high for children with developmental delays and/or disability and their families – particularly for children who are (or become) ineligible for the NDIS, but who need more help than is and will be available through mainstream services. 

    Read more: 

    Allied health providers: get up to speed on the key NDIS reforms that will affect your practice (a free resource)

    Allied health providers must review services for young participants to ensure they’re NDIS supports

    Will NDIS reforms and foundational supports trigger the end for many paediatric allied health clinics?

    Allied health NDIS providers: back yourself to try new things, and help more people: a case study

    Allied health providers must review services for young participants to ensure they’re NDIS supports

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    The big picture:

    Under new rules, allied health providers cannot be paid by the NDIA for services that are not ‘NDIS supports’. 

    Context:

    ‘NDIS supports’, as defined in the new section 10 of the NDIS Act 2013 and Schedule 1 of the NDIS (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024, include:

    • early intervention supports for early childhood (0-9 years) (Item 17); and
    • therapeutic supports (Item 34).

    What to watch:

    Allied health services must (of course) be evidence-based. In addition:

    • early intervention supports must help the child and their family achieve better long-term outcomes for the child (item 17); and
    • therapeutic supports must help participants improve or maintain their functional capacity (item 34).

    What we’re doing:

    We’re working with clients and families to review assessment, reporting, goal-setting, and therapy workflows to ensure our services are NDIS supports. To structure our review, we’re using the following frameworks:

    Go deeper:

    For more information about NDIS reforms, check out our free webinar.

    Allied health providers: get up to speed on the key NDIS reforms that will affect your practice (a free resource)

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    Allied health providers: get up to speed!

    NDIS reforms are accelerating (at least 10 announcements in the last month alone), and it’s hard to keep up while running a business. We’ve made a free video to help.

    State of play: 

    • Risks and opportunities
    • Key events and reforms
    • Potential implications

    Sign up here:

    More from us: 

    The 1st Foundational Supports Consultation has kicked-off. 8 things allied health NDIS providers need to know

    Allied health NDIS providers: back yourself to try new things, and help more people: a case study

    Paediatric allied health providers: let’s tackle our NDIS worries by improving our services, bit-by-bit, and monitoring general reform trends

    The Government’s Draft List of Allied Health NDIS Supports: What’s In; and What’s Out

    NDIS regulatory changes are coming. Allied health providers should stick together to advocate for choice and control

    How will allied health NDIS providers survive? Some difficult choices ahead

    Therapy Support Providers: Frozen pricing limits and shorter notice cancellation rules. What was the NDIA thinking?

    Check out our NDIS provider and health provider resources Go to Shop