NDIS

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

David Kinnane · 4 July 2024 · Leave a Comment

The 2024-25 NDIS pricing arrangements and price limits (the 2024-25 Pricing Arrangements) were released on 28 June 2024: the last business day of the 2023-24 financial year.

For therapy support providers – like occupational therapists, behavioural therapists, physiotherapists, and speech pathologists – two things stood out:

The 2024-25 price limit for most therapists is unchanged from the previous year. (For most therapy support providers, the pricing limit remains $193.99 an hour. This limit has stood, unchanged, for 5 years.)
The short notice cancellation policy has been reduced from seven days to two clear business days.

These changes took effect on 1 July 2024 – the first business day after the 2024-25 Pricing Arrangements were released.

Why did the NDIA recommend these decisions?

Also on 28 June 2024, the National Disability Insurance Agency (NDIA) released its 2023-24 Annual Pricing Review Report (the Report). Many of us were too focused on the 2024-25 Pricing Arrangements to notice.

The Report is not well-written or accessible. It looks like it was drafted by a committee.

We read it anyway. We wanted to understand what the NDIA thinks about therapy support providers. We wanted to understand the context and data used by the NDIA to look at pricing limits and cancellation policies. And we wanted to understand the NDIA’s rationale for making its recommendations.

The Report refers, briefly, to the 2023 NDIS Review, The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, and some of the budget papers. It doesn’t refer in any meaningful way to Government reform proposals, including the amendments proposed in the NDIS Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (the NDIS Bill 2024). But it would be naive to think they did not influence the Report recommendations and the 2024-25 Pricing Arrangements.

Here are our key takeaways (in bold), with relevant excerpts from the Report (in italics). (As always, any errors of interpretation are our own):

1. Most NDIS participants bought therapy services

“In the six months to 31 December 2023, 379,296 participants, representing 59% of the total 646,449 active participants, as of 31 December 2023, purchased therapy supports through their plans.”

2. NDIS participants bought a range of different therapies, including Occupational Therapy, Early Childhood, Behavioural Therapy, Speech Pathology, and Psychology services

“In the six months to 31 December 2023, participants claimed therapy supports, predominantly from Occupational Therapists ($441.6 million from 214,271 participants), followed by Early Childhood Professionals ($357.9 million from 93,154 participants), Behavioural Therapists ($287.7 million from 53,064 participants), Physiotherapists ($202.2 million from 95,095 participants) and Speech Pathologists ($198.2 million from 109,829 participants).”

…

3. The ‘NDIS therapy market’ expanded

“The NDIS therapy market continues to expand significantly….Notably, payments made to unregistered providers increased by 60%, although registered providers still received the majority of payments – 65% or $1.3 billion of total payments. This demonstrates growth in both the provider base and financial volume within the therapy sector.”

4. The number of Registered Therapy Providers plummeted

“Registered provider numbers decreased by 16% from 8,778 to 7,392 providers in the six months to 31 Dec 2023….The decline in registered providers…is attributed to 1,562 providers switching to unregistered status and 1,470 registered providers no longer receiving therapy related payments in the six months to 31 December 2023.” (My emphasis.)

5. The number of Unregistered Therapy Providers surged

“Conversely, unregistered providers have risen in all areas, growing from 27,528 to 45,543 in non-remote areas within the same periods….”

6. The NDIA knows that therapy providers were experiencing high demand and rising costs

“Data on economic conditions suggest strong demand for health and disability services, a tight labour market for health and disability related workers, as well as higher costs given high general inflation and wage inflation.”

…

“High inflationary environment (sic) can increase cost pressures on providers delivering supports to NDIS participants such that these providers may then be under pressure to raise prices for their services….Inflation in the health industry …has run above the economy wide (all-industries) rate for most of the past decade, suggesting relatively strong cost pressures in the HCSA [Healthcare and Social Assistance] sector.”

7. The NDIA consulted with providers, peak bodies, and professional bodies. The NDIA knows about providers’ challenges and worries, including with financial sustainability, staff recruitment, retention and turnover, administrative and compliance overheads, increased costs of delivering therapy, general business expenses, and costs of delivering supports to children

“Almost all providers reported increases in costs. Providers highlighted general increases in wage costs in a highly competitive labour market, as well increases in insurances, rent, travel costs, utilities, and other operating expenses. Several providers attributed these increasing costs to reduced profit margins, and expressed concern about their ongoing financial viability as NDIS providers. Many providers noted that the NDIS price limits have not increased for a number of years.

…

Provider peak bodies raised similar themes about challenging economic conditions where costs have increased, and profitability is reduced. Respondents noted that these challenges are likely to impact the quality of services offered by providers, with less investment in staff training and other quality-enhancing initiatives. It was also noted that many businesses are operating at a loss, which may lead to market exits.

…

Professional bodies also reported rising costs and financial pressures. It was noted that some providers who previously charged below the NDIS price limits, are now increasing their prices up to the price limits. Professional bodies reported instances where providers are considering moving to self-managed participants so they can charge above the price limits to cover their costs. A professional body reported that many providers are conscious of the impact of a challenging economic environment on participants and have sought to minimise any price increases by bearing the cost themselves.

…

Financial sustainability was identified as the primary business risk by 64% of provider responses. This was raised when responding to questions about changing economic conditions.

Providers also raised challenges with staff recruitment and retention as a key business risk. Providers reported a shortage of practitioners, increasing wage costs and challenges with retaining staff due to competition from other sectors, as well as staff leaving to become unregistered sole-trader providers…

Providers also raised a wide range of other themes, including risks arising from the amount of time spent on NDIS administrative tasks, registration costs and uncertainty about ongoing reforms to the NDIS.

…

Peak bodies raised concerns about the costs of NDIS registration and noted that some members report considering de-registering.

Similarly, professional bodies also stated the administrative burden of NDIS registration as a business risk, as well as financial sustainability and uncertainty about broader changes within the NDIS. Professional burnout and delays in receiving payment for services relating to assistive technology were also raised as business risks.

High staff turnover was reported in many submissions, as well as broader challenges with recruitment and retention. Several providers reported an operating environment where staff leave to become independent/sole-trader providers or take up work in other sectors where they may receive higher wages. A number of providers reported increasing costs associated with salaries and wages to retain staff, or additional costs associated with recruitment (e.g. advertising and recruitment agency costs).

…

About 87% of provider submissions reported increases in the costs of delivering therapy supports and services. Providers noted increases in wage costs (including increasing staff wages, keeping up with Allied Health awards and professional development costs) and costs associated with recruitment and retention. Providers also reported increases in business expenses such as rent, utilities, office supplies, insurance, workers compensation premiums and travel expenses.

Allied Health Professions Australia described rising business costs (e.g. wage market rates, rent and utilities, supplies, fuel, consumables and equipment, travel, insurance and other operational expenses).

…

Providers outlined a range of unique costs of providing early childhood supports, with 85 (or 33%) of provider submissions responding to this question. Most providers describe this group of NDIS participants as more complex, compared to other early childhood clients who are not eligible for supports under the NDIS.

When describing early childhood supports for NDIS participants as more intensive and requiring more time, the following additional activities and costs were noted:

• collaboration and liaison as part of team-based approaches, with an appointed ‘Key Worker’

• delivering supports in natural environments, such as at home or in school settings, which requires travel that can exceeds established caps

• specialist skills and professional development needs, often resulting in a need to pay higher salaries

• mandatory reporting obligations, such as writing reports related to funding allocation decisions, risk assessments, reporting to the NDIS Safeguards Commission and making Child Safe notifications.

Professional bodies noted similar costs of providing early childhood supports for NDIS participants. For example, the Australian Physiotherapy Association described liaison and communication with the care network, support to the family, the expertise and complexity required, extended appointments, the service environment and administrative load.“

8. The NDIA appears to believe that, as health care businesses, Therapy Support Providers are resistant to slowdowns in the economy

“The HCSA sector is resilient to slowdowns in Australian economic activity due to the ‘non-discretionary’ nature of the services provided (generally necessities) and continued demand from population growth and an ageing population. The HCSA is also heavily reliant on funding from the public sector.”

9. The NDIA accepts that its private billing data – gathered by scraping provider websites for public pricing information – was limited and unrepresentative. (Many providers don’t post pricing information publicly for business and legal reasons, e.g. to avoid illegal price signalling.)

“The analysis of private billing rates for NDIS-related weekday in-room therapy services in the 2023-24 period offers detailed insights into the therapy market. The dataset, consisting of 1,791 observations, was compiled by the NDIA from provider websites across Australia. This sample size is derived from previous annual pricing reviews, ensuring continuity and comparability over time.

…

The distribution of sample observations geographically leaned more towards VIC, 34% of the sample, and QLD, with 27%, indicating an underrepresentation of therapists from NSW, which accounted for only 20%, compared to its share of the NDIS market (31% of total NDIS therapy claims in the six months to December 2023). The NT was the only state or territory with fewer than 30 observations. (My emphasis.)

The NDIA acknowledges that there are many uncaptured variables that would assist a greater explanation of private billing rates. This, however, is difficult to obtain through website scrapping (sic) alone.” (My emphasis.)

10. Notwithstanding the limits of its analysis, the NDIA concluded the price limits ($193.99 per hour in most regions) reflect market norms and there are no systemic pricing concerns that hinder participant access (compared to other clients)

“Overall, the private billing rates analysis provides a crucial benchmarking tool for the NDIA, helping to align NDIS pricing structures with the market and ensuring the sustainability of therapy services under the scheme. This analysis indicates that NDIS price limits generally match or exceed the rates for most therapies nationwide. However, regression analysis highlights statistically significant variances among therapies, which could correspond to differences among therapy professionals such as in qualifications, skills, and experience.“

11. The NDIA think that psychologists are an exception to the general rule to freeze prices because their market rates (based on private billing rates) exceeded then-current pricing limits

“After reviewing the current price limits for Psychologists against private billing rates and other comparable government schemes, it is apparent that the current limits generally sit below the prevailing market rates.”

“Analysis reveals that the mean billing rate for psychologists exceeds the NDIS price limits in both state groupings, with a mean rate of $228.6 and $260.3 for Psychologists and Clinical Psychologists, respectively. Similarly, median billing rates for these professionals surpass NDIS limits, standing at $228.0 and $255.0. Moreover, the 75th percentile billing rates indicate that a significant portion of appointments exceed (sic) NDIS price limits, highlighting a clear difference between market rates and NDIS price limits. This suggests that it is appropriate for the NDIS to increase price limits to better align with prevailing market rates and ensure fair compensation for psychology services.”

12. The NDIA recognises that its pricing model may underestimate real world business costs and that a new price-setting approach may be needed

“Stakeholder feedback has suggested a potential underestimation of corporate and operational overheads, such as insurance and compliance costs given the model is currently based on previous benchmarking survey results. The feedback received through the APR consultation and ministerial correspondence, has raised concerns that the current price limits may not fully accommodate the delivery of more specialised and complex supports for some NDIS participants, which may restrict providers’ ability to recover adequate costs.”

“The NDIA should work with the sector, providers, and other stakeholders to consider options for setting prices for Disability Supports, including but not limited to exploration of a new pricing approach.“

13. NDIS cancellation costs surged, including for early childhood supports

“In the three years from 2020-21 to 2022-23, the costs linked to short notice cancellations nearly doubled, increasing from about $60 million to just under $120 million. This rise highlights the need for effective management of such cancellations. Additionally, therapeutic, and early childhood supports, which account for 37% of all claims, are identified as the categories most affected by cancellations.”

14. The NDIA thinks that providers have the right to recoup costs for cancellations but wants them to work harder to reduce the number cancellations. The NDIA thinks 2 clear business days’ notice is sufficient for therapy supports

“The NDIA recognises that there is a need to strike a balance in its short-notice cancellation policy to allow providers sufficient ability to recover costs while incentivising them to work with participants to reduce the number of short-notice cancellations. Participants, in turn, must be given reasonable period to provide notice, considering unforeseen circumstances like illness, urgent appointments, or changes in personal circumstances, to minimise using NDIS funds on services they do not receive.

…

Through consultation and research conducted, there is a case that the maximum of 7-day policy may not be necessary for non-DSW supports. There appears to be a greater usage of a 2-day cancellation policy in the sector, particularly among therapy providers, which supports a potential for a shorter cancellation policy. 76% of provider respondents delivering therapy supports to NDIS participants suggest they already have a short-notice cancellation policy of 48 hours or less. This is also supported by the website data analysis conducted by the NDIA, acknowledging the limited sample that had available data for analysis. The NDIA believes there to be mechanisms and methods already being utilised by the sector to assist participants limiting cancellations, which could make the reduction in notice period feasible.”

Our view: One reasonable conclusion

We have no qualms about the cancellation notice changes. Many therapists already have more generous cancellation arrangements than were allowed under the old rules.

The decision to freeze pricing limits for most therapy supports in a period of relatively high inflation and business uncertainty was not an accident. Neither was the late timing of the announcement.

The Government is attempting the very tough task of balancing the rights and interests of participants and taxpayers. Therapy providers are trapped in the middle, facing rising business and compliance costs, downward pricing pressures (in real terms), and forecasts of falling demand for some therapy services (as NDIS access and funding rules are expected to tighten as a consequence of the NDIS Bill 2024).

Therapy professionals, peak bodies, and professional associations have all expended a lot of effort to explain their challenges, to little avail. In coming months, many ethical therapy providers will need to make some tough decisions about their ongoing capacity to deliver high quality, evidence-based therapy supports to participants without going bust.

NDIS Providers: 5 basic things to know about the NDIS (Getting the NDIS Back on Track No. 1) Bill 2024

David Kinnane · 25 June 2024 · Leave a Comment

With today’s news, we don’t yet know the final form of the NDIS (Getting the NDIS Back on Track No.1) Bill 2024 or when it will be passed into law.

But, despite the uncertainty and lack of detail on many key points, NDIS providers (including unregistered providers) need to understand some basic concepts to prepare for the big changes ahead:

Providers should expect increased regulation, oversight, and enforcement action. The NDIS Quality and Safeguards Commission and the NDIS Commissioner will have expanded powers.
NDIS access rules will be clarified so that participants know whether they meet the disability requirements, the early intervention requirements, or both.
NDIS pathways will change. The NDIS will work differently for participants accessing early intervention supports compared with participants receiving disability supports for lifelong disabilities. (Future reforms will create a new early intervention pathway.)
Significant changes to NDIS supports, assessments, reports, and budgets:
- “NDIS Supports” will replace “reasonable and necessary supports”, narrowing supports that will be funded by the NDIS.
- “Needs-based assessments” will replace diagnoses-based assessments, and produce “needs assessment reports”.
- The needs assessment report requirements will be developed in consultation with people with a disability, health and allied health technical professionals and governments.
- The “reasonable and necessary budget” will be determined by the needs assessment report and replace line-by-line “reasonable and necessary supports”.
- Reasonable and necessary budgets will be composed of “stated supports” (fixed budgets for things like assistive technology and supported independent living), “flexible funding” (e.g. for health or rehabilitations services), or both.
Provider boards and senior management must understand their NDIS compliance obligations and work with participants and others to improve their governance and leadership practices to enhance safety, quality, accountability, and responses to risk.

With thanks to the presenters at the Legalwise Seminars’ NDIS Law Intensive on 20 June 2024.

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

David Kinnane · 30 November 2022 · Leave a Comment

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.

NDIS guidelines expressly privilege some types of diagnoses for determining access. For example, the NDIA has published:
- a list of conditions that they deem are likely to result in a permanent impairment (an access requirement), including intellectual disability and Level 2 autism (Requiring substantial support) and Level 3 autism (Requiring very substantial report); and
- a list of conditions that do not require further assessment for accessing the NDIS for early intervention for children under 7 years, including Global Developmental Delay.

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.

The term “permanent” is not defined in the NDIS Act. However, there are “access rules” that have been made for the purposes of the NDIS Act called the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Rules). Rules 5.4-5.7 provide as follows:

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.

David Kinnane · 15 November 2022 · Leave a Comment

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:

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

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

You don’t need a diagnosis to get help from the NDIS.
Waiting lists to see some health professionals are very long – even in the private sector.
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.
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.
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”

The NDIA doesn’t deliver the early childhood approach itself.
Instead, the NDIA signs contracts with companies called “early childhood partners”.
Early childhood partners are funded by the NDIS.
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”.
You can find your local early childhood partners here. You should see a search box that looks like this:

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):

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.
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.

Broadly, your early childhood partner will consider three main types of support for your child as part of the NDIS early childhood approach.
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”.

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 fact sheets and videos about the early childhood approach: Help for your child younger than 7
NDIS Guidelines on the early childhood approach
NDIS Guidelines on early connections
NDIS Guidelines (general link for the most recent guidelines)
Section 25 of the NDIS Act 2013 (Early intervention requirements)
Part 6 of the NDIS (Becoming a Participant) Rules 2016 – When does a person meet the early intervention requirements?
“What is best practice in early childhood intervention – Reimagine Australia”
NDIS: List A: Conditions that are likely to meet the disability requirements
NDIS: List B: Conditions that are likely to result in a permanent impairment
NDIS: List C: What if you’re receiving disability support in Western Australia?
NDIS: List D: Permanent impairment/Early intervention, under 7 years. No further assessment required

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

David Kinnane · 7 November 2022 · Leave a Comment

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)

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