Provider Tips

Provider practice alert: For older children and adolescents with a disability, can ‘childproof’ fences and gates constitute restrictive practices?

David Kinnane · 29 August 2024 · Leave a Comment

Yes: In some circumstances, childproof gates and fences may be “environmental restraints” – a type of regulated restrictive practice.

Recent cases

In RKKR and National Disability Insurance Agency [2024] AATA 2913, an application to fund building works to raise the height of an existing fence to reduce safety risks for an autistic and intellectually disabled 8-year-old participant was refused by the Administrative Appeals Tribunal of Australia (AAT) because (among other things) the proposed works:

would have the effect of restricting the child’s rights and freedom of movement;
would restrict the child’s free access to all parts of his environment;
would involve the seclusion of the child in a physical space;
constituted “environmental restraints” requiring prior state government authorisation (which had not been obtained and which required (among other things)):
- a behaviour support plan written by a qualified behaviour support provider; and
- prior government approval approval under the NSW Restrictive Practices Authorisation Policy – June 2019; and
could therefore not be funded by the NDIS as the works (as a restricted practice) were contrary to the laws of NSW, the state in which the support would be provided.

In an earlier case, DFFG and the National Insurance Agency [2023] AATA 264, the AAT also concluded that a fence and gate were restrictive practices because they:

restricted a 12 year-old’s access to all parts of his environment; and
were requested in response to a behaviour of concern (a risk of absconding) and not sought merely because of the child’s age.

Specifically, the Tribunal found that,

“[t]he requested support, while enhancing the Applicant’s freedom of movement within the family property, is also intended to restrict his freedom of movement outside the family property. This is not because the Applicant is a child or young person, in which case the Applicant’s parents could install it privately. In this case, the Applicant’s parents seek funding for the fence as a means of addressing their issue of concern namely, that based on his absconding history he might abscond again, with potentially serious consequences for his safety…The Tribunal concludes that the requested support of a fence and locked gate is an environmental restraint and therefore a [regulated restrictive practice] within the meaning of section 9 of the Act.”

Why it matters

Most people take it for granted that they can move around their environments freely. But for too many people with a disability, including older children and young adults, this has not always been the case.

Restricted practices are any practice or intervention that has the effect of restricting the rights and freedom of movement of a person with disability. They include interventions such as seclusion, chemical, mechanical or environmental restraints.

Restrictive practices are regulated. NDIS providers must not use restrictive practices in respect of an NDIS participant except in limited circumstances and as last resort, and only with appropriate government authorisations and compliance with NDIS rules. In practice, this may require providers to have a specialist behaviour support provider develop a behaviour support plan. Registered providers also need to lodge evidence with the NDIS Commissioner that the use is authorised.

Bottom line

For infants, toddlers and other young children, child safety and injury prevention practices like childproof gates and fences are generally assumed to be age-appropriate and in line with community standards, and are not generally considered restrictive practices requiring state authorisation and/or NDIS notifications. Importantly, in these cases, childproof gates and fences are:

used irrespective of whether a child has a disability;
designed to promote children’s safety and wellbeing; and
not implemented in response to a participant’s so-called ‘behaviours of concern’.

With older children and adolescents with disability, the rules are less clear. Providers need to be very careful to ensure they comply with laws around environmental and other regulated restrictive practices, including to seek any required state approvals before implementing such gates or fences, and to make any required notifications to the NDIS Commissioner.

As the AAT cases referred to above demonstrate, gates and fences can, in some circumstances, constitute regulated restrictive practices, e.g., when they impinge on a child or young person’s freedom of movement, and/or when they are used specifically in response to behaviours of concern.

Both decisions make it clear that gates and fences can be regulated restrictive practices even when there are legitimate concerns about a child or young person’s safety, e.g., associated with risks posed by nearby busy roads and injuries from falls.

Providers who work with children and young adults need to take care to ensure that they do not engage in restrictive practices, except where permitted, and comply with state and NDIS laws in relation to the environments in which they provide supports, including with respect to gates and fences.

Disclaimer: we have done our best to ensure that this article is correct as at the date of publication (29 August 2024). It may not reflect any changes to the NDIS Act, NDIS rules or guidelines, or restrictive practice authorisations or policies, 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.

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

David Kinnane · 22 August 2024 · Leave a Comment

Some of our best private allied health clinics have shut down. Others may soon follow suit.

NDIS red tape and frozen price limits are part of the story. So too, are rising fixed costs, wages, and all the uncertainty about future NDIS registration requirements.

But, for allied health professionals operating clinics supporting children, there’s another source of uncertainty: the government’s proposal to create a new “foundational supports” regime for children with developmental concerns, delays or disability, and their families. These will be much-needed supports for children who have significant needs but do not – or will no longer – qualify for access to the NDIS. As yet, little is known about how they will work in practice.

Sounds like a good idea. So why the worry?

Many allied health services operate from small private clinics based in local communities. Many of these clinics are operated by sole traders, families, and small businesses. For many clinics, NDIS participants make up a sizeable part of their current caseloads, enabling owners to invest in improving their services, supervising and training staff, and keeping their lights on.

As proposed, foundational supports will:

sit outside the NDIS and operate as a separate tier of services between mainstream services (like childcare and education) and NDIS disability services; and
be funded jointly by federal and state governments.

Allied health providers who currently offer in-clinic NDIS-funded services to support children with developmental concerns, delays or disability are vulnerable to these regulatory changes because, if implemented, the reforms will see:

fewer children admitted to the NDIS as participants (i.e. fewer NDIS-funded clients); and
at least some in-clinic services replaced by services to be delivered in mainstream settings like childcare centres, preschools or schools.

Recently, Professionals & Researchers in Early Childhood Intervention (PRECI) published an interesting discussion paper on the foundational supports. If you own or work in an allied health clinic, it’s well worth a read.

As a clinic owner, a couple parts of the paper jumped out at me:

“Foundational supports should be embedded in mainstream settings and service systems and not be provided in clinical settings.” (p10.)
“Many service providers will need to refocus their services, retrain their staff and form new partnerships with other services. This will take time and a phased transition may be needed to avoid too much disruption.” (p12.)

My key takeaway: although it seems early, allied health clinic owners who support children with developmental concerns, delays or disability need to start rethinking their service delivery and business models to make sure they can adapt and stay in business.

How did we get here?

As the PRECI authors note,

“the current service system may not be fit for purpose….There are lots of resources and services but they do not form a coherent system that ensures that all families of young children get the support they need in a timely fashion. Services are funded and delivered in silos, not in an integrated way that enables them to respond to the needs of families in a holistic way.” (p10.)

Before the NDIS was a thing, states and territories were responsible for most publicly funded childhood intervention services for young children with developmental delays and disabilities. These services were limited, and some families elected to pay for private services, like speech pathology, occupational therapy and physiotherapy, often with the aid of Medicare and other rebates and schemes, and/or private health insurance.

When the NDIS came in, states and territories withdrew or significantly curtailed their services for children with developmental concerns, delays and disabilities. Understandably, many families of young children sought support for their children from the NDIS, resulting in an unexpected number of child participants. To borrow Bill Shorten’s phrase, for many families the NDIS was “the only lifeboat in the ocean”.

The resulting spike in the number of children admitted to the NDIS, and surge in demand for allied health services, and the atrophy of public sector services, increased the number of allied health professionals entering the private sector workforce to support paediatric NDIS participants, either through services delivered in homes, mainstream preschools and schools, in clinics, or both. The growth of the allied health industry was propelled further by a rapid increase in the number of universities offering allied health degrees to students (with government encouragement). Many allied health students and graduates are now trained and supervised in private sector clinics.

No one thinks the current system is perfect

Truth be told, it’s a bit of a mess. As the authors of the PRECI paper note, at least 10 recent or ongoing government reviews have focused on early childhood and/or disability services, with consistent findings that the market for childhood services is not delivering inclusive, timely, accessible help for children who need it. Silos operate across different government programs, with a lack of communication and coordination within them.

We all want better services and outcomes for children; and we all know NDIS reforms are necessary. Foundational supports are a good idea in theory. But the lack of detail makes it very hard for clinic owners to plan businesses and develop new service delivery models. This uncertainty is a disincentive to invest in clinic facilities, equipment, training, supervision, and teams. It’s easy to see why some clinic owners – already struggling to stay in business – might conclude that it’s just all too hard and exit the sector.

Don’t panic, but prepare for different scenarios

Although clinic owners working with children should start thinking about contingencies, the PRECI authors note that:

“[t]he transition to a service system that provides general and targeted foundational supports is a major undertaking…This will take time and a phased transition may be needed to avoid too much disruption.” (p12.)

“Many service providers will have a vested interest in participating in a new stream of foundational support services and funding. Care needs to be taken to ensure that their legitimate needs for an income stream do not outweigh the need to create a system that works for children, their families and communities.” (p13.)

As the late Charlie Munger once said: “The iron rule of nature is: you get what you reward for.” Incentives go a long way to explaining why we have so many private allied health clinics and so few public service systems; and why disability services and mainstream services (like health and education) operate as separate fiefdoms at state and federal levels, despite being so interconnected.

Governments know they need to move carefully, and that, if they change the incentives in one part of the system, they will change the system. They also know that, in complex adaptive systems, like disability, health and education, a change in one part of a system may have unintended and unpredictable knock-on effects for other parts of the system – and any other systems it interacts with.

State governments, in particular, face two major challenges: budgetary constraints and a service system challenge, e.g. about where the services will sit in early child education and care, health, education and welfare systems. For example, state governments will need to invest significantly in facilities, personnel, and systems to facilitate service delivery in mainstream settings.

The “real world” constraints and barriers to change associated with the current systems and access to mainstream settings should also not be underestimated. Child services and government support and regulation at the state and federal levels are highly interconnected. The predicted effects of major policy change must be assessed across the whole system.

Clinic owners are not alone: connect with others to make sure our voices – and the voices of the clients we serve – are heard

Some allied health peak bodies are on the case. And some terrific private allied health initiatives have been launched to raise awareness of the issues and to ensure our voices are heard. For example, check out – and follow – the important advocacy work of Yellow Ukulele, a consortium of seven allied health businesses across NSW, Victoria and Queensland.

Demand for allied health services from families of children with developmental delays and disability will remain strong because evidence-based allied health services help children to participate and are a good thing in the world. The key questions are whether and how various supports will be funded, how they will be delivered, how accessible they will be to children and their families, and what any new tier of disability services will mean for our service delivery and business models ‘on the ground’.

For those of us who own and work in clinics, it’s not too early to think about rebalancing our service mix to reduce risk, retraining our teams to deliver services in different ways, and forming new partnerships with other services. If we learned one thing from the pandemic, paediatric allied health professionals are adaptable to big changes while working within imperfect systems – with all their cost and time constraints – to deliver quality care to children who need it.

Recommended reading: Professionals & Researchers in Early Childhood Intervention – Foundational Supports for young children with developmental concerns, delays or disability, and their families: Discussion Paper (1 August 2024)

NDIS “ins and outs” for participants seeking “mixed” disability, health and education supports: mind the gaps between NDIS and mainstream services

David Kinnane · 15 August 2024 · Leave a Comment

Consultation on the Government’s proposed lists of permissible NDIS supports ends on Sunday. Many people have strong views about what participants should – and shouldn’t – be allowed to spend their NDIS funding on, including, of course, participants.

Public commentary has been spirited. Pockets of the media have fixated on a few hot topics, like fraud allegations, adult services, and obviously inappropriate spending on things like gambling, alcohol, tarot card-readings, and holidays.

But state governments, disability advocates, and many providers see a bigger problem brewing. It’s not a new problem, but it’s about to become more prominent and urgent.

Disability vs. Mainstream Services: where is the line?

As with the current system (and with some exceptions), the proposed “out” list includes “mainstream” government services like health, early childhood development, school education, higher education and training, justice, and aged care.

In theory, the split seems sensible. People should get the help they need from the most appropriate system. Participants should have the same access to health and education services as everyone else.

But, in practice, when looking at individual cases, the NDIS/not NDIS distinction is often harder to make than the current rules or proposed lists suggest.

A real world example

To understand some of the complexity, it helps to look at real world specifics, rather than abstract systems. In particular, it helps to focus on the individuals most affected: NDIS participants.

Take, for example, this Administrative Appeals Tribunal case from 2023. You had an 11 year-old Canberra boy with level 3 autism, a language disorder, ADHD, dyslexia, dyscalculia, and anxiety. The boy was an NDIS participant, probably because of his autism diagnosis. The AAT had to decide whether supports related to his dyslexia and dyscalculia – reading, writing, and maths intervention – should be funded through the NDIS.

Right now, when faced with this type of decision, the NDIA and the AAT have to decide whether specific supports are “most appropriately funded or provided through the NDIS” or through another service system, like health or education.

In this case, the NDIA argued that dyslexia was a learning disorder, that support with reading was primarily related to educational attainment, and that, therefore, the NDIS was not the most appropriate funder. Instead, the ACT Education Directorate was responsible for helping the boy to overcome his dyslexia. With regret, the AAT agreed.

Sounds logical. So what’s the issue?

The AAT decision seems like a logical application of the rules. Reading, writing and maths are school matters. So what’s the problem? Why was the AAT so reluctant to agree with the NDIA?

Just because a system is the appropriate funder doesn’t mean it actually provides the support

The evidence in this case established that the school system did not in fact provide a service that could remedy the boy’s reading and writing difficulties. All the school could offer was a bit of in-class help from a Learning Support Assistant who was also supporting other students. The AAT found it was:

“clear from the evidence given at the hearing that this intervention had no prospect of remedying the [boy’s] deficiencies in reading, writing and mathematics” and that the “interventions which the school is making are not sufficiently targeted to make any difference to the [boy’s] ability to read or write or progress in mathematics”.

But the AAT decision saved the taxpayer money, right?

It meant taxpayers didn’t have to pay for dyslexia support through the NDIS. But the longer-term costs to taxpayers can’t be so easily calculated.

The decision left a level 3 autistic, language-disordered, anxious 11 year-old in upper primary school without basic literacy skills. It left him without public funding for evidence-based help to overcome his illiteracy.

Not being able to read has significant adverse implications for a person’s education. But school ends when you are 17 or 18 years-old. Un-remedied illiteracy lasts a lifetime and, for many people, leads to significant adverse social effects and negative health, work, and justice system outcomes.

Schools are responsible for making reasonable adjustments to personalise and support students with reading and writing. But, if they don’t actually provide it, illiterate children become illiterate adults. Taxpayers may end up footing a larger bill for longer-term supports from another public service, like health or justice.

No bright-lines

The Canberra boy has a permanent disability. He has health needs. He has educational needs. His disability, health, and education issues interact with each other. His disability, his health needs, and his educational challenges all affect his ability to function and to participate in life.

In truth, you can’t draw neat lines between disability and mainstream health and education services for people with disabilities, despite what the rules say. As noted by the AAT:

“The rules set up a dichotomy between supports which ameliorate the functional impact of a disability of activities of daily living [which are NDIS-funded] and supports which primarily relate to educational attainment [not funded by the NDIS]….The [boy] in his submissions highlights that there is a relationship between his educational attainment and his activities of daily living and so this strict dichotomy is hard to apply. If a person has not mastered basic…reading, there will be an impact on their functional capacity to undertake activities of daily living.”

The AAT didn’t disagree with the boy’s point, but concluded they did not have discretion to disregard the rules as written.

Remember that taxpayers are on the hook for all public services

Disability and mainstream health and education systems operate independently but are interdependent – and all funded by taxpayers. This was recognised by the Productivity Commission way back in 2011:

“Access to generic services, such as health…can affect demand for NDIS-funded services, and vice versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS…). This ‘pass the parcel’ approach would undermine the sustainability of the [NDIS] and the capacity of people with a disability to access mainstream services.” (My emphasis.)

Arguably, this game of pass the parcel is exactly what’s happened. States have underinvested in funding mainstream education and health services for people with a disability. Too few supports exist for people with disabilities who are not NDIS participants. One of the main reasons so many people fight so hard for access to the NDIS is that it’s the only real help available.

So why’s the problem about to get bigger?

The Federal government has decided to implement ‘foundational supports’ – disability supports outside the NDIS. If you don’t know much about them, check out this excellent summary by Sina Gingold of DSC.

The foundational supports proposal is a good idea in theory. It is intended to ensure the NDIS is sustainable and focused on supporting people with lifelong disabilities, while also supporting people with a disability who are not participants to get support when they need it in childcare, schools, homes, and community care settings.

Properly funded and skilled front line disability supports in mainstream settings, like schools, could provide exactly the type of help needed by people like the dyslexic Canberra boy. But it has triggered a furious debate between Federal and state governments about the future interdependence of disability and mainstream health and education services for people with a disability and, most immediately, who will fund them.

It’s no surprise that state governments are asking for more time and a new intergovernmental agreement. They’re facing two main issues: a lack of detail on the funding for these proposed additional mainstream services for people with a disability; and a lack of trained people with the skills and systems to deliver them.

Conclusion

Most allied health NDIS providers – including speech pathologists, occupational therapists, and physiotherapists – support people to increase their functional skills, independence and participation, consistent with the purpose of the NDIS.

Ideally, our aims should be to support the whole person in front of us, rather than to focus on arbitrary and false distinctions between an individual’s disability, health and education difficulties.

In reality, like NDIS participants, we have to operate within different systems and to follow different rules around different supports depending on the system or systems we are working within at the time. Regrettably, this means we sometimes have to work with participants on discrete challenges in isolation, while ignoring significant challenges that may affect the participant adversely more in the longer-term.

The Canberra boy’s situation is a good case in point. Presumably, he was receiving some NDIS supports for his oral language disorder associated with autism, executive function challenges, and anxiety under the NDIS, while not receiving supports for his written language (reading or writing) despite lots of evidence showing that oral communication skills, mental health, and literacy are related, and that illiteracy leads to poorer longer-term social and mental health outcomes for adolescents and adults.

People with a disability should be able to access support for their health and education challenges like everyone else. Taxpayers fund the NDIS and mainstream services, and games of pass the parcel between governments do nothing to help participants live their lives well. It’s also unclear if they end up saving taxpayers money after you consider the long-term consequences of limiting supports in one system knowing that there are major deficiencies in the system “most appropriate”.

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

David Kinnane · 7 August 2024 · Leave a Comment

On Sunday, 4 August 2024, the Federal Government released a consultation paper on draft lists of NDIS supports. It gave everyone only 14 days to respond.

Big Picture

If enacted, the NDIS Amendment (Getting the NDIS Back on Track) Bill will allow the Government to make new rules about what is – and isn’t – an NDIS Support. But Commonwealth and State governments will then need to agree on the detailed rules, which will take time. Until this happens, the Government wants a transitional rule in force, including lists of supports that will – and won’t – be funded.

Proposed “ins and outs” for allied health-related services

What’s in

What’s out

Therapeutic supports: “evidence-based therapy supports provided to assist a participant to apply their functional skills to improve participation and independence in daily, practical activities in areas such as language and communication, personal care, mobility and movement, interpersonal interactions and community living”, including “further assessment by health professionals for support planning and review as required”.

Early intervention supports for 0-9 year-olds, including “a mix of therapies”.

Specialist positive behaviour support.

Some disability-related health supports (including some dysphagia, continence, respiratory, nutrition, diabetes, epilepsy, podiatry and wound and pressure care supports).

Communication, information and personal mobility equipment.

Exercise physiology, specialist hearing supports, therapeutic massage directly related to disability, and some interpreting and translation help.

Alternative and complementary therapies like crystal therapy, tarot cards and clairvoyants, cuddle therapy, reflexology, aromatherapy, sound therapy, yoga therapy, wilderness therapy, alternative or complementary medicine.

Wellness and coaching services like general massage, sports supplements, life-coaching, hypnotherapy, neurofeedback, gaming therapy, mastermind coaching, somatic therapy and kinesiology.

Energy and healing practices such as Reiki, Scalar Lounge, frequency healing and energy balanced massage, deep energy clearing, spinal flow technique and shamanic healing, hair and beauty services (including nail salons).

“Mainstream” services, including health, mental health, child protection and family support, early childhood development, higher education and vocational education and training, employment, housing and community infrastructure, transport, justice, and aged-care services.

Lists have limits

Many participants, providers, and taxpayers want clarity on what NDIS funds can be spent on. But the lines between “disability” and “mainstream” services are harder to draw in practice than the lists suggest, and disputes are inevitable.

Will (can) the States cover support gaps for participants and others with disabilities in health and education services?

What happens if governments can’t agree on a future ‘permanent’ rule?

Will we be stuck with the lists?

Have we considered the second– and third- order effects of these changes for participants, state governments, providers, and taxpayers?

It’s very hard to think through these issues properly in the very short consultation period while also delivering services to participants.

Go deeper

Consultation on draft lists of NDIS supports

NDIS regulatory changes are coming: allied health providers should stick together to advocate for participant choice and control

David Kinnane · 2 August 2024 · Leave a Comment

For allied health NDIS providers, significant regulatory changes are coming:

The Independent NDIS Review recommended significant reforms, including the development of a risk-proportionate model for the visibility and regulation of all providers (including us).
An NDIS Provider and Worker Registration Taskforce is providing advice to the Government on how to deliver it.

Uncertainty abounds. We don’t know what the new rules will look like. We don’t know how they will apply to allied health providers.

At the same time, we’re grappling with pricing limits, worker shortages, inflation, and other business risks. It’s no surprise that many of us complain about upcoming regulatory changes in terms of mandatory registration, increased compliance costs, and more red tape.

The danger of all this negative talk about costs and risks is that it sounds defensive and even self-indulgent. But, when it comes to regulation, allied health providers have an overwhelmingly positive story to tell and an important role to play in advocating against changes that could reduce NDIS participant choice and control in the real world.

Allied health professionals are already well-regulated. Most allied health providers work hard to deliver evidence-based supports to participants, and to improve their service quality in response to participant feedback. Like participants, we want the NDIS to work. We want the NDIS to deliver for participants.

What do we want?

We want participants to have more choice and control over the supports they purchase and the providers they work with. We want the NDIS to be safer for participants. We want the NDIS to be sustainable. We want the NDIS to be cost-effective for participants and taxpayers. We want to stamp out abuse, fraud and other criminal, unethical and bad behaviours. We want more innovation, competition, and investment to increase productivity, service quality, value for money, and options for participants.

What do we not want?

We don’t want to return to the bad old days of pre-NDIS block funding with no participant choice or control. We don’t want market failure caused by a lack of providers. We don’t want anti-competitive behaviours or markets dominated by a few big providers. We don’t want more thin markets or market failures. We don’t want to drive quality providers out of business with increased compliance costs that are disproportionate to the risks or the size of their activities.

We’re arguing with each other about the wrong things, based on wrong assumptions

In the wider provider sector, too much time and energy is expended arguing about the pros and cons of registered versus unregistered NDIS providers, and their eligibility to deliver different support types to participants. Generalisations infect the debate on both sides.

Despite the work of the NDIS Provider and Worker Registration Taskforce to allay concerns, some providers assume that mandatory registration will mean the imposition of expensive quality compliance processes and external audits on all providers. Some assume that participants want to work only with registered providers; or that unregistered providers are unregulated cowboys and girls; or that the services of registered providers are guaranteed to be safer and of higher quality than the services of unregistered providers. All these assumptions are false.

Key points we need to communicate better to participants, the Government, and taxpayers

Allied health providers are a diverse bunch. Some of us are big, multidisciplinary, multisite practices, and some of us are part-time sole traders offering mobile services. Some of us are 100% disability-focused, while others provide services to participants and people without disabilities. Some of us work in clinics, while others work in participants’ homes, in schools, workplaces, and a whole range of community and other settings.
Allied health professionals are already well-regulated. For example:
- Practising physiotherapists, occupational therapists and psychologists are regulated by the Australian Health Practitioner Regulation Agency (AHPRA) in partnership with each profession’s National Board and are subject to AHPRA standards.
- Certified practising speech pathologists, dietitians, exercise and sports science practitioners, and audiologists are regulated by their professional peak bodies who, themselves, are members of the National Alliance of Self Regulating Health Practitioners (NASRHP), and therefore subject to NASRHP standards closely modelled on AHPRA standards.
- All these allied health professionals are subject to standards on scope (areas) of practice, codes of ethics/practice and/or professional conduct, complaints procedures, competency standards, course accreditation, continuing professional development, English language requirements, mandatory declarations, professional indemnity insurance, practitioner certification and recency and resumption of practice requirements.

All allied health providers delivering NDIS-funded services are regulated by the NDIS Quality and Safeguards Commission to some degree:
- Some allied health providers are registered with the NDIS Quality and Safeguards Commission, including some of the larger providers, and providers who provide behavioural supports and/or use (high risk) restrictive practices. Among other things, registration involves providers implementing quality compliance processes to meet NDIS Practice standards and undertaking regular external audits. (In practice, it is time consuming and expensive for providers to get and maintain registration.)
- Some allied health providers are not registered with the NDIS Quality and Safeguards Commission, including many sole traders, other small providers, and providers who offer their services to both NDIS participants and other clients, and/or service mixes that include disability specific services and other services. These providers are often referred to as “unregistered providers”. However, they are subject to the NDIS Code of Conduct and can be fined and banned by the regulator.

All allied health provider services are subject to the Australian Consumer Law, including consumer rights and guarantees.

Many participants prefer to work with (generally smaller) unregistered allied health providers or a mix of providers. For example, Professor Helen Dickinson and her colleagues found that many of their interviewed participants spent funds on allied health services and that, “while many allied health providers and therapists are not NDIS registered, these providers typically hold registration or accreditation with their appropriate professional bodies…[and] that NDIS registration would not provide any additional level of safety or quality”.

The evidence from the Royal Commission was clear: registration doesn’t guarantee safety. As Disability Sector Leader Dr George Taleporos states in no uncertain terms: “Registration does not keep people safe.” Dr Taleporos has also warned of several possible adverse consequences of mandatory registration, including service shortages, reduced competition, and less choice and control for participants.

Best world outcomes

If things go well, we’ll end up with:

a proportionate and graduated regulatory system that takes into account the diversity of allied health provider businesses and services and their existing regulatory frameworks;
clear rules that don’t conflict with or duplicate existing rules;
a minimum of red tape so we can focus our limited time and resources on service delivery to participants and improving quality;
clear communication of the rules to everyone affected;
external monitoring of compliance with rules;
enforcement when noncompliance is identified;
proper adjudication of disputes about regulator decisions;
sanctions for non-compliance; and
continuous evaluation and adjustment of the regulatory system as things change.

Final thoughts

For many allied health providers, the real debate is not about mandatory registration, but about what ‘registration’ will actually mean under the new rules for different allied health providers. To make decisions about the future of our businesses and disability services, we need to know how much it will cost to comply with new rules, how long it will take to obtain registration (whatever that means for a given provider), and how much time (and how many management and worker resources) will be needed to maintain it. An important open question is whether, under the new system, price limit controls will extend to services purchased by self-managed participants.

The devil will be found in the details. If the government gets this wrong, we’ll see an exodus of allied health providers from the sector, reducing participant choice and control over who they work with for their supports.

Allied health providers should engage with participants to ensure this doesn’t happen.

Breaking (potentially good) news update

As so often happens, immediately after publishing this article, the NDIS Provider and Worker Registration Taskforce published its Advice. While this will take some time to read through in detail, a quick read of the registration recommendations looks promising for allied health providers:

For AHPRA-registered allied health professionals (such as physiotherapists and occupational therapists), the Taskforce has recommended that the registration by AHPRA be recognised as registration for the purposes of NDIS where this can be achieved. (This recommendation is in relation to registration only and does not apply to worker screening.)
For self-regulated allied health professions whose peak bodies are members of NASRHP (such as speech pathologists and dietitians), the Taskforce has recommended “consideration be given to the appropriateness of extending a recognition of those registration schemes to self-regulating allied health professionals, noting that any such assessment would need to consider the requirements of the self-regulated environment and other relevant matters”. Again, this recommendation is in relation to registration only and does not apply to worker screening.

If this advice is accepted, it has the potential to considerably reduce the regulatory burden associated with reporting to two regulators (e.g. the NDIS Commission and AHPRA/peak bodies) and to streamline the process for practitioners. As the Taskforce notes, “it would remove the main barrier to registration which has been raised with the Taskforce by allied health practitioners who are currently not registered NDIS providers”.

But, of course, a lot will depend on specifics, and the Government’s response to the recommendations.