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)
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