The Rebuttal

On Thursday 22nd of August the Government, with the support of the Coalition (of all people), pushed through legislation in Parliament to begin a comprehensive reform of the NDIS. Put simply, the NDIS is costing too much. The Government wants to cut costs as much as it can so that the NDIS doesn’t fall apart.

Sadly, everything about the new legislation is in legalese. There are very few accessible and practical explanations of what the legislation means. This means many people with a disability don’t have a clue what is going on. Me thinks the Government need to take a look at section 6.1 of the Disability Royal Commission recommendations about accessible communications. This should have happened as soon as the legislation was passed, not after. No interpreters at the pressers for NDIS related reform??? Not good enough.

I am not 100% across the new legislation either. So, what I have done here, rather than speak in legalese, is try to give some practical examples about how the legislation might change things. Particularly for people who are Deaf and hard of hearing.

The government wants to tighten the eligibility criteria.

Initially the NDIS was designed to help 460 000 people. It’s now at 600 000 and continues to grow. This has shocked everyone. No one predicted, for example, that 35% of participants would have Autism as their primary disability. They were further shocked that 78% of all NDIS participants under 18 have Autism as their primary disability.The original designers of the NDIS had this rather unrealistic idea that the NDIS would make lots of people more independent. It was their belief and hope that over time their need for the NDIS would lessen to a point where many would not need the NDIS anymore.

That didn’t happen. Instead, much of the support required stayed stable or increased overtime. Many of the people that the original designers of the NDIS thought would drop off the NDIS overtime are still there and the cost to support them is ongoing and increasing.

What the Government wants to do is get the States to take more responsibility so that the NDIS can, for want of a better word, offload people to the States. Particularly young people with a disability who receive early intervention.

They want the States to provide early intervention services through what are called ‘foundation services’. What foundation services will look like I have no idea. But for deaf kids, how they receive Auslan or speech therapy may be impacted. Audiology and hearing aid services are likely to continue through Australia Hearing. The responsibility for other supports now might be on the States. We will see.

I also suspect that there are many adults on the scheme who the Government feels should not be there either. I believe the new legislation will provide greater powers to the NDIA to deny, challenge and remove people from the scheme who they feel should not be there.

Can and cannot buy lists

The new legislation has provided the NDIA with more powers to say what can and cannot be purchased through the NDIS. There are lists being developed that will say what is considered an NDIS responsibility and what is not. This list will include both services and technology.

For people who are Deaf and hard of hearing this has been a very contentious area of the NDIS. Mostly because the decision making of the NDIS has been inconsistent. What one person can get, another cannot. For example, smart watches can link to alarms, alerts and draw attention to the fact a phone is ringing. Many argue that this is disability specific and that they should therefore be able to buy them with NDIS funds.

Some deaf people have managed to get Smart Watches while others have been denied. Some people get sophisticated visual alert systems that are safer and hard wired while others are forced to make do with cheaper, less effective and battery-based technology that is less reliable. Don’t get me started on the trouble the NDIS makes for people needing specific hearing aids. The NDIS will try to only approve the cheapest hearing aids possible, come hell or highwater. (This I know, having supported several people to appeal decisions, some successfully and some not.)

What will and won’t be on the lists is anyone’s guess. It is an attempt by the Government to prevent expenditure on what they deem as not disability specific and just everyday items. The disability community is up in arms about this. They are arguing that each individual has a different need and that a prescriptive list is not fair.

The list does not just outline technology, it also will outline types of supports and services that can be provided. The Government also seem to have legislated the NDIA new powers so that they can check up more regularly whether supports or technology purchased meet the guidelines. I would advise self-managed NDIS participants to be very certain that anything that they purchase is allowed.

Providers must register

Fraud from unscrupulous participants and service providers is costing the NDIS billions of dollars. The Government is keen to stop this. One of the ways they want to do this is by ensuring that all providers of services through the NDIS are registered.

As Bill Shorten explained on the ABC show, Insiders; we wouldn’t want a taxi driver to be driving us who had not shown that they had a license. Shorten explained that it is reasonable to expect that all NDIS providers should be registered and show that they can do the job.

For example, they should all have police checks and if they are working with children, Working With Childrens Checks. All service providers, big or small, under the new legislation will need to lodge proof that they have these clearances as part of their registration process. Currently, only registered service providers are required to do this.

By registering all providers, the NDIA, presumably, will be able to monitor providers more closely. I believe that the legislation is proposing a three-tiered system that depends on the level of support, amount of support and the skill level required.

Many Deaf people negotiate private jobs with their favourite interpreter. Some Deaf people use a person that they are comfortable with who may not have any qualifications at all. The new legislation is likely to mean that Deaf people can only use interpreters who are with an agency or who have registered with the NDIS who have provided proof of their qualifications.

Some will rejoice at this; others will be frustrated at the loss of choice and control that it brings with it. It most certainly will prevent interpreting funding being fraudulently used for things such as cleaning which is known to happen. I suspect interpreters will have to provide their NAATI registration number for every job that they do under the NDIS. That is not necessarily a bad thing.

More power to the NDIA to tackle fraud and rorts

If the NDIA feels that a plan is not being used correctly and funds have not been spent properly for NDIS purposes, they now have stronger powers to issue debt notices and demand participants repay the misspent money. Likewise, if they find a provider is overcharging or using ‘creative accounting’ they have more powers to now hold these service providers to account, prosecute and demand repayment.

I guess that with these new powers participants and service providers are on notice that the NDIA will not tolerate misuse of funds or incorrectly claiming funds. It will use its powers to recoup money that it believes has been wrongly claimed or spent.

New navigator services

The new legislation is apparently phasing out Support Coordination, Plan Management and Local Area Coordinators. The aim is to set up what the Government has named Navigators. Detail on how Navigator supports will be structured is scant.

Previously, Local Area Coordinators acted as information gatherers and provided information to the NDIS delegates about what was needed in a participant’s plan. From this information NDIS delegates would develop and approve plans. The information gathering and plan development, from my reading, will now be the sole domain of the NDIS delegates. NDIS delegates previously only gathered information for plan development for more complex participants.

Many readers will be familiar with Support Coordinators and Plan Managers. These supports are charged at an hourly rate and funded in plans where required. There are many great Support Coordinators and Plan Managers but there are also some shonky ones that practice what can only be described as ‘creative accounting’. It is believed that the new Navigator services are partly designed to reduce costs and expenditure on Support Coordinators and Plan Managers.

My understanding is that the aim is for Support Coordination and Plan Management to no longer be funded in plans. It also seems that the Local Area Coordinators services costs will be absorbed into the new Navigator role. The NDIA will develop a tender process where service providers can tender to become Navigators. How the Navigator role will be funded and structured, I do not know.

Suffice to say, the organisations that win the tenders for Navigator services will likely receive block funding. They most likely will be charged with assisting NDIS participants to:

1. Apply for NDIS Access (New participants)
2. Understand and implement plans, find service providers and set up services.
3. Where needed, carry out the old Plan Management role.
4. Assist those people with a disability that don’t qualify for the NDIS to locate and access local State based services, including the mysterious foundation supports.

That’s my reading of it anyway. I know that some of the Navigators will be ‘Specialist Navigators’. Maybe there will be ‘SPECIALIST’ Deaf Navigator services too, who knows. I suspect Navigator services will be tendered per region, not dissimilar to how the current Local Area Coordinator providers were set up. Successful tenders will recruit suitable employees that can fulfil the various roles. This is just me being Nostradamus. The devil will be in the detail.

I must stress that what I have written above are entirely my own interpretations and readings of the various information that has been distributed. The opinions within are entirely my own as well. What I have written only scratches the surface of the new legislation. I could be very wrong in many of my assumptions. I encourage people to ask plenty of questions.

Hopefully, there will be some clear and easily understood information coming from the Government soon about the new legislation and what it means. All I really know is that the Government means business in cutting the cost of the NDIS. The intent is to make NDIS sustainable into the future.

Will these changes succeed in reducing costs? Are these changes fair? Will they make the NDIS better? That I do not know. A lot of the suggested changes make me feel very uneasy. All we can do hereon is WATCH THIS SPACE. There is no stopping the juggernaut that Bill Shorten has bludgeoned through.

*** Please note this article is an attempt to explain the impact of some of the NDIS legislation without the legal speak. This article only explains the impact of a very small part of the legislation.