Into the unknown: NDIS framework emerges from COAG

By Stephen Easton

Friday February 10, 2017

The nine Australian governments have outlined a single nationwide regulatory framework that will eventually apply to all disability services provided to National Disability Insurance Scheme participants around the country.

The new set of national standards, published on Friday, is designed to apply when the NDIS is fully rolled out. “To meet demand, the workforce will need to double,” said federal Minister for Social Services Christian Porter. “A range of new providers are also expected to enter the market.”

Existing regulatory safeguards that apply via traditional government funding agreements with service providers will continue until they are supplanted by the NDIS, in which governments are expected to take a “market stewardship” role as recommended by the 2015 Harper Competition Review. The nine ministers who make up the Council of Australian Governments Disability Reform Council announced last Friday:

“The Commonwealth will establish a national complaint and serious incidents system and an NDIS Code of Conduct for providers and their staff.

“The Commonwealth will also establish a national registrar responsible for registering providers and overseeing their compliance with registration requirements, including compliance with the National Standards for Disability Services and Mental Health Services.”

Complaints about the National Disability Insurance Agency and its local area co-ordinators — most of whom are contracted externally rather than employed the agency — will have to go through the Commonwealth Ombudsman or the Administrative Appeals Tribunal.

The new system features three key roles: a complaints commissioner, an NDIS registrar, who will be responsible for overseeing providers and the operation of the market, and a senior practitioner to oversee “behaviour support” services.

Click to enlarge.

The Disability Reform Council said two key aims of the new framework were to enhance worker screening and minimise the use of “restrictive practices” in the sector. The document notes there are often better alternatives to these interventions, which involve “restricting the rights or freedom of movement of a person with disability, with the primary purpose of protecting the person or others from harm” during episodes of challenging behaviour.

The new regime recognises that at times in the past, these practices have crossed the line into assault and deprivation of liberty. It enshrines “positive support strategies to substitute the harmful behaviour with a positive one” based on understanding the underlying sources of discomfort that are causing the concerning behaviour, and states that restrictive interventions are only rarely appropriate:

“For the vast majority of people with behaviours of concern, it should be possible to eliminate the use of restrictive practices over time by understanding and responding to the issues underlying the behaviours.”

While the senior practitioner will oversee the kinds of behavioural interventions undertaken by NDIS-funded providers, “approval for the use of restrictive practices will continue to be managed through current state and territory government processes” under the new framework.

But the document released on Friday is much more than a traditional regulatory system with rules and enforcers. While light on detail in parts — it is “intended to be a high level-policy with significant work still to be done on the implementation design and roll out” — it seeks to explain in detail how the bold shift to consumer-directed funding and market-based support services will be coaxed into being.

The nine ministers said the new safeguarding system would guarantee NDIS participants “access to information and support in dealing with providers and avenues for resolving issues quickly, empowering them to have choice and control over decisions which affect them” and the document itself sets out how.

Services would have to be “person-centred” and providers would be expected to “maintain a trusted, competent and skilled workforce that reflects the values and principles of the NDIS”.

New rounds of consultation will be advertised later this year to give stakeholders like people with disability, carers, providers, peak bodies and the National Disability Insurance Agency a chance to have a say in how the evolving framework is implemented.

The document promises to uphold the vision that eligible people with long-term disability — or in some cases, their carers — will benefit greatly from having more choice between services and control over funding for care and support.

While not strictly regulatory in nature, “developmental measures” to help empower NDIS participants as consumers form a major part of the framework, alongside the more typical preventative and corrective elements of market regulation.

It says participants should be able to set their own risk appetite to some degree, and will need “the tools and information they require to make informed judgements about the quality and suitability of providers” and to speak up and make a complaint if something is not right.

The document describes a “connected approach to quality and safeguarding” and an “information system [that] must be built not only on information provided to participants, but information created by participants” through online forums and the like, so that people under the scheme can make choices based on word of mouth as well as independently verified data.

It suggests empowered consumers are their own best protection against poor trade practices, and notes the expected benefits of a free market depend heavily on the information that flows through it:

“Focusing on building the capability of participants and supporting them to make connections recognises that the actions people take themselves — or that their family, friends and others around them take — are likely to be the most important component of the quality and safeguarding system.

“It also recognises the need for participants to be informed and discerning ‘consumers’ for the benefits of a market-based system to be realised, in particular to encourage providers to be flexible, responsive to participants’ needs and innovative.”

The document also sets out how it is envisaged that the small number of NDIS participants who will self-manage their funding will be supported and protected, how a massively expanded workforce will be appropriately “skilled and safe” and how best practices can bve encouraged among service providers vying for NDIS funding.

The framework matter-of-factly claims it has got the balance right between protecting the consumers in the nascent market, while still allowing it to grow as envisaged:

“The bar for entry into the market is not set so high that it would prevent market growth and create unnecessary red tape, nor so low that it would enable workers and providers who would pose an unacceptable risk to participants to enter and operate.”

Only time will tell.

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