Marita Walker – 07/10/2021

1. The key changes included are likely to result in improved experiences particularly in terms of the engagement principles, capacity for variation of a plan, distinction between S48 and S100 reviews and provision of draft plans.

2. While overall the inclusion of timelines is likely to be positive I am concerned that there will be circumstances which result in a decision being made because the deadline is looming rather than all the appropriate stakeholders being consulted and the required information gathered and then carefully considered to ensure the best possible decision is made.

1. Tune recommendation 19 implementation results in a much more significant change to the current options for plan management than was likely intended. It reframes plan management as a “ form of self management “ on the basis that it enable access to the unregistered provider market. There is an inherent assumption that “ unregistered “ equals “un regulated” and also that these are providers of specific disability services. The original intention of enabling a broader choice of how needs could be met was the recognition that inclusion in the community can be achieved in many other ways than disability specific service provision often more effectively and at a lower cost.

The “ additional protections” which are described as being in place for registered providers are yet to clearly demonstrate to result in a reduced risk of abuse, neglect or exploitation. The information presented to the Disability Royal Commission demonstrates this can occur in all settings and circumstances.

The considerations for self management that are proposed in the Plan Management Rule changes are very extensive and will be difficult to implement effectively and consistently. Further comment on this will be provided specifically in the section on feedback on the Rule.

The new subsection 43 ( 6) which “ gives a hierarchy to plan management request so that if a participant or participant requested plan management provider ….” Assumes that there is a particular plan management provider who has been chosen and assessed and found to present an “ unreasonable risk ‘ for the participant. Given there are a wide range of plan managers in the market it is not clear if this assessment applies to only the one already chosen by the participant. What happens if another plan management provider is chose and then another?

Items 28, 29, 30 and 31 again state that plan management is to be treated as a form of self management. The risk assessments in relation to the participant and their nominee does not provide acknowledgement this is likely to be a combined decision making in which there is opportunity to build the capacity of both parties. This would be consistent with the principles relating to building capacity and facilitating maximum self determination. The fundamentals of the person with disability being the expert in their own lives. All these matters have been canvassed in the recent Consultation paper on Support for Decision Making.

New subsections 44 ( 1) & 2 & 2A expand the criteria from “present an unreasonable risk” and adds the capacity for “a rule to prescribe matters that must not be managed by the participant”. “ Matters” is very broad and could cover extensive circumstances and support types. This is a significant increase in scope for decisions to be made by NDIA staff and partners who may not have even met the participant to deny the opportunity to self or plan manage. These changes are not consistent with the Tune recommendation.

Payments made under the NDIS include components that are positive and will be welcomed by self managing participants and reduce the need for plan management providers. However the key wording is to clarify “ how payments can be made under the NDIS Scheme”. The example of Sally who lives near Dubbo paying for hydrotherapy is straight forward in terms of the therapy cost using a POS system however it is unclear how the issue of travelling 100 km will be captured.
While I understand the rationale for having more information about how participants are using their budgets there are circumstances where the requirements of the point of sale payment mechanism may not be compatible with self managers directly employing their own staff. For example payment of salary to an employee does not involve an ABN. It is important the legislation does not mandate use of the new payment platform. This would constitute a further limitation in terms of being able to source innovative solutions to achieve the participants goals .

. The explanation of this section doesn’t reference the source of the change or what the changes are from the previous rule. If this relates to supports such as school transport then I can see it is appropriate however overall the circumstances are not clear.

The example provided in the explanation is misleading in terms of the main concerns that led to there being a change in the area of supports not be provided by particular providers. Shaylea ( unlikely to have MS at 19 in the first instance ) is very clearly aware of the potential limitations of Ultra care as a provider and the potential for conflict of interest. She can exercise the choice about her therapy provider with this knowledge and select a different provider for support coordination. The driver for change was the much larger cohort of people with significant cognitive impairment who over a long period of time have received day services in a segregated setting, support in a group home owned by the provider and since the NDIS also receive Support Coordination by the same provider.

The heading of Section 8 references ‘particular providers”. The wording underneath references a “particular person”. This appears to be contradictory.

I understand that this section can only be applied by consideration of an individual participants situation. Therefore there would need to be evidence from reports to substantiate one or more of a) to d) as well as how all the matters in (2) have been considered. It is unclear how this information would be collected as the support providers themselves are part of what is being examined. It is not clear how this highly individual approach with a significant requirement for information addresses the Tune recommendation 16b.

. Comment has been provided in an earlier section about the legislative changes that consider plan management as a form of self management. These are under the heading Schedule 2 – Flexibility and are a context to the comments made in this section. The matters for consideration are not consistent with the opportunities for innovation through use of unregistered providers which are not necessarily disability specific providers. While options for mitigation of the risk is mentioned as the first consideration ( a) this is in a context of the assumption that non registered providers are not desirable and potentially harmful ( b ) . Consideration (b) also requires that the person making this call is able to predict the choices to be made by plan management provider, plan nominee or child representative. This is totally unrealistic and not practical in term of implementation. The same consideration in Section 10 ( g) is equally unrealistic and impractical. This consideration should be removed.
Consideration 2 ( c) relates specifically to the Plan Nominee and introduces the term “ misapplied”. This has no definition and is open to wide interpretation. It is not clear if it means the very tightly defined term “fraud” or the opinion of the NDIA delegate that it wasn’t exactly the support as defined by the line item. The Section 10 c) has the same grave problems . These considerations should either be substantially revised or removed.

Section 9 2 ( d) similarly has problems in terms of prediction and judgement that funds will be spent in accordance with the participant or child’s plan although there is a least a threshold test of ‘ a reasonable person”.

Section 10 In Section 9 (a) the extent to which risks could be mitigated is the first consideration . In Section 10 it is ( h) and (i) which gives an impression that it less important. It is recommended these be the first and second of the considerations .
(c ) The consideration of the participant to make decisions is very broad and provides no reference to the wide range of factors that impact on decision making that were set out in the recent consultation paper on Support for Decision Making.
(d) the consideration is very broad and not specific to the level of understanding and skill required for the particular type of support to be self managed. For example all the plan funds or a specific therapy or part of community participation funding.