In August 2020, the Federal Minister responsible for the NDIS, Stuart Robert, announced the “most substantial package of reforms” to affect the NDIS since it began. In November 2020, the Department of Social Services released an information paper about the proposed changes.
Are the Federal Government’s planned radical changes to the National Disability Insurance Scheme (NDIS) – including new, forced, independent assessments and tightened eligibility – purely about cost cutting? A growing number of disability groups and advocates claim this to be the case. Social affairs journalist from the Saturday Paper agrees and in a series of articles on the NDIS over the past six months says that the Government “has been playing a years-long game of policy chess. All the key pieces are now in position to fundamentally reshape the nation’s disability scheme.”
This week, the ABC’s Investigations Unit ran a story looking at the massive profits made by the 8 organisations picked to roll out the new eligibility testing regime. This issue was also the subject of a Senate Estimate hearing this week too. One of those organisations – Allied Care Group – is run by Rob De Luca, a former head of the National Disability Insurance Agency (NDIA), the agency which runs the NDIS.
New independent assessments
One of the most significant changes to be introduced to the NDIS is the introduction of mandatory independent assessments. These are planned to commence in mid 2021 for new NDIS participants and for all existing participants when they undergo a review.
In 2011, the Productivity Commission said that independent assessments should only be used when the right assessment tools become available and the 2019 Tune Review said they should remain optional.
At the moment, assessments are done by the health professionals who are treating the NDIS participants. Under the proposed changes, the assessments will be done by a third party without direct knowledge of the case.
NDIS functional capacity assessments are there to ensure support is provided based on a person’s needs, not their diagnosis.
The Minister and the National Disability Insurance Agency – which administers the scheme – argue independent assessors will ensure consistency in decision-making and equity for NDIS participants. Read the NDIA website page here.
Rick Morton points out that numerous experts and advocates disagree. He cites the decision by the Victorian Advocacy League for Individuals with Disability (VALID) to withdraw from any further consultation processes around the independent assessors measure. CEO of VALID says that the “unintended consequences of the current proposal will be potentially devastating for people with intellectual disabilities and their families.”
The West Australian Disability Services Minister has also expressed concern about implementing the changes, particularly in rural and remote areas.
The SMH reported this week that the Disability Discrimination Commissioner wants to see “material changes” to the assessment process. “The practical operation of these independent assessments is critical and their implementation has caused widespread concern and comment from people with disability, disabled persons organisations, advocates, academics, carers, and health and medical professionals” said Commissioner Ben Gauntlett.
The Guardian reports that a coalition of 20 disability advocacy groups and a peak body for service providers have added their voice to growing opposition to the new policy. David Moody, the chief executive of National Disability Services, is calling for the reforms to be halted.
He told The Guardian that he was not confident the assessments would allow a “complete and accurate understanding of the functional abilities of people with ‘invisible’ or complex disabilities”. The real worry for us is that these results cannot be challenged or appealed easily.” In fact, people will not be given a copy of the full assessment report unless they apply to see it and the hurdles that presents for a person with disability is unacceptable.”
The other issue of concern is whether the providers who are to perform the assessments would be contracted by the government – creating a conflict of interest. Former NDIA chief executive David Bowen has said the NDIA must maintain a strong separation between assessors and NDIS providers — especially if they are part of the same parent company. He also added his voice to criticism of the new independent assessment model telling the ABC “I think the government’s doing this to save money”.
Morton quotes Minister Stuart – “Independent assessments and legislative changes to provide more guidance and clarity on the boundaries of the NDIS are not designed to reduce people’s budgets, rather it delivers consistency with the original intent of the scheme to ensure equitable access to the NDIS and to allow more flexible use of plans.” The Minister says that the Government will pay for independent assessments instead of NDIS applicants paying for their own assessments by their treating physician.
Changes to the NDIS Act
Moving towards independent assessments will require amendments to the NDIS Act.
Draft legislation is to be released for consultation ahead of its introduction to parliament, with a target of the changes becoming law by mid-2021.
The key change will be to section 35 of the Act -and Rules thereunder – which relate to the assessment and determination of reasonable and necessary supports that will be funded for participants under the NDIS.
It is likely that the Federal Minister and his delegates would be given a great deal more power to make decisions under the “exclusionary power” in section 35. The Federal Government has already signed agreements with each state and territory government, except WA, to hand powers back to the Commonwealth.
The SMH and The Age have obtained a confidential 300-page draft of proposed legislative changes that include hundreds of comments from senior decision-makers within the National Disability Insurance Agency – the agency which administers the scheme – raising concerns over proposed changes. The media outlet says the document shows radical changes are proposed including denying funding to Australians with acquired brain injuries and fetal alcohol spectrum disorder as well as reducing avenues of appeal for participants as part of secret plans to save costs.
The controversial decision of the Federal Court regarding services provided by a sex worker are specifically targeted in the reform proposals.
Automatic access scrapped
The list of conditions that currently give individuals “automatic access” to the NDIS also look likely to be scrapped. Every person in the scheme will have their support reassessed from the end of 2021 if they seek a plan review or have a change in circumstances. The concern expressed by NDIS providers and others is that this process will be used to make it harder to claim, will reduce funded care and ultimately NDIS supports.
Cost cutting and power back to the Federal Government?
The NDIS has been funded historically through a 0.5-percentage-point increase in the Medicare levy. The Future Fund administers the Disability Care Australia Fund (DCAF). Annual payments are made to jurisdictions based on their population share of the NDIS.
The then Gillard government intended that the states would remain jointly in control of the NDIS. Morton says that the current Coalition Government has had included a clause in each agreement handing back significant control to the Commonwealth – a change he says is “seismic”.
Many fear a model proposed to end inequity in assessments will instead just duplicate unfairness with more layers of bureaucracy.
Former prime minister Julia Gillard who wrote the NDIS into law told Morton that people “campaigned for the NDIS because they wanted to be able to make decisions about their lives and to customise the best mix of services for their unique circumstances, needs and life plans”. Any reforms to the NDIS must remain true to these aims.”
Cost cutting by the NDIA is already here. Over recent years, thousands of participants have had support stripped or reduced only to have the decisions reversed by tribunals hearing appeals from those decisions.
Contact Catherine Henry Lawyers for legal support regarding NDIS cases and complaints
Parts of the Hunter region was a trial site, and the Hunter New England and Central coast regions were among the first in NSW to be covered when the Scheme commenced in 2016. Our firm has supported people with disability and their families in NDIS cases since the commencement of the scheme.
Our expert health lawyers can help you or a loved one to challenge decisions by the National Disability Insurance Agency (NDIA) – the body that oversee the Scheme – as well as making complaints or taking action over poor support by NDIS providers. Our free NDIS e-book also has some good information.
If you or a loved one require help with an NDIS matter, do not hesitate to talk to one of our caring, expert, health lawyers about the options available to you. Simply call 1800 874 949 or fill in the form below, and we will be in touch.