By Naomi Brodie, Associate

The NDIS Quality and Safeguards Commission was recently established and commenced operations on 1 July 2018, following the amendments to the National Disability Insurance Scheme Act 2013 (Cth) by the passage of the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (Cth), on 4 December 2017.

The Commission was announced in the 2017-18 Budget with an initial allocation of $209 million over four years, to implement the NDIS Quality and Safeguarding Framework released by the COAG Disability Reform Council back in February 2017.

The rollout of the NDIS, which was first launched in 2013, has seen a fundamental change to the way in which supports for people with disability are funded and delivered across Australia.

A key component of the scheme is to implement a nationally consistent approach to quality and safeguards, as contemplated by the NDIS Quality and Safeguarding Framework, to improve consistency in the registration and regulation of providers and promote high quality supports and a safe environment for all those receiving NDIS funded services (known as ‘participants’). This is intended to assist, empower and support participants to exercise choice and control with respect to their services in the new market environment. The Commission is designed with these objectives in mind, and aims to fully implement a national quality and safeguards system by mid-2020.

Increase in Service Providers

The number of organisations providing services under the NDIS continues to increase. This is despite ongoing concerns reported about the pricing model not being sufficient to cover service costs and the challenges to long term sustainability facing service providers operating in the market, particularly not-for-profits. The National Disability Insurance Agency (NDIA) has previously reported that the number of registered providers almost tripled during the period from September 2016 to September 2017, from 3,696 to 10,507. There are now approximately 16,755 registered providers operating in the market according to the figures recorded as at June 2018 in the COAG Disability Reform Council Quarterly Report, representing a 17 per cent increase on the previous quarter.

The number of service providers operating in the market is expected to increase over the coming years in response to participant demand. While the recent COAG Disability Reform Council Quarterly Report indicates that there are approximately 183,965 participants in the scheme as at 30 June 2018, there is an estimated 460,000 participants expected to be seeking services under the NDIS once it is fully rolled out, by mid-2020.

Service providers should now be taking stock of the recent legislative changes and the current and future impact on their operations.

The Commission’s key regulatory functions and responsibilities

The Commission’s core functions and framework is set out in Chapter 6A of the National Disability Insurance Scheme Act 2013 (Cth).The Commission is responsible for a range of functions under the National Quality and Safeguarding Framework, aimed at protecting and preventing harm to people with disability in the NDIS market. The Commission’s role is to serve as the regulator of the NDIS market, with key functions including:

• a National Registrar responsible for registering providers and monitoring their compliance with registration and other requirements, including the new NDIS Code of Conduct and Practice Standards;
• handling and responding to complaints about the quality and safety of NDIS supports and services, and reportable incidents, including abuse and neglect of NDIS participants;
• monitoring the use of restrictive practices within the NDIS, with the aim of reducing and eliminating such practices;
• to design and implement a nationally consistent NDIS worker screening process; and
• education, capacity building and development for people with disability, NDIS providers and their workers, including providing guidance and best practice information to NDIS providers on how to comply with their registration responsibilities.

The NDIA will continue to be responsible for the registration and regulation of NDIS providers until the Commission commences operating in each jurisdiction, at which time the NDIA’s responsibilities will be limited to:

• the delivery of the NDIS, including providing individualised support plans to people with disability, coordinating service bookings, payments and access to plans for providers; and
• handling complaints about the NDIA itself and participant plans.

A phased roll out

On 1 July 2018 the Commission began operating in New South Wales and South Australia, and will progressively roll out in other States and Territories over the next two years. The Commission is set to commence operations from 1 July 2019 in the NT, ACT, QLD, VIC and Tasmania, and from 1 July 2020 in WA.

What does this mean for service providers now?

The arrangements currently in place with respect to quality and safeguarding continue to apply in each State and Territory until the Commission begins operating in their individual relevant jurisdiction.

Now is the time for all current NDIS providers and organisations considering entry into the market, particularly in NSW and SA where the Commission has commenced operations, to become familiar with the various changes and new requirements that have been introduced alongside the commencement of the Commission on 1 July 2018. These reforms are detailed in a raft of 14 new NDIS Rules and Guidelines, made by the NDIS Quality and Safeguards Commissioner.

These recent legislative reforms include:

• a national provider registration system;
• NDIS Practice Standards and NDIS Code of Conduct – applying to providers and their workers;
• a new national worker screening system;
• a new complaints management and resolution system;
• new incident management requirements, including the obligation for registered providers to report to the Commission on reportable incidents including the death of a participant, serious injury, abuse and neglect, sexual misconduct and the unauthorised use of a restrictive practice; and
• new behaviour support requirements, with a view to reducing and eliminating restrictive practices. 

Enforcement powers

Providers operating in this market should also be aware of the Commission’s wide range of enforcement powers under the National Disability Insurance Scheme Act 2013 (Cth). These powers include the ability to:

• monitor provider performance and undertake investigations;
• issue compliance notices, if the Commissioner is satisfied or is aware of information suggesting that a provider is non-compliant with their obligations and requires a provider to take certain action or refrain from certain action to address the non-compliance or possible non-compliance;
• issue banning orders, prohibiting or restricting specified activities by a provider in certain circumstances;
• deregister non-compliant providers;
• enter into enforceable undertakings;
• seek injunctions;
• issue infringement notices; and
• seek the application of civil penalties.

As the Commission ramps up its regulatory and enforcement capabilities, it is important that providers are familiar with their ongoing obligations and responsibilities under the new regime. Current providers of supports and services under the NDIS and those looking to enter the market should be mindful of the registration requirements and ongoing obligations set out in the various NDIS Rules and Guidelines, the timeframes for these changes taking effect and the scope of the Commission’s regulatory powers.

Now is the time to consider the impact of the phased roll out of the Commission on your organisation. This includes considering what policy and operational changes may need to be implemented to ensure ongoing compliance with your obligations, as well as ensuring that standards of care for those to whom you are delivering services are in line with the new regime.