What does regulation look like now?
Since the National Disability Insurance Scheme (NDIS) was established in 2013, its workforce has been made up of both registered and unregistered providers.
The NDIS Review released its Final Report on 7 December 2023, with a recommendation to create a regulation scheme for NDIS service providers based on the level of risk perceived in delivering disability services and supports, with six associated actions to support the proposed scheme.
According to the Final Report, there were 16,000 registered providers and an estimated 154,000+ unregistered providers operating in the NDIS market during the 2023 financial year. There is currently little to no visibility of unregistered providers so the number operating is likely to be even higher.
At present, providers have regulatory requirements based on how a NDIS plan is financially managed. This can lead to a participant using unregistered providers for high-risk supports with little regulatory oversight, and therefore, few measures for the prevention of harm to participants.
What do we know about the proposed registration scheme?
The NDIS Review Panel proposes what they’ve called a ‘risk-proportionate model for the visibility and regulation of all providers and workers’ under Recommendation 17. This means some providers may be required to undertake additional measures for visibility and regulation based on the level of risk perceived in delivering a particular disability service and support.
The Panel believes this will enable greater visibility and scrutiny of providers and will drive improvements in the quality and safety of services and supports accessed by NDIS participants. As the Panel themselves explained:
“We are proposing greater use of preventative measures applied to all providers and participants to make the system work better for everyone and prevent harm to those most at risk. We need to strike a better balance between preventing harm, supporting choice and control, encouraging innovation and enabling the market to thrive.”
What does the proposed registration scheme mean for participants?
There will be four levels of registration under the proposed scheme, with a key difference between the levels being how Practice Standards are applied to the provider. NDIS Practice Standards set out the requirements for the standard of service that a provider must provide to become, and remain, a registered provider.
The four levels of registration are:
- Advanced registration risk for all high-risk supports – this will involve more intensive regulatory requirements and oversight. For example, this will be for providers of potentially high-risk supports like daily living supports in a formal closed setting like a group home, The reason this is the highest risk category is because it covers the provision of intimate 1:1 support e.g., overnight or daytime support to a person with disability to shower and toilet.
- General registration for all medium-risk supports – this will impact providers delivering supports perceived to be medium-risk by the Panel. For example, supports that require additional training like administering injections. It will also apply to supports involving significant 1:1 contact with people with disability.
- Basic registration for all lower-risk supports – this will involve lighter-touch registration requirements, while still allowing for oversight against Practice Standards, when required. This will include sole traders and smaller organisations, who provide supports such as social and community participation. It will also include supports involving limited 1:1 contact with people with disability.
- Enrolment of all providers of lowest-risk supports, this will provide full visibility of providers in the market by applying the lightest-touch requirements through a simple online process. This will include supports where general protections are available under Australian Consumer Law, e.g. services that sell consumables, equipment, technology, and home and vehicle modification.
Registered and enrolled providers would be subject to the NDIS Code of Conduct, NDIS Worker Screening and complaints processes.
What are the benefits of the proposed registration scheme?
For participants, the benefits are greater oversight of how services operate and improved safety for those accessing providers’ services. The Disability Royal Commission acknowledged the risks posed by limited regulation and oversight of unregistered providers. In Volume 10, (Disability Services), the final report states that the South Australian Safeguarding Task Force expressed the view that the NDIS Quality and Safeguards Commission does not adequately address risks of unregistered provider use, especially for people with disability at risk of violence, abuse, neglect or exploitation.
For people with disability who do not make their own decisions, or who are not supported to make decisions, the choice to use a registered provider who is subject to stricter regulation and oversight may not be offered.
What are the concerns about the registration scheme?
Some people with disability are concerned that the proposed registration scheme will limit the choice and control over participants’ ability to continue using known and trusted unregistered providers, spelling the end of self-managed NDIS participants. This would include providers who support the additional needs of groups people with disability, like people who are culturally and linguistically diverse (CALD).
Under the NDIS Review’s proposal for all providers to be registered, registration may be a costly and a lengthy deterrent for currently unregistered providers. This may lead to a significant loss of trusted providers from the market, including those who support people with diverse and additional needs.
It is also unclear how enrolment will work for mainstream retailers providing consumables to be subject to worker screening requirements. PWDA has concerns that this will lead to barriers in getting the best value for money and do little to eliminate the “NDIS tax” many participants face when trying to access mainstream services as a participant.
All this change will create more work for the regulator, and the NDIS Review has proposed expanding the responsibilities of the current regulator, the NDIS Quality and Safeguards Commission, to become the National Disability Supports Quality and Safeguards Commission. The new Commission, alongside the Department of Social Services, will be responsible for the design and implementation of the registration scheme. The Commission needs to be adequately resourced to meet additional demands proposed by the Review. This will require substantial funding to ensure appropriate resourcing.
What other safeguarding measures were proposed? What was missed?
PWDA welcomes Recommendation 18’s focus on reducing and eliminating restrictive practices. However, more actions that tackle the root causes behind restrictive practices, and proactive steps and strategies to reduce and prevent their use, were needed.
The NDIS Review also missed an opportunity to make a strong recommendation for all Australian governments to implement their obligations under the Optional Protocol to the Convention Against Torture (OPCAT) which would have enabled unannounced inspections in closed settings, including group homes, delivered by NDIS service providers. The Disability Royal Commission Final Report did include a recommendation for adding key aspects of OPCAT into legislation (Recommendation 11.6).
The devil will be in the detail.
People with disability and their representative organisations need to be involved in the design and testing of ideas, especially for the proposed registration scheme.
PWDA will keep our members updated on developments relating to the proposed NDIS registration scheme.
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