The new NDIS Bill [Part 1]

What's changing

The introduction of new needs assessments and longer, more flexible funding packages
A definition of ‘NDIS support’ that changes planning
Plan lengths and plan periods
Increased plan flexibility
New powers to monitor and modify plans for participants who over- or under-spend their plan
Changes to access
Alternative commissioning

This week we cover:

Needs assessments
The definition of NDIS supports
Plan lengths and periods

Tune in next week for our coverage of the other topics. This is pretty complex reading, so I’ve sprinkled in cat memes.

Let’s dive into the detail.

Is the Bill law?

To become law, the Bill would need to pass the Senate. The Bill has been referred to the Community Affairs Legislation Committee, which will table a report on 20^th June 2024. It is possible they will recommend amendments. After that the Bill, with any amendments, will be voted on in parliament. If it passes both houses of parliament, it will become law.

Planning process

How does the Bill change planning?

The Bill will change the existing line-by-line planning process. Previously, planners/ Local Area Coordinators would read countless expensive reports and assess the need for each individual support against the legislation in section 34(1) - the reasonable and necessary criteria. They would then put a dollar amount next to each support category and create total funding amounts for Core, Capacity Building and Capital.

Going forward, budgets will be created using yet-to-be-determined needs assessments completed by a yet-to-be-disclosed human/ professional and calculated into a dollar figure using a yet-to-be-determined method. The outcome will be called a ‘reasonable and necessary budget.’ The Explanatory Memorandum says the needs assessment will be co-designed and the method to arrive at the dollar amount will be developed through consultation.

What is a new framework plan?

You might have heard the term ‘new framework plan’ thrown around in relation to the Bill. It’s not immediately clear from the Bill what this means. But the Explanatory Memorandum says all participants will, in time, get a new framework plan. These will presumably be plans designed through the new planning process. This will happen by class of participant (another undefined term). Fortunately, a person will be informed by the NDIA if they have a new framework plan by a “notice of transition”. People who haven’t been informed they have new framework plans – people with plans built under the current NDIS Act - will have ‘old framework plans’. There will be a legislative instrument – or Rules - that will further explain how new framework plans will roll out.

If you’re unsure whether powers in the new bill apply to old and/ or new framework plans, I’ve developed an equation:
a complicated formula made up of anxious symbols dancing across the page. But there are changes coming to both old and new framework plans, so grab chocolate and settle in.

Will budgets be flexible?

Under new framework plans, a person will receive a flexible budget and a fixed budget. These changes aim to dissolve the rigid categories within a budget. For example, a person with plan-managed Core consumables funding can’t currently use it on a Capacity Building support such as physiotherapy. Under the Bill, it is expected that flexibility will be extended. There’ll be limits and exceptions though. The NDIA could restrict flexibility where there’s risk of harm to the person or if the support is a stated support (more on this next week).

What is an NDIS support?

This Bill creates a definition of an NDIS support. Section 10 has far reaching consequences in NDIS 2.0. It will shape: how the Agency arrives at a funding amount; how people can spend their packages; whether the NDIS can alter management types or funding periods; and who can access the Scheme.

‘Section 10(a) says “a support is an NDIS support for a person who is a participant or prospective participant if:
(a) the support:
(i) is necessary to support the person to live and be included in the community, and to prevent isolation or segregation of the person from the community; or
(ii) will facilitate personal mobility of the person in the manner and at the time of the person’s choice; or
(iii) is a mobility aid or device, or assistive technology, live assistance or intermediaries that will facilitate personal mobility of the person; or
(iv) is a health service that the person needs because of the person’s impairment or because of the interaction of the person’s impairment with various barriers; or
(v) is a habilitation or rehabilitation service; or
(vi) is a service that will assist the person to access a support covered by subparagraph (iv) or (v); or
(vii) will minimise the prospects of the person acquiring a further impairment or prevent the person from acquiring a further impairment; or
(viii) is provided by way of sickness benefits […]”;

What Rules will clarify Section 10?

Rules are a legislative instrument under an Act that put meat on the bones of legislation – they give the deets about how the law should work in practice. Section 10(b) and 10(c) promise to-be-designed Rules that could further clarify NDIS funding and how plans can be spent. They will do this by creating a list of “in” and “out” supports that can or can’t be funded or purchased by a person or “class of persons”.

Examples in the Explanatory Memorandum include things like ‘online gambling’, ‘perfume’, ‘standard household appliance and white goods’- which will not qualify as NDIS supports. The Explanatory Memorandum is not legislation, but it does give us a hint about the intentions of the federal government. What items make it into the Rules depends also on the States and Territories, who need to all agree on the Rules before they are passed. Until the Rules are created, the Applied Principles and Tables of Support (APTOS) will be legislated to name what is most appropriately funded by the NDIS.

Why is Section 10 critical to get right?

Because s10 reaches into planning, access, and spending, this section needs to be solid. Yet PIAC, in their brilliant explainer, note the wobbly connection between s10 and human rights law, “These [criteria in s10] are based on selected elements in the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’). However, by leaving out other elements of the CRPD, the Bill may exclude some supports from NDIS funding”.

For example, the language found in Article 12 of the CRPD on equal recognition before the law, and Article 19 about choosing who someone lives with or where they live, doesn’t feature in s10. Moreover, if the s10 criteria govern how NDIS participants can spend their funding, the criteria need to be broad enough to allow creativity and flexibility.

Others have noted tensions within s10. In a recent DSC webinar, Dr. Darren O’Donovan observed that ‘rehabilitation’, for example, has been named in the APTOS as a state and territory responsibility (and not a NDIS one). Yet rehabilitation is named as an ‘NDIS support’ in s10(a)(v). So, can it be funded?

Plan Lengths and Increments

How long will plans be?

The Agency will be able to build plans as long as 5 years. Funds will be released in periods, meaning a person won’t get access to all 5 years’ worth of funding at once. In theory, the increased plan length reduces the need for people to drain themselves and precious funds on the assessment-reassessment treadmill. Funding periods also aim to reduce plans being emptied and topped up before they end- a fancy concept they call intra-plan inflation.

How will funding periods work?

As a default, the NDIS can make 12 months’ worth of funds available at a time. This will be shorter for people the Agency deem at risk. If funds aren’t spent by the end of the period (e.g. the 12 month mark), these funds will “roll over” to the next 12 months. But surplus funds at the end of a plan will not carry over to the next plan.

More resources

That’s all for now folks. Next week we’ll cover:

New powers in the bill to monitor and modify plans for participants who over- or under-spend their plan
Changes to Access
Reviewable decisions
Alternative commissioning

The deadline for submissions to the Senate Inquiry have been extended – they close on 17 ^th May 2024.

I am not a lawyer. This is not legal advice and should not be relied on as such. This analysis of publicly available information relates to a Bill that could, within weeks, be amended. The information is current as at the 30^th April 2024. Seek legal advice as to how it relates to your situation.

If you’re hungry for deets now, check out:

Thanks is owed to Dr Darren O’Donovan for guiding us through this legislation. Mistakes here are mine alone.