Clickbait clouds vital reform concerns

Governments of all political stripes are quick to identify a fall-guy when one of their policies hits the wall.

We’ve seen ‘dole-bludgers’, ‘lifters and leaners’, and ‘greedy’ aged care providers.  Now, with systemic failures in the National Disablity Insurance Scheme becoming evident, the targets are ‘dodgt operators’ and ‘parasitic’ plan managers.

In August 2022, the then chief of the Australian Crime Intelligence Commission, Michael Phelan, claimed that as much as $6 billion a year (between 15 and 20 percent of the NDIS budget) was being misused.  Since then, there’s been plenty of rhetoric from NDIS Minister Bill Shorten and the media about cost blowouts, allegedly due to rampant provider fraud.

Is there really that much fraud?

No level of fraud is acceptable, but there’s a dramatic discrepancy between the National Disability Insurance Agency’s October 2023 numbers and the $6 billion suggested by Mr Phelan.  The NDIA  data showed only $356.5 million in NDIS payments were under investigation, with active fraud cases estimated at just $35 million (0.087 percent of the 2023-24 NDIS budget) and only 18 NDIS prosecutions in progress with an alleged fraud value of $18.3 million (0.045 percent of the 2023-24 NDIS budget).

Mr Phelan now heads the NDIS Quality & Safeguards Commission with a mandate to “lead the fight against dodgy operators”.

It’s hard not to see his appointment as a somewhat cynical move, and certainly a disraction from its purpose of regulating the NDIS provider sector for quality and safety during a time of significant, ongoing reform.  Speaking of reform, following the NDIS review recommendations, Mr Shorten’s recent Bill to reform the NDIS has sparked considerable debate across the country.  Aimed at cutting $14.4 billion in growth over the next five years, the Getting the NDIS Back on Track No.1 Bill 2024 effectively reintroduces some of the controversial elements from the previous (Coalition) government’s overhaul.

While the sector broadly supports the NDIS Review recommendations, there are significant concerns about the Bill’s potential impact on participants, particularly given the lack of access to draft rules and transparency.  The government must address several key considerations.

First, the proposed power of the NDIA to specify whether a person enters the NDIS under the disability impairment or early intervention criteria (or both) will play a crucial role in determining supports.  Transparent, fair, and sectorconsulted criteria are essential for these critical eligibility decisions.

Additionally, for those who don’t make the cut, the legislation needs to clearly articulate which supports fall under Commonwealth jurisdiction via the NDIS and which are the responsibility of state and territory governments.

The Bill’s proposal to use assessments to evaluate participants’ support needs, using tools determined by the minister, raises significant concerns.  Previous proposals for independant assessments faced criticism for their one-size-fits-all approach, lack of specialised assessor skills, and cultural competency issues.

The Bill does not clarify the recourse available to participants if they disagree with the outcome of a needs assessment.  A transparent and accessible process for challenging assessments is critical to ensure they accurately reflect participants’ needs and cicumstances.

Furthermore, genuine co-design with the disability community in developing the needs assessment process is crucial to create a fair, inclusive, and responsive assessment process.  The Bill grants the minister significant power to make rules and determinations without parlimentary approval.

While these delegated legislations are essential for implementing proposed reforms, clear guidelines are needed to ensure transparency and accountability in developing these rules.

Additionally, changes to the NDIA chief executive’s power to vary a participant’s plan require clearer limits to ensure appropriate use.

These reforms, if passed, present significant operational, financial, and regulatory challenges for NDIS-registered providers.

The changes will require substantial adjustments in operations but also offer an opportunity for providers to innovate and enhance their service delivery to better meet the needs of NDIS participants.  However, while safeguarding the integrity and financial sustainability of the NDIS from fraud is legitimate, it is both unhelpful and damaging to turn an entire sector into some kind of whipping boy to further that agenda, particularly in the context of such a huge reform program.

The Australian public, the NDIS and people with disability deserve and expect a sound and sensible policy developed in a way that is not reactive or politicised.

That is, we need less clickbait and mroe thoughtfulness from both governments and media if the NDIS is to survive and thrive.

Amber Crosthwaite is a commercial lawyer specialising in seniors living, aged care and disability.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.