The Independent Review (the Review) of the National Disability Insurance Scheme (NDIS) was commissioned by the Commonwealth Government in October 2022.  

The Review examined the accessibility and efficacy of the NDIS, for both participants and providers. It examined how easy it is for people with disabilities to access the scheme, the quality of services provided, and the sustainability of the scheme. 

The Review sought to improve the experience of participants navigating the scheme, ensure better outcomes for participants and maintain financial sustainability of the NDIS. It also looked at the way in which the NDIS interacts with other supports and services available to people with disability. 

In 2023 Occupational Therapy Australia (OTA) made five submissions to the Review. OTA's views were quoted more than a dozen times in the Review Panel's final report and supporting analysis. 

In October 2023 the NDIS Review Panel provided their final report to the Government, and the report was made public in December 2023.  OTA is continuing to engage with the Review and has made further submissions to the NDIS Pricing Review and Provider and Worker Registration Taskforce since the report was published. 

The report included 26 recommendations and 139 supporting actions. The recommendations seek to improve NDIS processes, change access pathways, build a better disability ecosystem, and implement changes for providers. 

Some of the recommendations that may affect the provision of occupational therapy (OT) services include: 

• A new approach to assessing eligibility based on functional capacity. 

• Revised assessment process and flexible budgets. 

• Improved supports to help participants to navigate the system.  

• Revised assessment, budget, and entry approach for early childhood (including foundational supports). 

• Introduction of ‘foundational supports’ (supports for people who do not qualify for the NDIS). 

• Increasing accessibility in mainstream services and the community and improving the connection between mainstream services and the NDIS. 

• New pricing and payments framework and an independent pricing body. 

• Mandatory registration for providers. 

It is customary for the Government to respond to reviews before introducing legislative changes. In this instance, the Government has yet to provide a response to the final report. A Government response will likely be announced in the latter part of 2024. 

Despite this the reform is moving ahead; the first NDIS Bill has been introduced. The NDIA and Department of Social Services have also been charged with implementing some of the changes outlined in the Bill, with the expectation that NDIS Rules will be developed following legislative passage to provide further clarification and detail. 

OTA recognises the importance of engaging in this process and will continue to do so. However, we have raised our concerns with the Government about the lack of clarity regarding the Government's overall approach to NDIS reform. Our concerns include uncertainties about the number of individuals who may be diverted into early intervention pathways or onto foundational supports. OTA will continue to actively advocate for transparency and ensure that key changes affecting participants' access undergo national parliamentary scrutiny. 

The Bill offers a framework to advance recommendations from the NDIS Review and provide clarity on existing legislation.  

Given the lack of a government response to the Review’s final report, the Government's policy intent regarding the outcomes of the Bill is not yet clear. Uncertainties also remain regarding other legislative changes anticipated in the second half of 2024 and 2025.  

OTA is concerned about potential changes to the assessment process and the definition of NDIS support, which could significantly affect the role of occupational therapists and outcomes for participants. These changes could impact on the delivery of certain supports and prescriptions. We are also concerned about the possibility of increased administrative burdens under new mandatory registration requirements. 

The amendments in the Bill lay the foundation to give effect to recommendations from the Review relating to: 

• Participant access 

• New needs assessments 

• Flexible budgets 

• New pathways which will enable early intervention for certain participant cohorts 

• Strengthening some NDIS Commissioning Powers. 

There are several recommendations of most relevance to the occupational therapy profession. These can be broken down into several themes including: 

Better NDIS Processes: 

• Review Action 3.1: A new approach to assessing eligibility based on functional capacity. 

• Review Actions 3.3 and 3.4: Revised assessment process referred to as a ‘needs assessment’ and flexible budgets that see the end of line-by-line budgets.  

• Recommendations 4: Better supports for participants to navigate the system, including general and specialist navigators. 

Different Access Pathways: 

• Recommendation 6: Revised assessment, budget and entry approach for early childhood, including foundational supports, and a lead practitioner role.   

• Recommendation 9: A new approach for psychosocial disability including an early intervention pathway and foundational supports.  

Building a better disability ecosystem: 

• Recommendation 1: The introduction of foundational supports.  

• Recommendation 2: Increased accessibility in mainstream services and the community and improved connection between mainstream services and the NDIS.   

Changes for providers: 

• Recommendation 11: A new pricing and payment framework and an independent pricing body.   

• Recommendation 17: Mandatory registration for providers.   

OTA has highlighted several key issues regarding the proposed NDIS Bill. Firstly, there are concerns about the lack of transparency surrounding the legislative changes, which may impact the understanding of the amendments upfront. Secondly, OTA is worried that these changes could lead to limited access to crucial occupational therapy supports within the NDIS, potentially reducing participants' choice and control over their services. 

Furthermore, OTA is advocating for: 

• Data and modelling on the impact of diverting individuals into early intervention. 

• Changes to assessment and reassessment processes to ensure they are conducted by skilled assessors, minimizing the risk of re-traumatization or denial of NDIS services. 

• Utilising occupational therapy skills and expertise to maximize participant outcomes within the new framework. 

OTA emphasises the need for recognition of occupational therapy skills and expertise in any legislative amendments and is calling for continued engagement with allied health professionals to meet participants' needs effectively.  

Next steps for the Bill involve further review by a Senate committee, which is a positive development providing an opportunity for feedback and influence. The Committee is accepting submissions until 17 May 2024, OTA is preparing a submission for consideration. 

Once the Committee's report is tabled, the Bill will be debated, and amendments may be introduced. Both houses of Parliament must pass the Bill and any amendments before it goes to the Governor General for royal assent. The law will come into effect 28 days after royal assent, though the full impacts of the changes may not be immediately evident. Royal assent may not occur until early July or later, and the implementation of new rules enabled by the Bill will require additional time. 

The NDIS operates under a framework of rules, regulations, and guidelines, each serving specific functions within the Scheme. 

At the core are the NDIS Act and Rules, which establish the legal foundation and operational framework for the scheme. The Act outlines the objectives and principles guiding the NDIS, including eligibility criteria, plan preparation and review processes, provider registration requirements, and governance structures for the NDIA. If passed, the proposed Bill would become the amended Act.  

Under the Act, the Minister is empowered to make Rules, which provide detailed operational guidance on various aspects of the NDIS. These Rules must align with the objectives of the Act and ensure the financial sustainability of the Scheme. Additionally, certain Rules, categorised as Category A, require agreements between the Commonwealth and each jurisdiction before implementation. 

Complementing the Act and Rules are the NDIS Guidelines, which inform decision-making within the Scheme. These Guidelines, based on legislative provisions, offer clarity on considerations and processes for making NDIS-related decisions. 

The NDIA develops Operational Guidelines, which are policy documents detailing operational procedures and practices. Unlike legislation, Operational Guidelines are set by the NDIA and do not undergo parliamentary approval. 

Together, the NDIS Act, Rules, Guidelines, and Operational Guidelines form a comprehensive framework that guides the administration and delivery of supports and services under the National Disability Insurance Scheme. 

Decisions about access to the NDIS would focus on a person’s ‘functional impairment’ (how disability affects their daily life), rather than their medical diagnosis. Under the proposed changes in the Bill, the NDIA would also need to clearly tell people why they are allowed into the NDIS.  

These distinctions will be recorded in a person's ‘Statement of Participant Supports’, which would provide clarity on whether a person has met the eligibility criteria based on disability requirements, early intervention, or both.  

The proposed changes aim to help direct some people to other support services outside of the NDIS. They also aim to help tailor the support given based on the type of disability someone has. For example, children and people with psychosocial disabilities might be more likely to enter through the early intervention pathway. 

The Bill will also make the NDIS rules about who can get in clearer and will explain how they'll decide if someone meets the disability or early intervention requirements. 

In the long term, this law will make it easier to set up a separate pathway for early intervention, as recommended by the NDIS Review and enable early intervention to be handled differently from lifelong disability support.  

Changing the NDIS rules about access will need to be agreed upon by all state and territory governments. Once agreed, these rules will decide who's allowed into the NDIS and who should go through the early intervention pathway. However, these rules have not been written yet. The Bill simply creates the scaffolding for these rules to be made.

There is a new approach to needs assessment proposed in the Bill. Once eligibility has been established, supports will be determined via a needs assessment which will focus on evaluating various aspects of an individual’s functioning, including cognitive, language, socio-emotional, motor, and adaptive behaviour. It is proposed that the assessment considers how a person’s condition affects their abilities over time. 

The assessment would be undertaken by a ‘skilled Needs Assessor’ who would undertake a comprehensive needs assessment using a tool that is yet to be developed. This tool would assess the participant’s need for supports only in relation to impairments that meet the disability or early intervention requirements. The Government plans to consult with the sector, including allied health professionals, to develop this tool. 

The outcome of the needs assessment would inform the creation of ‘new framework plans’ under the proposed legislation, aligning with a new budget framework. Framework plans is the terminology being used to refer to plans made under the new legislation. These plans would be developed based on the determined needs and would result in a ‘reasonable and necessary budget’ for the participant’s support needs, as opposed to the current approach of a line by line budget. 

While much of the detail surrounding needs assessments is still under development, the Government has outlined plans to create the needs assessment tool through collaborative consultations with various stakeholders, including allied health professionals and occupational therapists in particular. There are inherent risks associated with the proposed approach, as its effectiveness will largely hinge upon the final tool's development, administration, and the expertise of the assessor involved. Notably, the current legislation does not explicitly stipulate that assessments must be conducted by allied health practitioners, such as occupational therapists, leaving room for both potential risks and opportunities for these professionals. OTA remains committed to advocating for the inclusion of occupational therapists in this critical aspect of the NDIS framework, both in its development and in its delivery. 

Framework plans, as proposed in the new NDIS legislation, are essentially blueprints for participants' support under the NDIS. These plans outline the specific supports and services a participant will receive, based on their individual needs and circumstances. 

In simpler terms, framework plans detail what kind of help a person will get from the NDIS, like assistance with daily activities, therapy, or specialised equipment. These plans are tailored to each individual, taking into account their unique requirements and goals. 

The transition to these new framework plans will be gradual, taking up to five years, and will occur by 'class' of participants (yet to be defined). Classes may be determined based on factors like age, location, and types of support needs. 

Yes, there will be changes to budgets if the Bill is passed in its current form. Funding under the NDIS will no longer be based solely on primary or secondary disabilities. Instead, participants will receive a more flexible funding arrangement that considers their overall needs. 

Under the proposed changes, participants will receive a single budget allocation, providing them with greater freedom to allocate funds according to their individual needs and preferences, rather than being restricted by specific line items. These budgets will also be set for longer periods, such as up to 5 years, with funds released periodically, potentially annually. 

The specific method for calculating these flexible funding allocations and budgets for new framework plans will be outlined in legislative instruments and NDIS rules (yet to be developed).  

Foundational supports are a proposed set of essential services for people with disabilities, aimed at helping them live independently and access necessary support.   

These services would operate separately from individual NDIS budgets and are intended to complement mainstream services like health and education.  

The proposal includes two types: general foundational supports, covering areas like information and peer support, and targeted foundational supports, tailored to individuals with specific needs such as home and community assistance or early childhood support.  

All levels of government are to fund and deliver these supports as part of a broader effort to create a more connected system of support for all people with disabilities. 

The groups most likely to be in receipt of foundational supports are those in early childhood and with psychosocial disability. Many of these supports do not currently exists, as they were often previously funded state programs that were progressively withdrawn by states when the NDIS came into being.  

As a result, substantial work needs to talk place to determine: 

• What foundational supports will look like 

• Who will deliver them 

• Who will be eligible   

• How will they be measured? 

• How will they be delivered? 

The States have agreed to fund these 50/50 with the Commonwealth, but the quantum of that funding has not yet been determined, nor is it clear which ministries in each state will be responsible for discharge of this funding.   

Currently the Federal Department of Social Services is responsible for developing a Foundational Supports Strategy. OTA has been engaging with the team developing the strategy.  

The concept of NDIS supports is new in this legislation and the Bill distinguishes between NDIS supports and stated supports. NDIS supports are what participants can access through their NDIS funding, and there is a degree of flexibility in how this funding can be spent. These are broader categories of support, intended to cover a wide range of needs to help participants live their lives more independently. However, under the proposed legislation, there would limits to what can be considered NDIS supports. For example, things like holidays, groceries, and cosmetic items are unlikely to be covered. The specific list of NDIS supports is yet to be determined and will be outlined in new NDIS Rules, which will require agreement from States and Territories, after the Bill is passed. 

On the other hand, stated supports are for specific high-cost items such as assistive technology, home modifications, and supported independent living. Funding for stated supports can only be used for the specific support it's allocated to, and not for any other purpose. The need for a stated support will be identified through the needs assessment. 

Occupational Therapists will need to ensure that the supports they provide align with the categories outlined in the NDIS supports and that any high-cost items they recommend fall under the stated supports category. These changes are unlikely to come into effect for some time as the Rules must be developed after the Bill is passed, and with agreement from all States and Territories.  

The Review calls for mandatory registration of providers. This Bill does not include any changes to provider registration; however, these have been flagged to come in a later Bill. A Registration Taskforce has been tasked with making recommendations on this issue to Government. OTA has provided a submission and will continue to advocate for streamlined regulation for occupational therapists, who are already AHPRA registered, which provides a high degree of consumer protection and avenues for complaint and redress. Many occupational therapists currently operate as unregistered providers, due to the cost and administrative barriers of registration requirements.  

OTA is advocating for Occupational Therapists under the NDIS by taking several key actions: 

Engagement and Consultation: OTA is engaging with key stakeholders, including the Senate Community Affairs Legislation Committee and Minister Shorten's advisors. We are also engaging in discussions with the NDIA and relevant government departments to advocate for the interests of occupational therapists. 

Submissions: OTA is preparing a comprehensive submission to the Senate Community Affairs Legislation Committee, highlighting our concerns and the needs of our members.  

National Reference Group Consultation: OTA is consulting with OTA’s National Reference Group to gather insights and perspectives from occupational therapists across the country, which will be reflected in our messages to Government, ensuring that the voices of our members are heard. 

Advocacy with Allied Health Sector: OTA is collaborating with AHPA (Allied Health Professions Association) to present a unified front and advocate for the interests of the allied health sector as a whole. 

Lobbying and Advocacy: OTA is lobbying individual MPs, particularly those in the crossbench and opposition, to address specific concerns related to occupational therapists under the NDIS. 

Participation in Taskforces and Advisory Groups: OTA is participating in relevant taskforces and advisory groups, such as the NDIS Registration Taskforce Advisory Working Group for Providers and Regulators, to contribute to the development of policies and regulations that affect Occupational Therapy practice under the NDIS. 

Foundational Supports Strategy: OTA is engaging with the Department of Social Services to influence the development of the Foundational Supports Strategy, ensuring that occupational therapists are considered and included in the support services provided outside the NDIS framework. 

Provider Support and Information: OTA will advocate for sufficient support and information to be provided to occupational therapy providers to help them adapt to any changes resulting from NDIS reforms. 

Through these efforts, we aim to ensure that occupational therapists are adequately represented, supported, and equipped to continue providing high-quality services to NDIS participants and their families amidst ongoing reforms and changes in the disability support landscape. 

• Raise your concerns with Senators and your local MPs using these key messages.

• Write to policy@otaus.com 

• Keep up to date via updates from OTA and other sources.