NDIS Bill passes through Parliament

Published: 23 August 2024

The NDIS Bill passed both Houses on 22 August, following two weeks of debate and amendment in the upper house. More amendments were moved in response to stakeholder feedback to strengthen the Bill’s protections and require additional consultation with states and territories on key NDIS Rules.

The major architecture of the Bill remains the same, introducing changes to the NDIS Act including:

Providing for a new assessment process for gaining entry into the NDIS by way of the two eligibility streams of the NDIS — early intervention requirements, and disability requirements, or both.

Creating a new definition of disability supports, to clarify the scope of valid supports appropriately funded under the NDIS. This includes a definition of ‘NDIS Supports’ that will include both permitted and prohibited supports, which will exist as a formal NDIS Rule, which will be developed in the future in consultation with the sector and states and territories. In the meantime, a temporary list will apply, which OTA has recently made a submission on.

Makes changes to NDIS plans, allowing them to be longer and removing prescriptive line-by-lie lists of supports (except a category of ‘stated supports’ like capital supports). It also gives more powers to the NDIS to intervene and manage a plan where they believe a participant or delegate is unable to do so.

Moves away from ‘reasonable and necessary’ supports, and instead proposed a ‘reasonable and necessary budget’ that will be determined following a new needs assessment process that a participant will undergo, which inform a participant’s plan. This includes the power for the NDIA to require a needs re-assessment if it believe a participants’ circumstances have changed. The detail on what the needs assessment process will involved with be set out in NDIS Rules.

Allowing the NDIS CEO to request additional information from a participant (including assessments) if they are considering revoking a participants scheme access (with some protections).

Sets out the manner in which an existing NDIS participant will transition from an old plan to a new plan framework.

OTA had significant concerns about the Bill, including that it makes major changes to the scheme which allows the NDIA to divert participants to an early intervention pathway, or off the Scheme, without clarity on what services and supports may be available outside the NDIS, including Foundational Supports which are yet to be announced.

OTA also had concerns that the Bill allows for key details (such as defined NDIS supports, and the new needs assessment process) to be set out in NDIS Rules, that will be created outside of parliamentary process.

OTA highlighted our concerns in two submissions to the Senate Community Affairs Legislation Committee, which led two inquiries into the Bill, and during our attendance at a public hearing on the BiIl in late May.

Late last week AHPA met with the Greens and wrote to the Opposition, calling for them to not pass the Bill, and urging them to work with the disability sector and peak bodies including OTA to improve the Bill.

Once the Bill receives Royal Assent, parts of the new legislation will take effect in 28 days, with other sections taking effect in coming months and years. Government has advised that the changes will be implemented over time, with people moving onto new plans in tranches over the next few years.

You can read the Bill here.

While OTA is deeply disappointed that the Bill has passed, we will continue to seek to influence the Bill’s implementation including pushing for information for the sector on what is changing, and when, and working to influence the design of the NDIS Rules, to ensure that they are fit for purpose and provide adequate supports for participants including full access to the OT scope of practice.

Advice from NDIA: 26 August 2024

OTA received the following information from NDIA to share with our networks regarding the NDIS Bill:

"The passage of the Bill means there will be changes in the coming weeks once the laws come into effect. Until then:

all access and planning processes, decisions and supports will continue in line with current operational guidance
participants should continue spending in accordance with their plans and existing operational guidance
providers should continue to claim for supports in line with current operational guidance.

More information about the amendments is available on the NDIS website. The website will be updated in the coming weeks to further explain what the changes mean and when they will come into effect".

Further information will be provided to members as our government and stakeholder relations team continue to analyse these developments.