Overview

Our principal activities include:

• registration of NDIS providers
• regulation of both registered NDIS providers and unregistered NDIS providers
• behaviour support
• complaints
• reportable incidents
• compliance and enforcement
• market oversight
• partnering with external entities
• communications and engagement.

Registration

We register NDIS providers to deliver safe, quality supports and services to NDIS participants. NDIS providers must be registered if they wish to deliver supports and services to participants whose plans are managed by the NDIA. NDIS providers must also be registered to deliver certain support types to any participant, and this includes specialist disability accommodation, specialist behaviour support services, and implementing regulated restrictive practices. Our registration process is proportionate to the risk and complexity of supports being delivered to participants and the size and scope of the provider. The process involves:

• completion of an application and self- assessment by the provider
• an independent audit by an approved quality auditor against the NDIS Practice Standards that apply for the supports being delivered
• an assessment by the NDIS Commission of the suitability of the applicant provider and its key personnel to provide supports and services to NDIS participants.

Our NDIS Approved Quality Auditor Scheme establishes third party audit arrangements that providers must use to undertake a review of their practice against relevant NDIS Practice Standards. Auditing firms approved by the NDIS Commission under the scheme are accredited with JAS-ANZ, an internationally recognised accreditor of auditing firms. Individual auditors complete training provided by the NDIS Commission.

NDIS providers registered with the NDIS Commission must:

• comply with the conditions of registration prescribed through various Rules and stated on their certificate of registration
• comply with the NDIS Practice Standards applicable to the types of services and supports they are registered to deliver
• comply with the NDIS Code of Conduct
• have a complaints management and resolution system
• have an incident management system
• report certain incidents (including allegations) to the NDIS Commission
• fulfil national worker screening requirements
• meet behaviour support requirements, including reporting the use of restrictive practices to the NDIS Commission if applicable.

We monitor registered NDIS providers’ compliance with these obligations.

This activity helps provide assurance to the NDIS Commission that the NDIS providers we register are suitable and competent to provide safe, quality supports and services to NDIS participants, and ensures they can support us in undertaking our NDIS market oversight responsibilities.

Regulating unregistered providers

In addition to overseeing registered NDIS providers, we also regulate providers that deliver NDIS supports and services and are not required to be registered. NDIS participants may use unregistered providers if their plan is not managed by the NDIA (for example, if they self-manage or have a plan manager to assist them), except where the services consist of providing specialist disability accommodation, using regulated restrictive practices, or undertaking a behaviour support assessment or developing behaviour support plans for participants.

While unregistered providers do not have to comply with conditions of registration, we still regulate them through:

• the requirement that all NDIS providers comply with the NDIS Code of Conduct
• supporting participants who wish to complain directly to an unregistered provider
• receiving and acting on complaints made about an unregistered provider, or a person employed or otherwise engaged by the provider, including taking further action where a complaint raises a compliance issue.

This activity plays an important role in giving all NDIS participants the ability to make complaints about the NDIS supports and services they receive, and allows for action to be taken if those supports and services do not meet the expectations of quality and safety set out in the NDIS Code of Conduct

Behaviour support

We oversee the use of behaviour support strategies and restrictive practices. This involves:

• developing and maintaining the Positive Behaviour Support Capability Framework (the framework) to help ensure practitioners deliver high quality behaviour supports
• assessing the suitability of behaviour support providers and practitioners against the framework
• undertaking random audits on the quality of behaviour support plans that are lodged with the Commission
• providing best practice guidance and advice to practitioners, providers, participants, families, and carers
• receiving, reviewing and analysing provider reports on the use of restrictive practices
• responding to the unauthorised use of restrictive practices
• reporting on the level of use of restrictive practices
• undertaking research to inform better practice.

We work with practitioners and providers to implement strategies designed to help reduce the occurrence and impact of behaviours of concern, and reduce and eliminate the use of restrictive practices. This activity helps to improve the capability of the sector through research and education to share best-practice advice with practitioners, providers, and participants, their families, and their carers.

Reportable incidents

We receive reports of certain incidents involving NDIS participants that occur in connection with the delivery of NDIS supports and services. This involves:

• overseeing the management of reportable incidents by registered NDIS providers and referring matters to other relevant authorities when appropriate
• where incidents identify potential or actual breaches, investigating and managing any requisite action
• requiring providers to take a variety of actions to respond to the incident, if we are not satisfied that appropriate actions have already been taken
• reviewing and sharing reportable incident data to identify systemic issues to be addressed, and driving improvement actions through NDIS provider reporting on reportable incidents and compliance activity.

We monitor registered providers’ compliance with their obligations to identify, report and respond to incidents, and we identify and act on incidents requiring a regulatory response. Our objective is to improve provider quality and safety processes, as well as capability in responding appropriately to incidents – including the use of restrictive practices

• where these are not authorised by state or territory authorising bodies, or where participants have no behaviour support plan in place.

The inclusion of unauthorised use of restrictive practices is designed to drive compliance by NDIS providers to have a behaviour support plan in place and seek to have restrictive practices authorised.

Complaints

We manage complaints in connection to the services delivered by NDIS providers. This involves:

• supporting NDIS participants to make a complaint to a provider about the quality of their supports and services
• taking complaints about NDIS supports and services and supporting complainants to resolve their issues through conciliation
• where complaints identify alleged breaches, investigating and managing complaints
• supporting people with disability and other complainants to go to other bodies where their complaint is not in scope of the Commission’s remit, and referring matters to other relevant authorities when appropriate
• analysing complaints data to identify systemic issues to be addressed through compliance activities
• reporting on the number, types, and causes of complaints and the outcomes of complaint- handling processes.

We respond to complaints about NDIS supports and services and have the powers necessary to take compliance action regarding breaches of the Code of Conduct or conditions of registration.

Complaints activity is a key element of our continuous monitoring of the quality and safety of the NDIS market. This activity also has an important role in assisting NDIS providers to adjust their practice when delivering NDIS supports and services and to continuously review and improve the quality of their supports and services in accordance with the Practice Standards.

Compliance and enforcement

We undertake compliance and enforcement activities. This involves:

• applying appropriate regulatory responses to non-compliance and/or emerging issues that require compliance monitoring
• determining registered NDIS provider compliance with conditions of registration, NDIS Practice Standards, the NDIS Code of Conduct and other applicable requirements and, where necessary, using influence or statutory tools to compel compliance
• establishing compliance programs that address areas of risk for various types, classes of supports or services, or certain obligations
• using information-gathering and other powers in response to apparent non-compliance
• taking protective action in serious cases of persistent and high-risk non-compliance.

If compliance cannot be secured through the above actions, we can remove an NDIS provider from the market.

We have a comprehensive range of compliance and enforcement powers, tools, and methods. These include the following actions:

• educating NDIS providers to understand their obligations and achieving ongoing compliance
• monitoring and investigating compliance with the NDIS Code of Conduct, the NDIS Practice Standards and other quality and safeguard requirements where they apply
• issuing compliance notices directing a provider to do, or refrain from doing, certain things
• entering into enforceable undertakings that commit a provider to specific action
• seeking injunctions from a court to compel a person to take, or refrain from taking, certain action
• issuing infringement notices
• seeking civil penalties through a court
• varying, suspending or revoking a provider’s registration
• making banning orders that prohibit or restrict specified activities by a provider, or a person employed or otherwise engaged by a provider.

Actions to be taken are determined on a case by case basis taking into consideration factors outlined in the NDIS Commission’s Compliance and Enforcement Policy, including the seriousness of the issue, the appropriateness of the provider’s or other person’s response, and the likelihood of further harm to NDIS participants.

This activity helps to prevent poor service delivery and to protect participants from harm. It also helps ensure public confidence in the NDIS and in services delivered by NDIS providers.

Market and regulatory oversight and risk

We identify, categorise, assess and manage systemic risks to protect people with disability from harm that arises from poor-quality or unsafe supports or services provided under the NDIS. This involves:

• identifying, monitoring and responding to intelligence on emerging risks based on a range of data sources, including compliance data, data collected through complaints, reportable incidents and restrictive practices reporting, and data collected through external stakeholders such as the NDIA, other regulators, and state and territory governments
• determining appropriate regulatory responses that are proportionate to the level of risk identified across the NDIS system
• monitoring changes in the NDIS market which may indicate emerging risk and service shortfalls in relation to the NDIS Commissioner’s functions.

This activity reduces regulatory risk that might lead to non-compliance, helps to ensure effective regulatory activities, and helps monitor the adequacy of supports available in the marketplace

Partnering with external stakeholders and regulatory bodies

We partner with external stakeholders and other bodies to undertake key activities. This involves:

• building linkages between systems and stakeholders to help ensure effective and coordinated responses to issues
• sharing information with other bodies (such as child protection agencies and industry complaints bodies) to help ensure coordination of regulatory and other responses
• establishing information sharing arrangements with other government agencies, such as the Australian Health Practitioner Regulation Agency, the Australian Securities and Investments Commission, the Australian Competition and Consumer Commission and the Department of Health, to support us in improving the quality of supports.
• convening the Disability Sector Consultative Committee and the Industry Consultative Committee. The committees comprise senior sector and industry leaders brought together to provide advice to the NDIS Commission.

They represent, respectively: the interests and perspectives of NDIS participants and their support networks; and industry perspectives surrounding the ability of NDIS providers to deliver quality and safe supports and services in a regulated NDIS market.

This activity helps to ensure responses to issues are well coordinated and thoroughly informed by all relevant information, and that we interface seamlessly with broader protections and safeguards, such as state and territory worker screening units.

Education and communication

We build the capacity and capability of providers, workers and participants through a variety of communication activities. This includes:

• providing best-practice guides and training including publishing guidance materials with examples of good and poor practice
• delivering targeted education campaigns designed to build the capability of providers and behaviour support practitioners in identified focus areas
• delivering targeted engagement and communications campaigns to build the knowledge and awareness of participants, NDIS providers and behaviour support practitioners
• building provider capability to prevent and respond to serious incidents and complaints through education and engagement
• undertaking all communications in a manner that maximises accessibility and is mindful of the different communication needs and preferences of stakeholders
• ensuring providers have access to specialist expertise, guidance, and educational resources to support best-practice approaches to positive behaviour support.

This activity helps to ensure providers are well- informed about their obligations and about any changes in policy or practice, that participants understand their rights and ability to complain, and that the role, regulatory function, and powers of the NDIS Commission are understood.