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Key matters 2019-20

The past year has been challenging, with a range of natural disasters and the COVID-19 pandemic, however the NDIS Commission managed to accomplish a wide range of activities.

Black Summer bushfires

In response to the bushfires that affected many communities around Australia in late 2019 and early 2020, the NDIS Commission:

  • communicated with NDIS providers to remind them they should contact the NDIS Commission if they were unable to continue to deliver services as a result of a bushfire, or had concerns regarding any of their usual reporting requirements
  • issued alerts to providers
  • established a protocol where NDIS providers affected by bushfires were able to lodge Reportable Incident notifications by telephone
  • worked with affected providers, and with the NDIA, to make any necessary interim arrangements to support them with their obligations.

COVID-19

The emergency response to COVID-19 was a priority for the NDIS Commission.

Key activities included:

  • establishing a COVID-19 response team led by the Registrar, Ms Samantha Taylor
  • issuing extensive material to NDIS providers between 7 February 2020 and 30 June 2020, to assist them in meeting their obligations to NDIS participants and in accessing resources from the Department of Health and state and territory health authorities
  • engaging in targeted compliance activities, to address issues identified through complaints and to assess provider preparedness to avoid and manage risk of infection
  • continuing to use and distribute our tools and resources to ensure that NDIS participant safety was paramount, critical supports were maintained, disruption and loss of continuity of supports was minimised, and changes in the NDIS market were monitored
  • providing support to staff and tailoring responses to individual circumstances such as adjusting working hours or attendance to reduce exposure to risks, approving appropriate leave, and/or agreeing to working-from-home arrangements
  • encouraging all staff to take reasonable care of their health, including appropriate monitoring and management.

Transition

From 1 July 2019, the NDIS Commission operated in seven of eight states and territories, with preparations underway for WA to transition to the NDIS Commission. On 21 May 2020, the Western Australian government announced that WA would be delaying the transition of NDIS quality and safeguarding functions to the NDIS Commission from 1 July 2020 until 1 December 2020. Existing quality and safeguarding regulatory arrangements in WA will remain in place until 30 November 2020.

Key activities included:

  • transitioning 11,486 providers who were previously registered with the NDIA in QLD, ACT, VIC, TAS, and the NT. This was in addition to the 9,703 providers that transitioned from NSW and SA on 1 July 2018. With some providers leaving the market and others joining, there were 17,253 registered providers as at 30 June 2020, up from the 8,302 providers that were registered as at 30 June 2019
  • recruiting NDIS Commission staff in all new jurisdictions, including recruitment to prepare for commencement of operations in WA
  • preparing the NDIS Commission’s Perth office for transition on 1 December 2020.

Disability Royal Commission and Aged Care Royal Commission

The NDIS Commission continued to cooperate and work with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), and the Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission).

Key activities included:

  • the NDIS Commissioner providing a witness statement to the Aged Care Royal Commission at the end of July 2019. This witness statement responded to a number of questions about the NDIS Commission’s role, functions and early experience in regulating quality and safeguarding in the NDIS, and built on the comprehensive Information Paper on the work of the NDIS Commission that was provided in response to a request from the Aged Care Royal Commission at the end of June 2019
  • providing information to the Disability Royal Commission in the public interest under the information protection and disclosure provisions in Part 2 of Chapter 4 of the NDIS Act and the NDIS (Protection and Disclosure of Information — Commissioner) Rules 2018 in November 2019
  • providing information to the Disability Royal Commission in response to a notice in December 2019
  • the NDIS Commissioner providing a witness statement to the Disability Royal Commission in response to a notice in February 2020.

The NDIS Commissioner also gave evidence on 27 February 2020 at the Disability Royal Commission’s hearing in Sydney on the provision of health care to people with disability, particularly people with intellectual or cognitive disability.

Response to the death of Ms Ann-Marie Smith, an NDIS participant

Ms Ann-Marie Smith died in appalling circumstances on 6 April 2020 in South Australia. Leading up to and at the time of her death, Ms Smith was receiving supports and services by registered NDIS provider Integrity Care (SA) Ltd (Integrity Care). Ms Smith’s death is the subject of an active investigation by the South Australian Police and the NDIS Commission.

While its investigation is ongoing at 30 June 2020, the NDIS Commission has already taken a number of compliance actions against Integrity Care, including: the issue of a compliance notice; applying additional conditions of registration; and issuing a penalty infringement notice for a specific breach.

In addition, the NDIS Commission used its powers to require more than 2,700 providers delivering assistance with daily personal activities to disclose whether they had any single-worker arrangements and, if so, how they were ensuring that supports were being provided in a safe and competent manner.

During the course of the NDIS Commission’s investigation and as further information becomes known, the Commission may take a range of further compliance and enforcement actions against Integrity Care.

The Commissioner appointed the Hon. Alan Robertson SC, a former Federal Court judge, to lead an independent inquiry into the systems and processes of the NDIS Commission in its regulation of Integrity Care.

Legislative and regulatory changes

The NDIS Commission monitors the impact of new regulatory requirements, including registration and audit costs on small business.

In the past year:

  • changes were made to the rules under the NDIS Act to address disproportionate regulatory impact on smaller businesses delivering lower risk supports. Importantly, these changes have not reduced the safeguarding effects of the regulatory arrangements for NDIS participants. The changes, which came into effect on 1 January 2020, removed the mandatory requirement that all providers that are body corporates undergo a comprehensive and more costly type of audit known as certification, irrespective of the types of supports being provided. Now, all providers delivering lower- risk supports will undergo a lighter touch, generally desktop based process, known as verification
  • changes were made to requirements that apply to providers that provide higher-risk supports – they now undergo a mid-term audit during their three-year registration period, rather than two surveillance audits as previously required. This change allows the NDIS Commission to focus mid-term audits on specific areas for review, and does not diminish the oversight the NDIS Commission has on provider practice
  • the Australian Government announced the powers of the NDIS Quality and Safeguards Commissioner will be expanded to ban unsuitable providers and workers from working with NDIS participants, regardless of whether they are active in the sector or not. During this reporting period the Strengthening Banning Orders Bill had been introduced but not yet passed by the Parliament.