6.1
The inquiry received a large body of evidence concerning how planners use expert reports and recommendations from medical and allied health professionals. These reports are often provided before planning meetings to help planners decide what supports participants need in their plans and how much funding is required. This chapter outlines the major issues that participants, providers and advocacy groups identified in this area, including the following:
Planners disregarding expert reports.
Planners changing expert recommendations.
Planners not reading expert reports.
Expert reports being unsuitable for National Disability Insurance Scheme (NDIS) requirements.
Planners and National Disability Insurance Agency (NDIA) staff questioning the impartiality of experts.
Planners funding supports provided by students or therapy assistants rather than fully qualified professionals.
Planners and delegates being unaware of the lifespan of consumable items, leading to the need for plan reviews.
Planners having limited knowledge of the allied health system.
Limited NDIA engagement with the allied health sector.
The current expertise of the NDIA’s expert teams.
6.2
Participants and their families told the committee that they had serious concerns about the decisions that planners were making with regards to expert recommendations and reports. For example, the mother of a participant submitted:
It appears that the many supporting documents and reports that the NDIS requires participants to provide from their treating medical and allied health professional’s for the planning process, are either not read, not understood or ignored.
6.3
Mr Ian Anderson, the father of a participant, argued that the ‘reports by qualified people (clinical psychologists and PhD MD specialists) aren’t the final say for even the most basic of help. It’s up to the discretion of the staff.’
6.4
A participant with psychosocial disability called for planners to respect the reports provided by experts, in this instance the participant’s psychologist and psychiatrist:
They are health professionals who do not lie or exaggerate in their reports. At the time…there was nothing on the NDIS website to guide them. They had to obtain information from advocacy websites. They are both extremely busy professionals and everything they have had to do for me for the NDIS is over and above what is normally expected. What they write should be respected by the NDIS.
6.5
Speech Pathology Australia reported that one planner had told a parent before a planning meeting that ‘I don’t believe in therapy’.
6.6
In some instances, the committee heard, planner decisions to disregard or pick and choose expert recommendations caused some experts to decide not to offer supports to participants. The Australian Psychological Society pointed to ‘abundant evidence that psychologists are choosing not to provide NDIS services’ because they are unable to deliver best practice interventions to participants—particularly those related to early childhood interventions and behaviour management. It suggested that this reluctance ‘is primarily due to the approval of plans for participants that do not reflect what is needed for participants with complex needs, including psychosocial impairments’.
Planners disregarding expert reports
6.7
The committee learned from multiple sources that some planners without expertise were disregarding specialists’ advice ‘routinely’, and that allied health professionals had to ‘constantly’ justify why their services would be beneficial. Some evidence even suggested that planners may be arguing with participants about what they needed on the basis of information that planners ‘Googled’, even when participant requests were supported by reports from occupational therapists and General Practitioners (GPs).
6.8
In some instances, evidence suggested that this may be because planners did not understand the recommendations or the content of expert reports.
For example, Ms Anita Volkert, the National Manager of Professional Practice and Development at Occupational Therapy Australia, argued that:
[S]ome planners…don’t always grasp the fundamental role that specialist equipment or environmental modifications may make to somebody’s ability to participate in the occupations of everyday life. Our members report to us that that can be an extremely difficult aspect of planning discussions and post planning.
6.9
Maurice Blackburn Lawyers documented cases where independent merits reviews of NDIS care plans in the Administrative Appeals Tribunal (AAT) showed them to be:
…deeply inadequate to satisfy the reasonable and necessary support requirements for each participant. The difference between what the NDIA originally determined to be reasonable and necessary, compared to what allied health professionals (and eventually in each case conceded by the NDIA) for those clients, is astonishing.
6.10
The issue of how the NDIA interprets the phrase ‘reasonable and necessary’ is discussed in Chapter 3.
6.11
Ms Shannon Manning, who was an NDIS participant along with her two children, said the NDIA had not taken into account ‘the significant clinical documentation’ outlining both her functional impairments as a carer and the support needs for her children. She wrote:
Anecdotally, I am aware of funding limitations and ‘caps’ being determined based on a diagnosis…This…indicates that Scheme budgetary matters are more important than resultant funding to meet assessed need.
6.12
The committee was provided examples where planners may have overridden expert recommendations. For example, Huntingtons Queensland reported that the manager of an NDIS team had contacted it to ask for support for ‘a change of diagnosis for a person with Huntington’s disease (to suggest the person has dementia) apparently so that their care/accommodation needs could be directed in a different direction’. The manager in question, Huntington’s Queensland submitted, ‘confirmed that no clinician had been consulted or involved in the proposed change of diagnosis’.
6.13
Independent Audiologists Australia submitted that some planners were questioning the evidence base of expert recommendations that children attend audiological services outside of Hearing Australia, which is block funded for participants whose needs are complex and not for other participants with hearing loss.
6.14
The Australian Psychological Society called for the NDIA to review the basis for why planners can reject recommendations, ‘develop more transparent and rigorous decision-making processes’, and require planners to provide clear reasons for why expert advice is rejected.
6.15
The NDIA explained to the committee that a delegate making a decision on what supports to include in a plan ‘must be satisfied that support will be or is likely to be effective and beneficial to the participant, having regard to current good practice’. It stated that evidence that the delegate may consider may include published and refereed literature and/or expert opinion, along with the lived experience of the participant and the effectiveness of the support for others in similar circumstances. The NDIA acknowledged:
In some instances it may be necessary to seek expert opinion to inform the decision. Examples include high risk assistive technology or disability related health supports. In these cases the NDIA delegate will seek an assessment from a suitably qualified assessor to inform the decision.
Planners not reading expert reports at all
6.16
The inquiry received evidence arguing that planners were not reading expert reports at all, and that this is ‘a very consistent complaint about the planning process from families’. For example, Healthy Minds noted ‘a number of occasions’ where ‘the comprehensive, lengthy and time consuming reports which have been requested by the NDIA or Partners…have not been considered and not even noted’ in plans.
6.17
People with Disabilities WA suggested that even though participants may have submitted therapy reports and evidence for reasonable and necessary supports, and brought copies to a planning meeting, planners were saying that they had never seen it before, had not read it, or did not have time to read it. One submitter suggested that people with disability and their families see this as ‘insulting and disrespectful’ in cases where they have tried their best to comply with NDIS processes at considerable time and expense.
6.18
Ms Shayna Gavin submitted that planners may be contacting allied health professionals for information that often is already contained in provider reports.
6.19
The father of a participant reported that a planner had asked his family to explain what was in the expert reports that the family had already provided before the planning meeting. The mother of another participant was of the opinion that planners had not read the report provided for a piece of equipment:
I don’t think they read the application assessment about the walker. On our last plan it was listed as ‘quote required’ but the physio had already done the application and given the quote. Then they took a very long time to put this on the plan. It was another 7 months until they told the supplier to order the walker. They also have just now approved the wrong walker.
6.20
Every Australian Counts stated that when local area coordinators (LACs) and planners did not read reports, this was ‘frustrating’ for participants and ‘particularly galling when people have gone to considerable trouble and expense getting reports from specialists or allied health professionals’. It argued that ‘decisions should be made on [experts’] considered professional opinions rather than the outcomes of Google searches by planners or LACs’.
6.21
Exercise and Sports Science Australia gave one example of an allied health practitioner who was asked to prepare a report for a participant’s plan review. Although the practitioner was given two weeks to prepare the report, the review was finalised before the end of the two weeks and before the report was submitted. As a result, the planner did not review the supporting documentation that the practitioner had prepared ‘and made a clinical decision that they were not qualified to make’. This, it argued, led to reduced funding for the participant and ‘a misuse of valuable NDIS funding (i.e. the NDIS is paying for the preparation of professional reports that are not taken into consideration as part of the plan review process)’. This example was not an isolated incident, with the National Rural Health Alliance also indicating that ‘planners are finalizing plan reviews before the clinician has submitted their final reports’.
6.22
Identitywa recommended that planners be given adequate time to read all documentation provided before planning meetings to overcome the issue of planners not reading expert reports.
6.23
However, the committee was also informed that LACs may not be passing on expert reports to the NDIA, meaning there are no expert reports for delegates to read. As noted elsewhere in this report, LACs are employed under contractual arrangements with the NDIA’s Partners in the Community, and pass on information to NDIA planners, who include delegates of the Chief Executive Officer (CEO), or those who decide supports the NDIS will fund. LACs develop plans for participants, but only NDIA planners can approve the plans.
6.24
One submitter, who self-managed her son’s plan, reported that all of his previous core supports were not included in his new plan, despite an expert report from an occupational therapist recommending them, as well as reports from her son’s support coordinator and support worker:
When I questioned how it was possible that my son’s new plan arrived with no core supports, I was told…that it looked like the LAC had missed adding it to the information that she sent to the Planner. In my view, everyone who has input into building a person’s plan must have access to all the documents provided by participants and their supporters, otherwise one person making a mistake or missing some vital information, can have a profound impact on the final plan. We had to request an immediate ‘review of a reviewable decision’ which took months to occur!…We are still awaiting the outcome and are on the verge of losing our worker….again, because of something totally outside of our control and caused by an inexperienced LAC.
6.25
The national roll-out of joint planning began in March 2020, although further roll-out has been postponed during the COVID-19 pandemic. At joint planning meetings, the participant, their LAC and their assigned NDIA delegate meet ‘to discuss their NDIS plan before it is finalised’, including any issues with the draft plan.
6.26
As noted above, NDIA delegates are required to consider ‘available evidence of the effectiveness’ of a particular support which, the NDIA stated, may include published and refereed literature and/or expert opinion.
Planners changing expert recommendations
6.27
In other instances, the inquiry learned, planners may be picking and choosing expert recommendations, in some cases suggesting alternatives without consulting with the expert who made the original recommendation, leading to participants receiving inappropriate supports. Ms Gail Mulcair, Chair, Allied Health Professions Australia (AHPA) Board, noted that common reported concerns from AHPA’s members included planners making decisions about eligibility, levels of service and therapy, and the provision of equipment, ‘overriding the recommendations of experienced allied health professions and promoting perceived cheaper services’.
6.28
A number of submitters from allied health organisations suggested that planners were removing or substituting supports and services, particularly pieces of assistive technology, against expert advice or without consulting with the expert who recommended the support. Examples of this happening are outlined below.
6.29
Speech Pathology Australia gave an example of a planner rejecting a particular augmentative and alternative communication (AAC) app because ‘children under six shouldn’t be using that sort of technology to communicate; they are too young’. It reported that the particular clinician who recommended that support questioned, ‘Who are these people? What is their background in AAC? I’m a disability clinician, but I am starting to think this is all too hard’.
6.30
A participant with psychosocial disability reported that the NDIA had replaced an expert recommendation for a particular support with another support that would not be beneficial:
In my case, the NDIS took away the psychology and support worker my medical practitioners had advised that I needed and substituted this with an occupational therapist who would not be of any assistance to me but would be cheaper for the NDIS. The NDIS should not place their own bureaucratic expediency over a human being’s welfare.
6.31
St Vincent’s Hospital Melbourne argued that planners without clinical training ‘are making clinical decisions without the knowledge and capacity to make judgements on type, amount and allocation of required resources, while therapist expertise is not understood and/or valued’. It provided the following example:
A planner informed the [Young Adult Complex Disability Service] Senior Physiotherapist that a power wheelchair (AT) was unnecessary, as he (the planner) is also a person with a disability who does not use power mobility. The planner felt his lived experience and disability was equivalent to the participant. The Physiotherapist questioned this reasoning, as there was no clinical similarity between the disabilities of the client and the planner.
6.32
Ms Shayna Gavin, a practising physiotherapist, was critical of a planner who recommended that a participant change his therapy program entirely:
His physio, OT and speech pathologist had established rapport; got along well with him and his family; complemented his kinder program; were building family capacity; and had completed detailed reports to assist in goal setting the NDIS initial planning process. His planner advised his family to swap to an [applied behavioural analysis] program. There was no evidence that this was required for his goals and needs, and there was no evidence from his lived experience that this would be effective.
6.33
Ms Gavin gave another example in which a planner arranged for a participant to hire a walker similar to one that ‘we had decided against, from a different brand. They did not compare the features of the walkers, and did not consult me as the prescriber or the family’.
6.34
Noah’s Ark provided an example of a planner rejecting a recommendation for a piece of equipment from a key worker, who was an early childhood intervention professional:
One planner without a background in [early childhood intervention] declined an application for a standing frame for a child against the documented advice of the Key Worker. When this refusal was queried, the planner said that she had not included the standing frame as the child may be likely to require a walker in another couple of years and the NDIA could not justify the expense of both. The Key Worker explained that the child needed support to stand in order to enhance the later possibility of walking.
6.35
Occupational Therapy Australia suggested that planners, because of a lack of experience in health and allied health, ‘often recommend highly inappropriate assistive technology’ such as ‘including manual wheelchairs in plans for people with rheumatoid arthritis who have reduced hand function and are unable to self-propel a wheelchair’.
6.36
Early Start Australia offered an example of a physiotherapist who had recommended that a child be provided with three pairs of custom made shoes a year, given the wear and tear involved because of the participant’s bilateral foot deformity and the risk that any less would cause injury and increase the likelihood of the participant becoming a bilateral amputee. Early Start reported that the NDIA delegate considered that two pairs of shoes a year would be sufficient. The physiotherapist involved argued that the delegate’s ‘decision to save $3,000 a year by rejecting the LAC’s decision is likely to create a significant disability for this child that he would not otherwise have’.
6.37
AHPA considered that planners choosing to reject supports, or only partially fund them, ‘appears to be done on what seems to be an arbitrary basis, in some cases only on the opinion of the planner, and in clear contradiction of…expert recommendation’. AHPA argued that this appeared to be driven by a focus on cost-cutting, with common examples including the following:
Replacement of one type of service with a lower-priced version, such as choosing to fund personal training services rather than exercise physiology.
Partial funding or funding of lower-priced assistive technology.
6.38
Speech Pathology Australia suggested that the result of planners making their own decisions about expert recommendations was some participants being over-funded or under-funded for supports, with ‘numerous instances where the number of speech pathology sessions listed in a plan is far above or below that which the evidence recommends for clinical efficacy…’.
6.39
Ms Shayna Gavin, a practising physiotherapist, argued that planners should ‘be clear on the limitations of their role and refrain from providing professional advice which would require Professional Indemnity Insurance’. She argued:
When AHPs [allied health professionals] make AT [assistive technology] prescriptions, our decisions fall under our Professional Indemnity insurance. Changes to our AT prescriptions cannot be made without our involvement as the qualified AHP. If a planner or NDIA delegate make changes, they will be assuming the risk of injury or death to the participant, caregiver or bystanders if there is an issue with the item. This is not understood by the NDIA and poses a significant risk, as it is a common occurrence.
6.40
AHPA argued that while in some situations a second opinion may be appropriate if a planner is concerned about a provider’s recommendations, ‘we do not believe that a planner should override expert recommendations without the necessary knowledge and expertise to do so’. It suggested that a solution could be a mechanism for providers to flag their concerns with planners making decisions against the advice of experts, and NDIA internal mechanisms to determine whether further training is required for planners. It further proposed that the NDIA should report its reasons for rejecting a request.
6.41
Carers NSW proposed that if the NDIA decides not to fund expert recommendations in a plan, ‘further communication should be made with the participant or their nominee to provide feedback, enabling transparency and consistency and reducing distress for participants and carers’.
6.42
The National Disability Insurance Scheme (Supports for Participants) Rules require the CEO (or delegate) to be satisfied that a support will be, or is likely to be, effective and beneficial for a participant, with regard to current good practice, by examining the available evidence. This evidence may include ‘published and refereed literature and any consensus of expert opinion’, as well as ‘anything the Agency has learnt through delivery of the NDIS’. Further, when deciding whether a support would be, or would be likely to be, ‘effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion’.
Expert reports being unsuitable for the NDIS
6.43
The committee learned that even where expert reports are provided, and planners are reading them, the language and content may not be suited to what planners need to make decisions about what supports to include in a plan.
6.44
One psychiatrist, submitting to the committee’s inquiry on the NDIS Quality and Safeguards Commission, reported that doctors spend hours preparing letters of support, outside of consultation hours, with very limited resources available for medical experts on what to include in these letters. She suggested that it ‘is demoralising when these efforts make no material difference’.
6.45
The father of one participant suggested that one planner refused to use expert reports because they had not been formatted in accordance with NDIA requirements:
…this planner spoke disparagingly of the expert reports submitted by my son’s allied health professionals, claiming that they were not in the required format and therefore could not be used. We asked the planner, on multiple occasions, to provide information about the required format and the method by which we should obtain and submit replacement reports, but these requests were all ignored.
6.46
Identitywa further contended that some planners appear to read only certain parts of allied health reports:
One example of this in the past few months was a planner [who] stated that an individual could ‘cook his own meals’ and was therefore independent in this regard. This was interpreted from a 1 hour OT [occupational therapist] assessment where the individual was observed (with prompting) to get a frozen meal out of the freezer, prompted to open the packet assisted to set the time for cooking on the microwave, assisted to check it for heat, assisted to get it out of the microwave with prompting to use oven mits, and assisted to put the food on his plate. What wasn’t overtly stated in the OT report was that, without verbal prompting and support, this person would not be able to undertake this task independently. If Identitywa staff had not queried this, the individual would not have the level of support that he requires to live in [supported independent living].
6.47
Carers NSW proposed that the NDIA implement additional report writing templates for experts to ensure that they include appropriate information in reports and minimise administrative time and costs for participants.
6.48
The NDIS website provides practical resources and videos to help GPs and allied health providers support patients, including resources developed by GPs and organisations.
Impartiality of experts questioned
6.49
Some evidence suggested that planners may believe that experts are not being impartial. For example, the Australian Music Therapy Association reported that one parent, after asking at her local NDIS office why the NDIA had not approved recommendations from allied health professionals for particular supports for her children, was told that ‘therapists lie’.
6.50
Identitywa suggested that this may particularly be an issue for planners with less experience or expertise. It argued that while ‘it is important to be objective as a planner, it is rare that an independent allied health professional will make an assessment that is not reflective of the participant’s needs’.
6.51
Ms Shayna Gavin, a practising physiotherapist, reported that families had often told her that planners had told them in planning meetings that providers were on a ‘money grab’ and ‘the providers always ask for too much, you won’t get that much’. She argued that:
It is important to note that we receive no financial income through prescribing AT [assistive technology] items. Also when we help a family in advocating for their child’s needs in a planning process, this is for all their needs (eg. support workers, other [allied health providers], community services, and AT). The assistance we give benefits many providers other than ourselves. We are bound by the Australian Health Practitioner Regulation Agency and the Australian Physiotherapy Association codes of conduct regarding provision of services to meet a clinically justifiable need, and not to over-service for monetary gain.
The view that all providers are greedy is a corrosive and inaccurate belief that discourages a cooperative working relationship between the NDIA, providers and families.
6.52
Mr Tom Ballantyne from Maurice Blackburn Lawyers noted a ‘perception about a conflict of interest’ for allied health professionals who already have relationships with participants and who then recommend that the NDIA fund allied health supports that would then benefit them. However, Mr Ballantyne argued that this ‘can be managed in other ways’.
6.53
Carers NSW suggested that if planners have concerns about a conflict of interest, the NDIA should seek further guidance from other qualified professionals who are able to interpret and review expert recommendations.
The NDIA’s position
6.54
The NDIS website states that participants attending plan review meetings may need to provide assessments or reports from their service providers to show how their supports and services are helping them achieve their goals, as well as recommendations for supports and services that the participant might need in the future. The website notes that the participant’s Early Childhood Early Intervention Coordinator, LAC or the NDIA will discuss the need for these reports with the participant.
Allied health assistants and students
6.55
A further issue raised in evidence concerned planners funding supports for participants to be provided by allied health assistants and/or students rather than a qualified therapy provider, with submitters suggesting planners may be recommending this because such services may be cheaper. Speech Pathology Australia argued:
Whilst this is concerning from the point of view of expertise and quality of service, it is also ineffective and potentially dangerous when no support or funding is included to provide for a qualified therapist to oversee them. This practice is yet another example of insufficiently trained NDIS staff making decisions about an individual’s support needs, which may be complex and require specialist assessment.
6.56
Early Start Australia argued that planners asking participants to ‘stretch their money’ by using non-qualified therapy assistants was the equivalent of ‘saying you don’t need to see a Dr but the technician in the medical practice can do the same job’.
6.57
Exercise and Sports Science Australia (ESSA) raised a related issue, noting a growing trend in NDIA planners reducing funding for exercise physiology, and requesting that accredited physiologists train unqualified support workers to deliver exercise physiology interventions—ultimately leading to poorer outcomes for participants. ESSA indicated that this may be driven by a lack of understanding as to the distinctions between the role of support workers and allied health professionals (who deliver clinical interventions). Chapter 4 outlines decisions about plan funding in greater detail.
6.58
The NDIA stated that it works with participants, their families, carers and representatives ‘to develop a holistic understanding of participants’ support needs during the planning process’, with regard to the NDIS Act, the NDIS (Supports for Participants) Rules 2013 and the NDIS Operational Guidelines. It informed the committee that value ‘for money is only one component of the decision’.
6.59
The NDIS website states that allied health provider students providing services to NDIS participants should be under the supervision of a qualified allied health practitioner ‘when delivering the service and the participant has agreed that the student may deliver specific aspects of the support’. Further, the ‘service agreement between the provider and the participant should document this consent and how the arrangement can result in additional flexibility’ for the participant, such as lower hourly rates.
Consumable and ancillary items
6.60
The committee was also informed that plans may not include funding for consumable and ancillary items, despite experts recommending these. For example, Mr Tom Ballantyne, Maurice Blackburn Lawyers, suggested that one of the most common problems allied health providers see is that planners may approve a particular item, ‘but there is no understanding of any of the other things that are crucial but ancillary to that item’, such as capacity building and training in how to use equipment, because ‘planners do not understand the knock-on effects’.
6.61
The Australian Orthotic Prosthetic Association (AOPA) submitted that planners may be unfamiliar with the longevity of some consumable items funded for in plans, such as prosthetic liners, sleeves or foot shells. As a result, it argued, participants needed to request a plan review to incorporate funding for these items while ‘continuing to use items that have perished and require replacement’.
6.62
As noted above, the NDIA informed the committee that delegates, when making decisions on what supports to include in a plan, may take into account published and refereed literature and expert opinion. The National Disability Insurance Scheme (Supports for Participants) Rules require the CEO (or their delegate) to be satisfied that a ‘support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice’, by examining the available evidence.
Planner lack of knowledge of allied health
6.63
As outlined above, the committee learned that planner lack of knowledge of allied health may in turn be impacting the supports that are funded in participants’ plans and the quality of plans.
6.64
Ms Shayna Gavin, a practising physiotherapist, acknowledged that planners could not be expected to be experts in every field. However, she argued that if planners are making decisions about what is ‘reasonable and necessary’, they should have adequate understanding of allied health, and value input from families and allied health providers who may have more expertise than them in specific areas.
6.65
The National Rural Health Alliance expressed concern about ‘the overall lack of knowledge of the roles and scope of practice of the different health professionals’. It acknowledged that some planners may have some knowledge of different roles of allied health practitioners, while others may not, ‘resulting in inconsistent approvals for allied health practitioners to provide services’. It gave the following example:
Speech Pathologists and Occupational Therapists (OTs) can be involved in behaviour management, but some planners do not acknowledge the full scope of their practice and use behaviour teams instead, which is unnecessary. A [participant] may be averse to light and sound or have no verbal language, which can lead them to become frustrated and aggressive towards others. The speech pathologist or OT do have the skills and knowledge to provide behaviour support to achieve better outcomes.
6.66
The National Rural Health Alliance called for planners to work ‘collaboratively with specialist disability organisations or particular health professionals’. This issue is discussed further below.
6.67
The NDIA informed the committee that it ‘has a broad team of subject matter experts with specialist clinical and technical expertise in various disability and health related fields’, with whom NDIA planners consult. The team is known as the Technical Advisory Branch. The NDIA also has a team of Strategic Advisers who offer expert advice in autism, early childhood early intervention, psychosocial disability, interface with the health sector, employment and contemporary innovative supports. The NDIA stated that these ‘teams provide individual advice and practice guidance to assist NDIA Planners to make informed and appropriate decisions regarding supports for participants’.
6.68
The NDIA informed the committee that NDIA delegates, when making decisions on internal reviews, may ‘seek technical advisory support from within the NDIA to ensure decisions are made upon the best available evidence’. Further, technical and subject matter experts from the NDIA Early Childhood Services team provide specialised training for planners and Early Childhood Early Intervention Partners who develop plans for participants under the age of seven. The NDIA also noted that while it does not require planners to have expertise in allied health related areas, this is ‘highly valued’.
Limited NDIA engagement with the allied health sector
6.69
A further issue raised concerned NDIA engagement with the allied health sector. The committee was informed that some groups had engaged with the NDIA and found this to be a positive experience, while for other groups, engagement was limited. For example, AHPA argued there is ‘a deliberate intention’ on the part of the NDIA ‘to close off the planner workforce from engagement with the allied health sector’. AHPA argued that:
…despite meetings with senior executives and with the Technical Advisory Team, there has been no constructive engagement with the allied health sector in relation to planning. This stands in stark contrast to the approach taken by other parts of the NDIA in engaging with AHPA and its members in a range of areas such as pricing and provider policy…AHPA strongly argues that the NDIA’s planning division will not achieve significant improvements without a more transparent and collaborative approach to working with consumers and providers.
6.70
AHPA called for ‘processes and guidelines’ that would enable planners to access professional input and advice as required. AHPA also proposed that allied health professionals be involved in collaborative planning with participants where possible and appropriate, with checks and balances in place to address any potential conflicts of interest. It suggested this could be especially beneficial in complex areas such as assistive technology, to reduce the possibility of planning errors.
6.71
Similarly, the National Rural Health Alliance noted that there ‘are no clear processes available to address the challenge of planners’ inadequate knowledge base of complex needs’. It proposed ‘processes and guidelines’ that would assist planners to access professional advice.
6.72
A number of allied health organisations who submitted to the inquiry stated that they had contacted the NDIA to offer resources to raise awareness about their particular areas of practice, with no response. However, Exercise and Sports Science Australia noted that the NDIA had engaged with the Allied Health Professions Australia’s NDIS Working Group to discuss a project to improve interactions between the NDIA and external allied health practitioners. It called for this project to progress and be given appropriate resourcing.
6.73
Mr Philipp Hermann, the Manager of Policy and Communications at Allied Health Professions Australia, stated that Allied Health Professions Australia had met with a member of the NDIA executive:
One of the things that was raised was assistive technology and the fact that decisions were being made by planners that overruled experts, without other expert opinion. What really concerned us was that there was no acknowledgement that that might be an issue. I’m not arguing that the allied health professional’s report or assessment should absolutely be taken as fact in every case, but I don’t understand how you can have an expert professional who has an intimate understanding of the participant and the issues and everything else being rejected without some sort of counter evidence.
6.74
The Dietitians Association of Australia submitted that the NDIA may have ‘relied on other professions for advice about dietetic practice, which is unethical, unacceptable and contrary to the codes of conduct for registered and self-regulated professions alike’. It noted that more recently the NDIA had indicated increased willingness to engage with peak bodies ‘but there is a long way to go’.
6.75
Ms Bridgit Hogan from the Australian Music Therapy Association noted that the NDIA’s technical advisory and complaints branch had asked the Australian Music Therapy Association for more information on their services, but argued that ‘what they want to hear is a bit unrealistic’, including how many sessions a participant would need in general for music therapy to be effective:
Well, for one participant it may be effective after three sessions. For another participant it may be effective after 25 sessions. It is unethical and certainly not consistent with our practice statements to determine upfront how many sessions somebody is going to require until a full assessment has been done. I would say that that is consistent across allied health. We’ve tried to point this out to them in a respectful way and we have given them all the information they’ve asked for, plus more, but they have just ceased to communicate with us and take on board any information that we have.
6.76
On the other hand, Yooralla, which submitted that it is ‘the sole provider of a ventilator assisted support service’, reported a positive experience of engagement, with the NDIA ‘making the time to learn about’ the service by sending NDIA personnel to visit the service, leading to ‘the complex needs’ of participants needing this support type ‘now being met’.
6.77
Mr Ballantyne from Maurice Blackburn Lawyers proposed that the NDIA have a panel of external providers who are registered with the agency to provide independent assessments of whether proposed supports in a plan are essential. He suggested that joint planning may further resolve the issue of planners deciding to fund only some recommended items, if joint planning sessions were open to allied health professionals who have an existing relationship with a participant.
6.78
Submitters to the inquiry made the following suggestions for the NDIA to improve its current level of engagement with the allied health sector:
Encourage planners to consult widely when determining appropriate supports.
Support planners to communicate directly with allied health professionals if they have further queries after reading reports.
Provide training to planners on how to understand and implement medical and health professional reports.
Allow providers, with participant consent, to view draft plans to identify major errors or oversights.
Form expert teams of advisors to advise the NDIA on best-practice therapies and new evidence.
6.79
The NDIA informed the committee that following an application for assistive technology, it ‘engages appropriately qualified Assistive Technology (AT) assessors to undertake an AT assessment for a participant’. The assessor then recommends to the NDIA which piece of equipment might be most appropriate for the participant’s circumstances.
6.80
As noted at the end of this chapter, the NDIA has also recently announced that it will be introducing independent assessments for participants, including, from mid-2021, in the planning process. Participants will be able to choose from a panel of independent assessors from the allied health sector, which the NDIA is in the process of determining.
Expert teams within the NDIA
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As noted above, the NDIA has a Technical Advisory Branch of ‘subject matter experts with specialist clinical and technical expertise in various disability and health related fields’. It also has a team of Strategic Advisors who provide expert advice on autism, early childhood early intervention, psychosocial disability, interface with the health sector, employment and contemporary innovative supports.
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However, submitters indicated that there is some confusion about the existence of the NDIA’s expert teams. For example, Queensland Advocacy Incorporated reported ‘mystery surrounding the existence of “expert teams” to whom planners apparently can or do defer when they are uncertain about some matters’. It called for ‘transparency about what these teams do, where they are based and what expertise they are deemed to possess’.
6.83
Occupational Therapy Australia noted that the NDIA has ‘specialist assessor panels…who review complex assistive technology and home modification reports provided by occupational therapies’. However, it questioned the skill level of these panels, with some decisions ‘appearing to be made by unskilled staff (as evidenced by incorrect details, the omission of important details, and misused technical language)’.
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The NDIA has provided the committee with further information on the NDIA’s expert teams through an answer to a question on notice, which is available on the committee’s website.
6.85
The Australian National Audit Office (ANAO), in a report on decision-making controls for NDIS participant plans in October 2020, noted that an internal audit of the NDIA completed in February 2020 had identified ‘weaknesses in system controls that support’ Technical Advisory Branch processes, with a large proportion of plans which met the mandatory criteria to be referred to the Technical Advisory Branch not being referred. In particular, only 28 per cent of plans that met the mandatory referral criteria in relation to assistive technology and 19 per cent of plans that met the mandatory referral criteria in relation to supported independent living supports had been referred. The ANAO recommended that the NDIA review and update its information and communication technology (ICT) controls for recording decisions on participant plans ‘to align the system processes with internal policy requirements and to better support planning processes for reasonable and necessary decision-making’.
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The NDIA supported this recommendation and stated that its current program to improve its ICT systems used in participant planning ‘will include appropriate preventative controls, processes, data pre population and system edits to support’ the planning process. The design phase of the program, it stated, ‘will integrate the system controls improvements identified in ANAO’s findings’.
Other issues related to the role of experts
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Other issues raised related to the role of experts included:
Planners telling participants that they did not need expert advice on replacements for complex assistive technology.
Short notice providers may be given about a plan review.
Incorrect funding allocation in plans for particular supports.
The NDIA requiring a large body of evidence to support requests for supports.
6.88
Occupational Therapy Australia noted ‘reports of participants being advised they do not need an occupational therapist to advise them on the replacement of complex assistive technology’. It emphasised that some assistive technology suppliers may be unwilling to sell certain types of equipment to NDIS participants without an appropriate prescription, for fear of negligence claims. It called for the NDIA to ensure that participants have access to funding for occupational therapy or other prescribing allied health professionals so that they have expert advice on what assistive technology is most appropriate.
6.89
Early Start Australia suggested that providers may be given only short notice of a plan review, in which case their reports may not be prepared in time for the review, leading to new plans that do not include particular supports that the provider would have recommended. It recommended that planners ‘allow suitable time for reports requested from providers as a result of the plan review meeting with the participant’.
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AOPA reported that planners may also be unfamiliar with registration and support catalogue arrangements for orthotists or prosthetics, meaning that ‘it is not uncommon for a plan to be developed with allocation of orthotic/prosthetic related devices and services under incorrect catalogue support codes’. The Royal Australasian College of Physicians also argued that inadequate ‘allocation of funding for orthotics…has been a major issue across many states and territories’, resulting in ‘significant delays in children being able to obtain appropriate orthotics, which has been detrimental to their functional abilities’.
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AOPA also informed the committee that plans may not allocate funding for clinical assessments, or funding for clinical assessments may be incorrectly allocated to a different support code. This may mean that orthotists and prosthetists are not able to claim for services for which they are not registered, leading to the need for plan reviews.
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The Disability Council NSW contended that the NDIA was making ‘onerous demands’ of participants to justify the level of funding they needed for supports:
There are reports of NDIS participants providing medical evidence of their disabilities and conditions but then being denied standard care supports for these disabilities. For example, one deaf participant suffers from vertigo and bad balance which is common amongst deaf people. This participant found physiology helped her to maintain control and cope with her bodily imbalance. She had already provided medical evidence of her hearing and balance issues yet the NDIA found this to be insufficient and required her to get another report from an ENT specialist to specifically state that physiology can assist with her balance issues caused by her deafness. In addition to this, they had asked her to seek alternative costs [therapies] that are cheaper and more effective than physiology.
Independent assessments
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In August 2020, the Minister for the NDIS, the Hon Stuart Robert MP, announced that the NDIS would be funding independent assessments for participants to ‘deliver a simpler, faster and fairer approach to determining a person’s eligibility right through to developing more flexible and equitable support packages’.
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Mr Martin Hoffman, the CEO of the NDIA, told the committee that from
early 2021 the NDIS would fund independent assessments for new participants over the age of seven, followed by independent assessments at some plan reviews for existing participants from mid-2021. Mr Hoffman stated that these will only be needed if ‘there is a major change in a participant’s life or plan’.
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Mr Brett Bennett , the General Manager of Participant Experience Design at the NDIA acknowledged that part of the reason for introducing independent assessments was ‘about some of the inconsistencies of our decisions’ that it was ‘really important that we get that right, and that people with similar circumstances receive budgets in line with their level of function’.
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Mr Hoffman stated that the NDIA was in the process of ‘creating a panel of assessors—health professionals, like occupational therapists, physiotherapists, speech pathologists, clinical and registered psychologists, rehabilitation counsellors and social workers—who will work at arms-length from the NDIA’. Participants would be able to choose their assessor, where possible, and the assessment will be carried out in one session or multiple sessions.
Mr Hoffman noted that other experts can still be involved in applications, and participants will still be able to submit further information or evidence if this is needed at plan reviews. He advised that the number of organisations involved in the panel of allied health experts will be finalised before the end of 2020.
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Mr Hoffman also told the committee that the idea behind independent assessments is that they ‘should be sufficient and complete enough in order to give an access decision and then to develop the plan’, with other information assisting but not ‘necessary’ if participants could not pay for additional reports and assessments. Mr Hoffman stated that the NDIA was still working through the details of independent assessments through consultation, including what the NDIA’s processes would be if a participant’s treating professional provided a report that was different to a report from an independent assessor. He advised that where ‘there is additional information, that will certainly be taken into account’, and if a participant is unhappy with an assessment, the process would remain as it currently exists—that is, to lodge an internal review and then, if necessary, an appeal to the AAT.
Committee view
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The issues outlined above suggest that experts have serious concerns about some of the decisions that planners are making, whether because planners do not have time to read expert reports, not understanding expert recommendations or changing or amending these recommendations. This is particularly concerning given that allied health professionals are qualified to make these recommendations, while planners are not. The committee notes that the Tune Review also looked at the issue of planners ‘not fully considering the reports participants provide’ and ‘not sufficiently taking into account the recommendations of experts’. The Tune Review argued that planners ‘need to recognise that they are not necessarily the experts on a person’s functional capacity’.
6.99
The committee acknowledges that the NDIA provided the committee with detailed information about its Technical Advisory Branch and internal teams of experts who may offer advice on the appropriateness of expert recommendations. However, the NDIS website does not appear to contain any references to the NDIA’s Technical Advisory Branch, meaning that it may be difficult for participants, their families, advocates and providers to find this information. As such, the committee recommends that the NDIA make information on its expert teams publicly available on the NDIS website, for transparency and so that participants and the allied health sector can have confidence in the work of the NDIA.
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The committee recommends that the National Disability Insurance Agency publish clear and detailed information about its Technical Advisory Branch and expert teams on the National Disability Insurance Scheme website.
6.101
Further, the committee notes the evidence suggesting that some allied health professionals may be disengaging from the NDIS and refusing to work with NDIS participants because of the belief that their reports and recommendations are a waste of time, or because the content and formatting requirements for expert reports are unclear. The committee notes that some guidance is available on the NDIS website, but also considers that the NDIA should publish templates for experts to aid them when writing reports to support participant requests for supports in their planning meetings and plan review meetings.
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The committee recommends that the National Disability Insurance Agency develop, publish and implement templates for allied health experts to assist them when drafting reports and recommendations for particular supports to be included in participants’ plans.
6.103
The committee shares the view of the Tune Review that independent functional assessments may reduce the likelihood that a participant would be required to undergo further assessments or produce additional information during planning and the plan review process. The committee notes that independent assessments will begin to be used for plan reviews from the middle of 2021, with participants able to choose from a panel of experts such as psychologists, physiotherapists, health professionals and so on. This reform may go some way towards addressing a number of the issues raised in this chapter, including planners making inappropriate recommendations. However, it is still unclear whether NDIA delegates will be required to follow the recommendations made by independent assessors when determining what supports to fund in a plan, or what the process will be if an independent assessor makes a recommendation contrary to what another expert, involved in the participant’s life, makes.
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The committee also holds concerns about the compulsory nature of independent assessments, especially where an expert who has worked with a participant over a longer period of time may be better placed to make recommendations to benefit a participant. The committee will address broader concerns related to the independent functional assessments further in its forthcoming report into general issues around the implementation and performance of the NDIS.
6.105
The issue of experts disengaging from the NDIS because of the belief that their recommendations will be ignored poses considerable risks for the overall health and the reputation of the Scheme. If participants are to exercise choice and control, it is essential that they have a broad range of providers from whom they can choose, including providing evidence for supports in a plan. Further, these providers should have faith that the significant funds committed to the NDIS are being used for supports that have the best evidence base behind them, and that these supports will not negatively impact participants’ health or disability in the long-term.
6.106
The committee was seriously concerned by the suggestion that planners and/or NDIA delegates could be liable for professional indemnity claims because they have recommended and approved particular supports that are inappropriate and contrary to or vary from the supports that professionals have recommended. The committee recognises that the existence of the NDIA’s Technical Advisory Branch and expert teams go some way towards mitigating the risk that planners and delegates may be making inappropriate recommendations but, given that these never meet or consult with the participant, the risk remains, however small, that the NDIA could be subject to litigation because of inappropriate recommendations.
6.107
The committee is concerned by the implication that planners are not required to heed expert recommendations provided in reports (or the forthcoming independent assessments) or the best available evidence when deciding whether to fund a support. Indeed, at present, the CEO (or their delegate) is only required, under the NDIS Act, to be satisfied that a ‘support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice’.
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The National Disability Insurance Scheme (Supports for Participants) Rules 2013, which provide further detail, require the CEO ‘to consider the available evidence of the effectiveness of the support for others in like circumstances’, but only state that this evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
6.109
The Rules do state that ‘the CEO is to take into account, and if necessary seek, expert opinion’ as to whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice. However, the committee considers that the Rules do not provide sufficient clarity to ensure that the NDIA is taking into account current, best-practice evidence that is relevant for that specific participant, rather than anecdotal evidence or experience about other participants with similar circumstances. If supports are clinical or therapeutic in nature, they should be prescribed by an expert who is familiar with the participant, and not by planners because of word-of-mouth, lived experience or institutional knowledge (where that institution is a government agency and not an allied health practice). This is just as true for mental health supports that a participant may need to manage their psychosocial disability, as it would be for a piece of assistive technology or prescription medication.
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As such, the committee recommends that the Rules be amended to require the CEO or their delegate to consider the available expert evidence of the effectiveness of a support for a particular participant—not merely participants in general with the same or similar disabilities. This amendment would reduce the risk, outlined above, of the NDIA inappropriately approving supports that would subsequently cause harm to a participant because of the belief that such a support would be beneficial for all participants with the same or similar disability type.
6.111
The committee recommends that the Australian Government amend the National Disability Insurance Scheme (Supports for Participants) Rules 2013 to require the CEO of the National Disability Insurance Agency (or their delegate) to take into account any expert advice developed specifically for a participant when deciding whether a support would, or would likely, be effective and beneficial for that participant.
6.112
The committee reiterates its position outlined in Chapter 2, that the NDIA should provide participants with draft plans at least a week before a planning meeting to ensure that participants have the opportunity to show experts who recommended a support any proposed changes that planners or NDIA delegates have made to expert recommendations. Doing so would reduce the likelihood of planners making serious errors in areas in which they have limited or no expertise, decrease the chance—however remote—of litigation because of inappropriate recommendations, and further reduce the need for internal reviews and appeals to AAT.
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Even so, allowing providers the opportunity to comment on draft plans may not be sufficient to ensure that planners and/or delegates do not make inappropriate recommendations, given that delegates will make the final decision on what to fund. To address this issue, and given that independent assessments have not yet been rolled out-–nor tested for their effectiveness—the committee recommends that if a planner or delegate makes a recommendation contrary to a recommendation made in an expert report or independent assessment, the NDIA must be required to provide participants with the reason for this decision in writing along with their draft plans, at least a week before their joint planning meeting.
6.114
The committee recommends that where a participant’s plan does not reflect expert advice developed specifically for that participant, the National Disability Insurance Agency be required to provide written reasons for this decision at least one week before any joint planning meeting (and also in an alternative format where appropriate).
6.115
Given that the question of what procedures would be in place for instances where an independent assessor makes recommendations that conflict with recommendations from other experts working closely with participants has not yet arisen, the committee will maintain a watching brief on this issue and make further recommendations in future inquiries, if the committee considers it necessary.
6.116
Finally, the committee notes recent efforts on the part of the NDIA to engage with particular professions in the allied health sector. The committee encourages the NDIA to further engage with the sector, including, where appropriate, the development of training and educational materials for planners. The issue of planner training and expertise is addressed in greater detail in the following chapter, where the committee outlines further recommendations in this area.