5.1
This chapter outlines evidence provided to the committee in relation to the Commission's process for registering providers of NDIS supports and overseeing worker screening arrangements for registered providers. In relation to the registration process, key concerns raised by submitters and witnesses included that:
elements of the Practice Standards against which providers must be assessed for registration (and associated guidance materials) may benefit from review to ensure they are fit for purpose; and
the registration itself poses significant administrative and cost burdens on some providers, not least of which are costs associated with audits.
5.2
In relation to worker screening, key concerns included:
that the new process may not be well understood;
delays associated with the new national worker screening arrangements; and
whether unregistered providers should be subject to worker screening requirements.
Overview of registration process
5.3
The Commission's registration process is intended to be proportionate to risk according to the types of supports offered and size and scale of the provider, and whether the provider is already subject to professional regulation.
5.4
Providers seeking registration with the Commission (or renewal of registration) must be audited against the Practice Standards that apply to the supports that they propose to deliver. The Practice Standards consist of:
High-level outcomes, which are focused on participants; and
A series of 'quality indicators' for each outcome that auditors use to assess compliance with the Practice Standards.
5.5
There are two types of audit, and the audit required depends on the type of supports offered and whether the provider is an individual, partnership or body corporate. 'Verification' audits are a lighter touch desktop audit, while 'certification' audits are a more detailed process. Audits must be undertaken by a quality auditor approved by the Commission.
5.6
Providers seeking initial or renewed registration must use the online application portal on the Commission's website to provide information about the organisation, select the registration groups that will determine which NDIS Practice Standards apply, and complete a self-assessment against the relevant Practice Standards.
5.7
Once the initial application is submitted, the Commission will tell the provider what type of audit is required. The provider must then engage an approved auditor to undertake the required audit. The auditor submits the outcome of the audit to the Commission, which then undertakes a suitability assessment. Once this is completed, the Commission will contact the provider to let them know if the application is successful and the reasons why or why not.
5.8
The registration process applies for both new entrants to the NDIS market and for providers that were previously registered by the NDIA, who are required to renew their registration with the Commission within timeframes recommended by the states and territories.
NDIS Practice Standards
5.9
The committee heard a range of concerns about the practice standards. Key areas of concern included that the overall approach of the standards is difficult to apply in practice and that not all providers may understand their obligations under the Practice Standards.
Practical efficacy of Practice Standards
5.10
Submitters queried whether the Practice Standards were a practical tool for providers. For example, Stride Mental Health stated that the level of detail within the Practice Standards presents challenges to small business and sole traders, and that such providers may lack the resources and financial support to implement and apply the Standards.
5.11
Ms Jade McEwen, a PhD candidate with the Living with Disability Research Centre, raised a number of concerns about the efficacy of the Practice Standards. Ms McEwen observed that the Practice Standards are written in high level abstract concepts, with ‘little attention paid to what these concepts actually look like in practice’. As an example, Ms McEwen observed:
[U]nder the outcome area ‘Privacy and Dignity’ within the Core Module section of the standards, it states ‘Each participant accesses supports that respect and protect their dignity and right to privacy’…However, no further information is provided about what ‘respecting an individual’s privacy or dignity’ actually looks like in practice. Consequently, service providers and the review bodies responsible for monitoring compliance with the standards, have no practical guidance about how ‘good’ or ‘poor’ service quality presents.
5.12
Ms McEwen further observed that the Practice Standards fail to recognise diversity among people with disability, or the fact that ‘good support’ looks different for different groups.
5.13
Ms McEwen suggested that the general nature of the Practice Standards, coupled with the focus in the Standards on procedures and records, is likely to result in providers focusing on paperwork rather than staff practice when practice is a more reliable way of determining service quality.
5.14
Anglicare SA recommended that greater consideration be given to an increased focus on ‘effectiveness’ as a measure of quality. If reporting were extended to evaluate customer experience and outcomes—with a particular focus on goal attainment—this would elevate the benefits of the NDIS as a consumer-driven scheme that still achieved necessary levels of safeguarding.
5.15
Purpose at Work queried the level of consultation that was undertaken to develop the Practice Standards, noting that the Department of Social Services may have ignored advice on issues such as how to safeguard the health needs of people who are unable to attend to their needs and lack natural supports in their life.
Understanding the practice standards
5.16
In addition to concerns regarding the efficacy of the Practice Standards, the committee heard that the standards were not always well understood by providers.
5.17
Consultants Leighton Jay, Jessica Quilty and Ann Drieberg called for more capacity building investment to assist providers and staff to understand the Practice Standards. The consultants described compliance with the Standards as perfunctory and noted that there is little attempt made to embed the ‘spirit’ of the Standards in organisational culture. For example, some providers have effectively ‘outsourced’ their quality compliance to other organisations.
5.18
These consultants also observed that while there is guidance available on implementing the Code of Conduct, there is none on the Practice Standards, and as a consequence there is a growing market in workshops and private training for providers. To address this, the Commission could use its powers to ‘demystify, educate and build the capacity of providers’, to enable providers to improve their quality management systems. A workers’ orientation model for Practice Standards would accomplish this outcome.
Concerns about specific elements of the NDIS Practice Standards
Specialist Disability Accommodation
5.19
Particular concerns were raised in relation to Practice Standards relevant to providing Specialist Disability Accommodation (SDA). The Victorian Office of the Public Advocate expressed concern that although the Practice Standards provide that each participant accessing SDA must be able to exercise choice and control and must be supported by effective tenancy management, the Practice Standards do not appear to contain further specification as to what ‘effective tenancy management’ should entail. By contrast, guidelines prepared by Department of Health and Human Services in Victoria provide for matters such as mandatory advertising times and considerations in relation to resident compatibility.
5.20
The Summer Foundation observed that the SDA Practice Standards ‘do not provide adequate guidance about the standard of policies and procedures that an SDA provider must achieve to realise performance outcomes’, leaving providers to determine for themselves how to comply with the Standards, which in turn leads to inconsistency across the sector and to poor performance outcomes.
5.21
The committee also heard that the practice standards should do more to address conflicts of interest in Supported Independent Living and other settings and to create awareness of best practice approaches in the provision of support to people living in group homes.
Other specific concerns
5.22
Specific concerns were also raised in relation to the following elements of the practice standards:
Language and drafting: including that the Standards should use the term ‘person-centred and directed’, rather than ‘person-centred’;
That there are unresolved tensions between requirements that providers respect the principle of 'dignity of risk' and participants' choices ensuring providers maintain appropriate risk management and uphold their duty of care to participants;
Medication; including in relation to workers supporting participants’ requests for medical review with health professionals, and in relation to interfaces with treating doctors and other prescribing health practitioners;
Restrictive practices and behaviour support;
Waste management and infection control;
Addressing violence, abuse, neglect and exploitation, particularly for people who live in their own homes;
Supporting people with a psychosocial disability; and
The classification of early childhood supports as 'high-risk' under the registration framework.
The registration process
5.23
The committee heard a range of concerns in relation to the overall registration process. These include concerns about the administrative burdens placed on providers, and concerns about duplication of requirements for some cohorts of practitioners or organisation and practitioners working in multiple schemes. Submitters also raised issues in relation to:
the time taken by the Commission to review registration applications;
the provision of information about the registration process
the online portal used to submit registration applications; and
difficulties experienced by providers in regional, rural and remote locations when undergoing the registration process.
Administrative burden and cost of registration
5.24
The time, administrative burden, and cost of registration with the Commission were of significant concern to a range of submitters to the inquiry. In particular, the committee heard that the burden and cost of registration was a disincentive to smaller providers obtaining registration with the Commission, and that this contributes to the problem of thin markets, especially in rural, regional and remote areas.
5.25
For example, according to Speech Pathology Australia (SPA), many speech pathologists are choosing not to register with the Commission due to the onerous registration and auditing requirements, and because a number of the compliance requirements are perceived as irrelevant or at least inappropriate for an already well-regulated profession. SPA highlighted the results of a 2019 survey to illustrate this concern:
Of those members who completed our [National Quality and Safeguarding Framework] survey in April 2019 and stated that they were currently unregistered, 23 per cent were formerly registered with the NDIS and when asked ‘why did you cease your registration?’ 88 per cent of this group said it was due to auditing cost; 70 per cent reported concerns about auditing requirements and almost 65 per cent said it was due to the administrative burden. Almost 53 per cent of those who were formerly registered said there was nothing that would make them decide to re-register.
…103 of the survey respondents who were registered providers responded to a question about whether they would re-register under the Quality and Safeguarding Commission. Thirteen percent of these 103 respondents said that they had decided not to re-register. 36 per cent indicated they had commenced formal re-registration, but felt they were unlikely to complete the process and a further 10 per cent indicated that they would have to drop some support groups from their registration. This represents a potential market loss of almost 60 percent. Of those who reported they would need to drop supports, 100 per cent identified this would be Early Childhood Supports.
5.26
The Mental Health Council of Tasmania (MHCT) raised similar concerns that the registration process requires a significant time and cost investment, with some members in larger organisations indicating that it can take up to three full-time equivalent staff to complete the registration process. The Australian Physiotherapy Association also observed that its members have described the registration and auditing processes as costly and time consuming—particularly the auditing process. This is a significant problem for smaller providers who have fewer resources, and providers operating in regional, rural and remote locations.
5.27
Autism Spectrum Australia (Aspect) observed that many providers appear to be encouraging participants to utilise plan management or to self-manage their plans, noting that providers which deliver services to plan-managed or self-managed participants may be able to undertake a verification audit to register, rather than the more onerous certification process. According to Aspect:
[This] means that participants being provided with the exact same service may have different levels of protection depending on how their plan is managed. This means that larger organisations have to follow higher standards of practice, which smaller organisations do not. This leads to inconsistency in implementation of disability practice standards and codes across the disability sector.
5.28
The parents of a young NDIS participant similarly observed that the current system is set up for institutions and large services and does not accommodate a family-centred model for the provision of behaviour support. According to the submitter, onerous registration hurdles and outdated paper-based safeguards appear to ‘force’ the use of large and unsuitable organisations.
Registration with the Commission and registration with other professional bodies
5.29
The committee also heard that, particularly for allied health practitioners, the burden of registration adds additional workload to providers who have already gone through other accreditation processes.
5.30
For example, Occupational Therapy Australia (OTA) noted that to become a registered occupational therapist, an individual must complete an accredited undergraduate degree and meet all registration requirements set by the Australian Health Practitioner Regulation Agency. OTA stated that the Commission’s requirements are unnecessary and duplicative.
5.31
The Australian Association of Social Workers (AASW) expressed its general support for the safety and quality assurance measures associated with registration. However, AASW submitted that its members should not be required to complete the additional registration requirements imposed by the NDIS in relation to support coordination as workers are bound by the AASW Code of Ethics.
5.32
Brain Injury South Australia (BISA) observed that the Commission's registration system appears to have been established in isolation to other service standards established in the disability sector, leading to audit requirements being duplicated for some organisations. BISA suggested merging standards to be selectively applied, according to the services being provided.
Registration in multiple schemes
5.33
Similar concerns were raised in relation to potential duplication in requiring separate registration processes for different schemes. In this regard, submitters proposed that work to align registration across the schemes would be valuable in promoting innovation and national consistency.
5.34
Exercise and Sports Science Australia (ESSA) observed that many allied health providers deliver supports via multiple compensatory schemes, each with their own compliance requirements. The regulatory burden of maintaining compliance across multiple, varying schemes can be ‘overwhelming and costly’, and recommended that the Commission work closely with stakeholders such as the Aged Care Quality and Safety Commission and the Australian Safety and Quality Health Care Commission to ensure a streamlining of quality standards and introduce mutual recognition across relevant schemes.
5.35
The Australian Physiotherapy Association (APA) also indicated that there is considerable overlap between the Commission’s registration requirements and those required under other regulatory frameworks.
5.36
The Queensland Department of Communities, Disability Services and Seniors considered that there is an opportunity for the Commission to proactively consider the intersection of the NDIS Quality and Safeguarding Framework with other regulatory systems and work collaboratively with those systems to minimise duplication and create streamlined processes for providers that encourage entry into the NDIS market. The Tasmanian Government similarly encouraged strategies to mutually recognise similar certification processes, minimising the need for providers to undertake multiple regulatory or administrative processes.
Registration in regional, rural and remote areas
5.37
Concerns regarding the difficulties associated with registration were exacerbated for providers and practitioners operating in regional, rural and remote areas. A number of submitters expressed concern that such disincentives to registration will increase shortages in the NDIS workforce in these areas.
5.38
ESSA observed that it is not unusual for a smaller allied health practice to be the only practice servicing a large rural or remote community covering a large geographic area or with the potential to provide therapy under higher risk groups such as Early Intervention. ESSA expressed concern that high costs create disincentives to registration in rural and remote areas, stating:
AEPs [Accredited Exercise Physiologists] located in rural and remote communities have reported quotes between $6000 and $16,000 for auditing fees, with many suggesting these costs are not financially viable given the small number of NDIS participants they service.
AEPs have noted costs associated with auditor travel and accommodation have a significant impact on the price of audits conducted in rural and remote locations. In response to this concern, many AEPs have reported they are considering not registering as a provider or de-registering and only providing services to plan managed and self-managed NDIS participants.
5.39
Allied Health Professions Australia (AHPA) raised similar concerns, noting that higher costs of registration often have significant adverse impacts on participants’ access to supports. In this respect, AHPA stated:
[T]here are significant inequities that arise from a two-tier system of registered and unregistered providers. Any system that creates significant cost barriers to registration, and then limits the number of providers that a person with disability that is being NDIA-managed can access, is ultimately disadvantaging the participant, not the provider.
…While in some cases these inequities may be addressed by sufficient availability of services, it fails in any case where demand is not matched by the availability of registered providers. In such a case, participants may be forced to self-manage or plan-manage in order to access providers or risk missing out on services.
5.40
SPA suggested that a review of the costs of auditing be undertaken to allow for regulation of the market and costs to providers, particularly in rural and remote areas. Incentives may be required for rural and remote areas to cover the additional costs of travel. Alternatively, or in addition, the auditing process itself could be reviewed to determine if onsite auditing remains necessary.
Length of time to consider applications
5.41
The length of time required to complete the registration process was raised as a significant concern.
5.42
MHCT observed that it may take the Commission up to 6 months to process and finalise a provider’s registration, with limited opportunity for organisations to address any concerns or rectify any issues identified by the Commission before a decision is made. Other submitters recounted significant delays experienced in the registration process, and lack of communication from the Commission as to the reasons for the delay.
5.43
Connectability Australia raised concern that there does not appear to be a set timeframe for the Commission to complete the registration process, despite the fact that providers must adhere to strict guidelines to maintain their registration.
5.44
National Disability Services (NDS) indicated that delays in completing the registration process may be driven by delays in the lodgement of audit reports with the Commission after the report is completed. For example, NDS noted that in a recent meeting of 19 NSW-based providers, none had received notification of registration renewal despite audits having been conducted up to six months previously. NDS asserted that such delays most impact providers seeking registration for the first time and those seeking to register for new registration groups.
5.45
MS Australia stated that there is a perception that the provider registration team is ‘extremely busy’, which may impact on the time taken to complete the registration process. Further, delays can have a negative flow-on effect on the cash flow of providers, as a provider cannot claim for services until registered.
5.46
Cara also expressed concern that the delay in renewal means that there will be two and a half years between audits at a minimum, stating that this ‘devalues the audit process, and does not appear to provide adequate customer safeguarding or quality control’. Cara recommended that timeframes are set for the Commission to process registration renewals, and that audit timeframes be set from the date of the previous audit.
Communication and information about registration
5.47
Submitters called for improved information and communication from the Commission about the registration process, with respect to the progress of applications, registration requirements, template resources and advice on engaging auditors.
5.48
The APA noted that minimal supports and guidance available for smaller providers to navigate and complete the provider registration process. Meanwhile, ESSA indicated that there is uncertainty among allied health professionals as to where to find information about registration, and that it has received requests for assistance from people who found the NDIA and the Commission’s websites unclear and hard to navigate. According to ESSA, this issue could easily be addressed if the NDIA and the Commission worked collaboratively to develop a range of clear and accessible resources to support new entrants to the NDIS market.
5.49
ESSA also recommended that the Commission's website provide access to resources and information:
to help providers in the development of their policies and procedures in accordance with the NDIS Act and associated rules, such as sample policy and procedure templates; and
detailed information about selecting an approved quality auditor.
5.50
BISA noted that while it continuously develops its processes and systems, levels of communication and engagement by the Commission are not sufficient to enable it to ensure it is always meeting prescribed standards. This potentially increases risks for participants and frustrates planning and resource allocation for the audit process.
5.51
The AASW observed that difficulties associated with provider registration are compounded by disparities between the requirements in different states as the implementation of the NDIS unfolds. According to the AASW, there are ‘wide variations’ in the requirements within states, with social workers contacting the AASW to point out that the information provided on registering for some services does not include their state, and they have been unable to obtain a definitive answer when they contacted the NDIA directly.
5.52
Concerns about communication around registration extended to concerns around coordination with the NDIA. AHPA observed what appears to be a lack of coordination in relation to the regulatory intention of the Commission and the structuring of plans by the NDIA, and provided the following example concerning allied health supports for children with disability:
In discussions with the NDIS Commission, it was made clear that in its role as regulator, the NDIS Commission took the position that allied health supports for any age group were therapeutic supports…[which] left providers needing to undertake only a ‘verification’ level audit, a desktop process with lower costs and administrative requirements.
Unfortunately, engagement with practitioners…showed that plans were not being structured this way and that the NDIS was often developing plans so that all supports were funded under the Early Childhood Early Intervention support category…with the result that providers are forced into the more expensive and onerous certification process, or simply choose not to register which impacts the availability of services for participants.
5.53
Recommendations to improve information and communication around the registration process included:
Collaboration between the NDIA and the Commission to develop a range of clear and accessible resources to support new entrants to the NDIS market
Improved access to resources and information on the Commission's website including:
Information to help providers in the development of their policies and procedures in accordance with the NDIS Act and associated rules, such as sample policy and procedure templates; and
detailed information about selecting an approved quality auditor.
Regular provision of a summary of audit findings—including a focus on what types of non-compliance were being identified; and
Consideration of the impacts on providers of undertaking registration and engagement by the Commission with providers to make the registration process more efficient and cost-effective.
Registration portal
5.54
The online application portal was a source of frustration for a range of submitters, who noted a range of technical difficulties, including:
that the portal is complex and 'not user friendly'
systems within the portal do not interface with each other, (appearing to result in requiring providers to input the same information in multiple places)
certain documents are not able to be uploaded in draft form, or for evidence purposes
reports or data run from the portal need to be manipulated and re-written to create meaningful data
there limited explanation within the portal explaining where things are, or the process for using particular aspects of the portal; and
instances where changes in legislation were not reflected in the portal process.
Audits
5.55
Concerns in relation to the audit process focussed on the high costs of auditing and the efficacy of audit practice.
Cost of audits
5.56
The committee heard that the cost of undergoing an audit was excessive, and, for some small providers, prohibitive. Submitters also noted that the already significant direct financial costs charged by approved auditors are exacerbated by the costs to organisations to prepare for an audit and not being able to work with clients during visits by auditors.
5.57
SPA stated that audit costs are not viable for many speech pathology practices which are small or sole trader organisations. The costs can be indirect, related to the time required to prepare for and undergo the audit, and direct costs reported as between $7,000 to $30,000.
5.58
OTA asserted that despite certain improvements to the (re)registration process, auditing requirements remain ‘unnecessarily expensive’, and that the Commission’s approved panel of auditors is ‘anti-competitive’.
5.59
According to a number of submitters, the high costs of audits are attributable in part to the small number of approved auditors. In this respect, OTA noted that the number of approved auditors reduced from 16 to 15 in the 18 months to July 2020. OTA also expressed concern that auditors are based in metropolitan areas, which means that providers in regional, rural and remote areas must bear the additional costs of visiting auditors’ travel and accommodation. SPA also noted an overall lack of registered auditors and that auditors are not present in all states and territories.
5.60
AASW raised concerns both about the cost of audits associated with registration, and 'wide variability in the prices that members are quoted for these audits'. AASW observed that this variability 'inevitably leads to doubt as to the basis on which the rate for the audit was set'.
5.61
The Tasmanian Government noted that there are limited Tasmania-based auditors, which results in additional financial impost associated with travel-related expenses for Tasmanian providers. According to the Tasmanian Government, while there is a collaborative effort by providers and sector peak bodies to minimise costs and coordinate audits, an opportunity exists to grow the capacity of locally based auditors.
5.62
SPA observed that there is little if any regulation of auditors by the Commission after they are approved. Regarding the importance of ensuring auditors are subject to additional regulation, SPA stated:
[T]here is wide variation between the charges of different auditors, but there have also been reports of variability in regard to their expectations of the audits themselves. One of the more common examples of this inconsistency is what types of NDIS clients are counted when a provider is audited. Some auditors have said that all types of NDIS participants, regardless of how they are managed count as NDIS clients, others state that only agency and plan managed do, and some say that it is only NDIA managed that are relevant.
Whilst this may seem inconsequential, it is the number of these clients that determines how many files the auditors will request to see, and indeed the scale of the audit as a whole, with less than 25 NDIS clients being the apparent limit for a smaller audit, and anything beyond that increasing the cost of audit significantly.
5.63
The Mental Health Community Coalition ACT further recommended reviewing the availability of auditing agencies and audit processes to ensure viable price points for small providers and sole traders.
Audit practice
5.64
Submitters raised concern that the audit approach taken by Commission approved auditors may not sufficiently ensure against potential abuse and neglect of people with disability, noting a reliance on formal practice over the quality of supports provided.
5.65
For example, PhD candidate Ms Jade McEwen raised concern that audit processes focus heavily on policies and procedures of organisations and queried whether these match the expectations set out in the Practice Standards. In this respect, Ms McEwen noted that research suggests policies and procedures do not necessarily represent staff actions or the adequacy of the support that is actually provided to people with disability. Ms McEwen stated that consideration should be given to revising the audit process to adopt methods known to be more adequate for monitoring service quality—such as observation and interview.
5.66
In addition, Ms McEwen indicated that current accepted audit systems only consult with a small number of service users. This approach is inadequate for making accurate determinations about the quality of supports for people with intellectual disability, due to the high prevalence of acquiescence among this cohort. Significantly larger cohorts of service users should be engaged in the evaluation of supports, to enhance the accuracy of findings and minimise the risk of inaccurate data.
5.67
The Australian Federation of Disability Organisations (AFDO) noted that the National Disability Insurance Scheme (Approved Quality Auditors Scheme) Guidelines 2018 make provision for consumer technical experts—that is, people with disability who have training, qualifications and skills in auditing—to be included in audit teams. AFDO highlighted positive experiences in overseas jurisdictions where people with disability have acted as auditors of disability services, noting that this approach ‘parachutes’ people with disability into the very heart of upholding disability rights and standards, by giving them the mechanism by which to undertake this work.
5.68
AFDO stated that operationalising the community technical provisions in the NDIS legislation will enable people with disability to be trained to act as auditors and partner with Auditing agencies to audit NDIS Registered Providers, which will provide significant outcomes for people with disability and the NDIS.
5.69
Purpose at Work recommended that the Guidelines governing audits be clarified to:
specify that an audit judgement is against the Standards and/or Outcomes, rather than the specific indictors; and
adopt a less stringent standard for acceptable risk.
5.70
Additional suggestions for improvements in audit practice included:
Requiring providers to demonstrate feedback and complaints compliance
Obtaining actual numbers of participants being supported by any registered organisation from the Commission the day before an audit commences
Implementing ‘spot checks’ of organisations, including on the organisation’s head office and in homes where supports are provided
Checking on an organisation’s procedures for senior staff to regularly visit participants in their homes (rather than relying on reports)
Ensure auditors have appropriate skills and experience
Developing protocols for Auditors to liaise with Government agencies such as the Community Visitor Program when risks for individual participants are alleged or known; and
identifying new metrics for assessing provider performance, including by trusting standards imposed by existing professional organisations.
Strength of the registration process
5.71
The committee also heard that the registration process overall may need strengthening, including in relation to the scope of providers that are required to register with the Commission, and around the strength of standards to be met by providers undergoing the less strict verification, rather than certification audits.
5.72
Spinal Cord Injuries Australia (SCIA) submitted that the jurisdiction of the Commission should be expanded to require all support workers to be registered, with details maintained on a central database. As an example of why there is a need for such a measure, SCIA stated:
SCIA provided individual advocacy for a participant to lodge a complaint at the Commission against a support worker, and it was an extremely disappointing outcome when the Commission could not take action against the support worker due to the support worker not being registered with the Commission.
5.73
The Victorian Office of the Public Advocate (Vic OPA) were concerned that the NDIS Act only requires providers to register if they are delivering ‘high risk’ supports, or if they are delivering supports to agency-managed participants, and observed that these arrangements centre around the level of risk attributed to the service provided, rather than the level of risk associated with the participant and their circumstances. This may mean that some participants at risk of abuse, neglect and exploitation may be able to receive services from providers that are not required to register.
5.74
Noting that the NDIS Quality and Safeguarding Framework suggests that registration is to be complemented with a formal participant risk assessment during plan development, Vic OPA suggested that this may not be occurring in practice. Consequently, the Vic OPA recommended that the NDIA develop an operational protocol for planners and LACs to incorporate a ‘formal and holistic assessment of participant risk’.
5.75
The Community and Public Sector Union (CPSU) noted that its members had expressed concern that some providers have been registered despite breaches of the NDIS Act and auditors deeming them unsuitable.
5.76
With respect to the verification process, Connectability Australia observed that the verification process is not sufficiently robust, especially for sole traders delivering support coordination services.
5.77
The Australian Lawyers Alliance highlighted that the regulation of providers is increasingly complex with the rise of platform-based providers, noting that the Commission has a 'difficult task' in ensuring the accountability and quality control of work standards when dealing with outsourced, contracted-out service provision.
Commission view
Practice standards and audit process
5.78
In September 2020 the then Commissioner defended the efficacy of the practice standards and the associated audit process, stating:
The practice standards are framed in terms of outcomes for people with disability, and there's an accompanying set of quality indicators that point to the evidence that those auditors need to look at in determining whether or not a provider has complied with those standards. So the auditing process is quite central in understanding what practice is happening and also in ensuring that providers are changing their practices to deliver better quality outcomes.
5.79
The Commissioner also noted that many providers were still going through the process of re-registration, and the Commission was continuing to work with providers to address issues identified during the associated audit.
5.80
With respect to concerns raised in relation to the Practice Standards for Specialised Disability Accommodation, in September 2021 the Commission advised that it had commenced an own motion inquiry into supported disability accommodation. Among a range of matters, the inquiry's terms of reference require the identification of models of best practice for consideration by the Commission that may inform future amendments to relevant practice standards and quality indicators.
5.81
The Commission also released the NDIS Workforce Capability Framework in October 2021. The Commission described the document as articulating:
…the Australian Government’s expectations about the attitudes, skills and knowledge of all workers funded under the NDIS [and]… translates the NDIS principles, Practice Standards and Code of Conduct into observable behaviours that service providers and workers should demonstrate when delivering services to people with disability.
5.82
At the time of drafting, it was not mandatory for providers to use the Framework.
Registration timeframes
5.83
In September 2021, the Commission provided further information about the timeframes for deciding applications for registration, noting that registration processing times are:
dependent on a number of factors including the volume of applications submitted to the NDIS Commission, factors that rely on the actions of providers and auditors, and any issues arising from the provider’s audit or suitability assessment of the provider or its key personnel.
5.84
Factors relying on actions of providers and auditors included whether the application required following up by the Commission due to incomplete information being provided, or in relation to issues raised through an audit or suitability assessment. The Commission may also hold an application 'where it is aware that another regulatory body may be considering action against a provider or its key personnel that would also influence the NDIS Commission’s consideration of the provider’s suitability'.
5.85
The Commission stated that it 'routinely monitors application processing times', and noted that an increase in processing times in 2020 was due to a number of reasons including, in particular, the substantial volume of applications received (alongside a high volume of applications for variations to existing registrations), and impacts of the COVID-19 pandemic, including rescheduling or delaying audits. The Commission highlighted that the substantial increase in the volume of applications received was in part due to changes to the rules governing provider registration – both in terms of providers who had waited to submit applications while the rules were being amended and because changes to the rules allowed more providers to undergo the less onerous verification audit process, making registration more attractive to some providers.
5.86
The Commission also listed a number of actions taken to support more timely assessment of applications including:
adjustments to assessment processes;
employing additional staff and engaging extra resources to process a backlog of delayed applications;
enhancing the online application form – including to better guide applicants to provide required information and documents at the time of applying for registration; and
further enhancements to its operating system which it intends to release later in 2021.
Accounting for oversight by other regulatory bodies
5.87
In its initial submission, the Commission noted that its registration process sets out different requirements to that imposed, for example, by the Australian Health Practitioner Regulation Agency:
The Health Practitioner Regulation National Law essentially establishes ‘protected titles’ to ensure that only registered health practitioners who are suitably trained and qualified are able to use those titles. The registration process assesses the qualifications, experience, criminal history and professional indemnity insurance arrangements of individual practitioners. It does not register or regulate corporate entities established by health practitioners, nor does it consider the activities of the practitioner outside the health context, and particularly the ability of the practitioner to work with a person with a disability to achieve their personal outcomes and goals within the context of the NDIS.
The NDIS Commission’s provider registration process is proportionate, applying regulation commensurate to risk. For individual practitioners where there are existing regulatory arrangements such as through AHPRA, recognition of this is embedded in the registration design. If a provider seeking registration with the NDIS Commission is associated with a corporate entity, the NDIS registration process also:
(i)
applies the NDIS Practice Standards – outlined in Part 6 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 – which enable an assessment of the systems in place to deliver services to prevent harm and promote the rights of NDIS participants to receive safe and quality supports; and
(ii)
includes a suitability assessment of key personnel (defined in section 11A of the NDIS Act).
Committee view
5.88
The committee acknowledges the concerns and suggestions raised by submitters and witnesses in relation to the Commission's registration process, including that the Practice Standards may benefit from review to ensure they are fit for purpose and that registration with the Commission can impose significant administrative and cost burdens on some providers.
5.89
The committee welcomes the range of measures taken by the Commission to improve registration processing times, in particular the increased levels of staff to support this process. The committee has more to say about staffing levels of the Commission in Chapter 9. The committee also welcomes the Commission's advice that it continues to improve on the online application form for registration and its operating system. The committee hopes this will lead to reduced administrative burden and frustration for providers, many of whom raised concerns in relation to these systems as they were initially set up by the Commission.
5.90
The committee considers that the Commission is making a sincere and concerted effort to listen and respond to concerns raised by providers about the registration process. However, the committee remains concerned that a number of issues raised in relation to the costs associated with the registration process do not appear to have been addressed, in particular in relation to the cost of conducting audits. It appears the correct balance is yet to be struck between ensuring appropriate quality of supports through the registration process and ensuring that the process does not continue to be a disincentive to providers registering with the Commission.
5.91
This issue has added urgency considering the significant concerns about thin markets for particular allied health supports and in general for regional, rural and remote areas. The committee therefore considers a review of the provider registration process is required to ensure it does not impose unnecessary burden on current and prospective NDIS providers, while also ensuring quality and safety of services provided.
5.92
The committee recommends that the Australian Government conduct a review of provider registration requirements, with a view to removing unnecessary burden while preserving quality and safety. The review should consider:
the adequacy of the current graded requirements for small providers and providers which have met quality and safeguarding provisions as part of other registration processes
the classification of certain supports as 'high-risk' for the purposes of requiring registration (for example, early childhood supports)
the impact of registration requirements in specific areas of workforce shortages, such as behaviour support, and other allied health, and in regional rural and remote areas; and
the adequacy of guidance for providers about the registration process.
5.93
The committee recommends that the Australian Government review the costs of registration audits for providers, with specific reference to the cost implications for smaller providers and providers in regional, rural and remote locations.
5.94
Following the above review, the committee recommends that the NDIS Quality and Safeguards Commission, in consultation with providers and auditing bodies, establish and publish clear guidelines for determining registration audit costs.
5.95
The committee further notes that these issues were the subject of recommendations made by the committee in 2019. The committee also continues to consider these matters in relation to its ongoing inquiry into the NDIS workforce.
5.96
The committee also considers there is particular value in the Commission implementing measures to support people with disability being more involved in the auditing process.
5.97
The committee recommends that the Australian Government develop a strategy for increasing the number of people with disability who are involved in registration auditing. This strategy should be co-designed with people with disabilities, their families and advocates, and the disability sector.
Worker screening
5.98
The bulk of evidence received during the committee's inquiry in relation to worker screening discussed arrangements during the phased establishment of the Commission, noting the anticipated commencement of a national worker screening model from February 2021. As a result, a number of the issues outlined in evidence may have been superseded by the new national arrangements. Nevertheless, the committee briefly outlines key concerns that arose from the evidence received.
Implementing and understanding the new national model
5.99
A number of submitters raised concerns about delays in implementing the national model, while others commented on difficulties that had arisen with respect to interim worker screening arrangements, such as perceived poor communication between state and federal bodies. Cara, for example, recommended that national worker screening arrangements be expedited to provide consistent worker screening and clearance across jurisdictions, and information-sharing protocols be established between the Commission and worker screening units.
5.100
Submitters also emphasised the importance of providing clear information about the new model. For example, Queenslanders with Disability Network (QDN) noted that there was currently 'limited knowledge and significant misunderstanding around what worker screening means for people with disability and their support workers' and expressed strong support for a communication strategy around why worker screening is important, and what the move to a nationally consistent framework means for people with disability. QDN indicated that such a strategy should include:
developing resources with tips on how people with disability should approach having a conversation with their support workers about applying for worker screening;
alternative processes for applying for a worker screening check for people who do not have digital access and skills or for those who have poor literacy skills;
developing specific communications strategies for Aboriginal and Torres Strait Islander and Culturally and Linguistically Diverse people with disability, their families and providers; and
information sessions for NDIS participants in the lead up to the start of the new worker screening system starting.
5.101
Following the implementation of the national worker screening model, the committee heard from providers that the screening process took considerable time to conduct, apparently even for workers who did not have direct client-facing responsibilities.
5.102
At a public hearing in Caloundra in June 2021, Ms Kerrie Mahon, from Montrose Therapy and Respite Services told the committee that the process 'is highly protracted and has caused disruption to our services, to the point that it's caused stability issues for our organisation and affected participants'. Ms Mahon went on to explain that the issues with worker screening in Queensland in part arose from the lack of pre-emptive screening before a person is employed by a provider and recommended that there be an option for individual workers to apply for screening independent of being employed.
Unregistered providers
5.103
A significant concern raised in submissions was in relation to the absence of worker screening for unregistered providers. With the exception of standard police checks, providers who do not seek registration with the Commission are not required to undertake worker screening. A number of submitters, however, considered this to be a gap in safeguarding the rights of people with disabilities, and considered that screening should be undertaken for all workers.
5.104
Mr David Moody, then Chief Executive Officer, National Disability Services (NDS), expressed concern that the absence of worker clearances for all workers (whether engaged by a registered or non-registered provider) places additional weight on the Code of Conduct to deliver appropriate supports. Mr Moody stated that all workers delivering face-to-face supports should be required to hold a worker clearance, stating:
People with disabilities should be able to have confidence, whether they're receiving support from registered or unregistered providers, that workers directly responsible for providing the support have been appropriately screened.
5.105
Mr Moody acknowledged that extending worker screening requirements to unregistered providers will not, on its own, end exploitation and neglect in the disability sector, and that other mechanisms may be needed to ensure the quality and safety of supports. He also acknowledged the importance of maintaining choice and control for participants, families and carers. However, Mr Moody asserted that registration—when appropriately applied—enhances the likelihood that workers will have appropriate qualifications, values and behaviours, and will be vetted for criminal history.
5.106
Some submitters also queried the adequacy of the processes for police checks to ensure safety and quality of supports. For example, Spinal Cord Injuries Australia (SCIA) stated that police checks should be required annually due to the nature of personal care work and a large transient support worker labour force. SCIA further stated that to ensure the quality and safety of services and supports, the Commission should have the power to set guidelines for service providers about the types, levels, frequency and historic timeframe of any criminal or reportable activity a support worker may have been involved in to be considered for employment with the sector, and that the Commission should have the power to review and make recommendations about the effectiveness of police checks.
5.107
Another submitter, 121 Care, recommended that providers be able to request an investigation by the Commission in relation to workers who have been terminated in situations that would not be captured in a police check, for example ‘crossing professional boundaries’.
Other concerns about worker screening
5.108
Additional concerns raised prior to the introduction of the new screening process included:
that the intentions for a national worker screening database may not be sufficient to ensure effective screening of workers who operate across funding schemes and under multiple regulators
the effectiveness of worker screening arrangements for ensuring quality and safety in services provided by subcontracted workers
the need for stringent mechanisms are required to ensure proper experience and qualifications of staff and providers involved in the delivery of Supported Independent Living supports; and
calls for increased regulation over the movements of employees who move freely between organisations.
Commission view
5.109
Since the National Standard for NDIS worker screening commenced in February 2021, the Commission has provided information to providers and participants about the new model on its website. This information highlights that self-managed participants are able to ask workers providing NDIS supports and services to them to demonstrate they have a clearance, or to ask them to obtain a clearance by undergoing an NDIS Worker Screening Check.
5.110
In relation to the Commission's oversight of unregistered providers, during one of the committee’s public hearings, the former Commissioner stated:
We do also regulate unregistered providers, which are required to comply with the code of conduct, and we work to support people with disability and ensure their rights are upheld. We do this by educating and informing people with disability about their rights and the obligations of providers by responding to complaints, by overseeing the management of incidents by providers, by educating workers about the rights of people with disability by taking compliance and enforcement action, by playing a leadership role in the national approach to reducing and eliminating restrictive practices and also by playing a significant role in the national approach to worker screening.
5.111
The Commission also provided information to the committee with respect to the requirement for employers to verify a worker's application for an NDIS worker screening check (which results in workers being unable to pre-emptively apply for a worker screening check):
Employers may factor into their recruitment processes time for prospective employees to apply for and receive an outcome of their application for an NDIS Worker Screening Check. Further, employers have flexibility in relying on acceptable checks under transitional arrangements where possible, rather than requiring all prospective employees to apply for an NDIS Worker Screening Check and obtain an NDIS Worker Screening Clearance.
The policy framework covered in the [Intergovernmental Agreement for Nationally Consistent Worker Screening for the NDIS] concerning verification has been implemented by the Commonwealth, states and territories and has the effect of ensuring that NDIS Worker Screening is not extended to other sectors and those not involved in the delivery of NDIS supports and services. Further, NDIS Worker Screening was designed to provide an additional preventative safeguarding measure for NDIS participants and therefore may not be fit for purpose if it were to be extended in an uncontrolled manner.
5.112
The Commission also noted that the Rules and some states and territories provide for exceptions which would allow a worker without a worker screening check to commence in a role that would otherwise require one, such as when a worker holds an acceptable check under transitional arrangements, or if the worker has submitted an application and is appropriately supervised. However, these exceptions vary across the states and territories, and workers in the process of obtaining an NDIS worker screening clearance are unable to commence in a relevant role in Queensland, Victoria and South Australia.
5.113
The Commission flagged continuing work in relation to implementing national worker screening in its current Corporate Plan, including:
work with the Department of Health, the Department of Social Services, the Aged Care Quality and Safety Commission and the Department of Veteran Affairs on aligning worker screening arrangements across care sectors to the NDIS; and
supporting the operation of the NDIS Worker Screening Check, including maintaining the NDIS Worker Screening Database and providing information to state and territory worker screening units in accordance with information sharing protocols.
Committee view
5.114
The committee welcomes the implementation of the National Standard for worker screening and notes the significant benefits that will flow from the new national approach. The committee anticipates that a number of concerns raised by submitters about the operation of worker screening during the transition phase will be addressed by the adoption of this model. However, noting the early stage of this model, and the range of concerns raised in evidence to the inquiry, the committee considers it would be appropriate to review the National Standard for worker screening after a sustained period of operation, to evaluate its contribution to ensuring quality and safety of NDIS supports and its impact on the NDIS provider market. The committee further considers that the concerns in relation to arrangements for unregistered providers should be considered by the Commission in this review.
5.115
The committee will also continue to monitor the implementation of the National Standard for worker screening, including through its current inquiry into the NDIS workforce.
5.116
The committee recommends that the NDIS Quality and Safeguards Commission, within 3 years of the commencement of the national worker screening arrangements, evaluate:
the adequacy and effectiveness of these arrangements in promoting safety and quality for NDIS participants, in particular, NDIS participants who receive supports from unregistered providers; and
the impact of worker screening arrangements on the NDIS provider market.
5.117
The committee heard that there have been significant delays in the new worker screening processes in some jurisdictions. Evidence to the committee suggested that the inability of prospective workers to obtain screening prior to being employed appears to be a significant factor in delays in the screening process in at least some states, and that these delays are causing disruption for providers and participants. While the committee notes that provision has been made in some states for workers to commence in a role while their check is being assessed, the lack of uniformity in approaches remains of concern.
5.118
The committee recommends that the NDIS Quality and Safeguards Commission work with states and territories to resolve delays in NDIS worker screening including by promoting consistency across jurisdictions in relation to the ability of workers to commence work under supervision once their employer has endorsed their screening application.