NDIS Q&S Commission - Volume 10, Part B

The DRC recommendation

The NDIS Quality and Safeguards Commission should improve its internal procedures for monitoring reportable incidents, paying particular attention to:

a) communicating feedback about the quality of providers’ handling of incidents

b) seeking clarification from providers, National Disability Insurance Scheme participants and their families when deficiencies or evidentiary gaps are identified, particularly where participants have been harmed or are at immediate risk of harm

c) the efficiency of the online portal used by providers to report incidents.

Controlling volume of reportable incidents to focus on risk

The DRC recommendation

The Minister for the National Disability Insurance Scheme should, in consultation with states and territories, amend the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) to:

a) introduce ‘class or kind’ determinations exempting certain registered providers from notifying less serious types or categories of reportable incidents where they have demonstrated a satisfactory level of competence in managing and investigating incidents

b) enable the NDIS Quality and Safeguards Commission to conduct audits to assess compliance with class or kind determinations.

Why we are concerned about this recommendation

Such an approach should not increase the tolerance of reportable incidents or take focus away from the urgent need to reduce and eliminate them.

The DRC recommendation

The NDIS Quality and Safeguards Commission (NDIS Commission) should establish a panel of independent investigators with strong credentials in relation to safeguarding, human rights and investigative practice. The NDIS Commission should seek regular feedback from providers about the quality of independent investigators’ work.

The DRC recommendation

The NDIS Quality and Safeguards Commission should develop model procedures for National Disability Insurance Scheme (NDIS) providers, including:

a) for frontline workers about recognising and reporting incidents, with clear definitions around what incidents must be reported and when

b) for incident management incorporating guidance on undertaking causal reviews of incidents and preventive action, as well as implementing wider system improvements

c) for complaints articulating person-centred approaches for managing and resolving complaints and providing feedback, and requiring supports for a participant who needs to participate in a complaints process

d) that address the need to consider the impact or harm caused to a participant and provide guidance on forms of redress that should be offered to people with disability involved in incidents and complaints.

These procedures should be developed in consultation with people with disability, family members, advocates and NDIS providers.

Why we support with co-design process

The recommendation refers to consultation, however we strongly believe adopting genuine co-design processes that include people with disability in decision making leads to better outcomes.

The DRC recommendation

a) The NDIS Quality and Safeguards Commissioner should issue a guideline, by notifiable instrument, addressing accessible and responsive complaint handling and investigative practice. The guideline should:

• outline the core components of an accessible and responsive complaint handling and investigative practice involving people with disability, consistent with Recommendation 11.5
• be co-designed by people with disability and their representative organisations and involve consultation with National Disability Insurance Scheme (NDIS) provider representatives.

b) The Minister for the NDIS should, in consultation with states and territories, amend the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) and National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth) to include recognition of, and a requirement for compliance with, the guideline.

The DRC recommendation

a) The Minister for the National Disability Insurance Scheme (NDIS) should, in consultation with states and territories, amend the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) and National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth) to include a requirement for NDIS providers to consider redress and forms of support to an NDIS participant where the NDIS Quality and Safeguards Commission (NDIS Commission) forms the view that the service provider bears responsibility for the violence, abuse, neglect or exploitation experienced by the NDIS participant.

b) The NDIS Commission should:

• provide practical advice on suitable forms of redress when making the guideline on accessible and responsive complaint handling and investigative practice (see Recommendation 10.15)
• whether it has power to incorporate in enforceable undertakings a requirement that service providers afford redress to NDIS participants in appropriate cases. If not, it should seek the necessary powers and be prepared to use them where appropriate.

The DRC recommendation

In developing and publishing guidance about best practice governance models for National Disability Insurance Scheme (NDIS) providers, the NDIS Quality and Safeguards Commission should:

a) include safeguarding indicators for use by NDIS providers based on the sample indicators outlined in Table 10.8.3

b) provide guidance encouraging governing bodies of NDIS providers to have regular access to specialist safeguarding advice in considering issues arising from complaints and incidents.

The DRC recommendation

The NDIS Quality and Safeguards Commission should:

a) ensure complainants are updated appropriately throughout key stages of the complaint process and their expectations managed

b) ensure triage and streamlining models effectively prioritise complaints requiring a more immediate response

c) clearly define risk categories, timeframes and procedures for handling these complaints

d) establish realistic and achievable metrics for measuring its performance with respect to timeframes.

The DRC recommendation

The Minister for the National Disability Insurance Scheme should, in consultation with states and territories, amend the National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth) to empower the NDIS Quality and Safeguards Commission to require a provider to carry out an investigation into a complaint and report on its contact with the complainant and its findings.

Why we are concerned about this recommendation

This recommendation would require strong oversight and should be backed by a significant portion of independent investigations to mitigate the risks associated with providers investigating themselves.

The DRC recommendation

The NDIS Quality and Safeguards Commission should further enhance the accessibility of its complaint handling processes, having regard to the following steps:

a) making information simple and easy to navigate

b) adopting a ‘no wrong door’ approach

c) accommodating people’s preferred means of communication and making other adjustments as needed

d) assisting people to secure advocacy and other supports

e) identifying people at risk of abuse

f) implementing a strategy for ‘hard to reach’ groups

g) ensuring complainants are involved in complaint processes and when this is not possible, recording the reasons for their non-involvement

h) examining whether providers are supporting people with disability to access advocates when they make a complaint and where providers conduct investigations.

The DRC recommendation

a) To enhance the registration process, the NDIS Quality and Safeguards Commission (NDIS Commission) should:

• develop and implement a framework for sharing relevant information with quality auditors
• conduct a comprehensive review of the provider registration process focused on:
  • the process for smaller providers seeking to renew their registration
  • the NDIS Commission’s operating system (COS) portal and online application forms used to submit registration applications
  • any duplication of requirements for cohorts of practitioners or organisations working within multiple schemes and for recognising other forms of accreditation
  • areas where there are workforce shortages or ‘thin provider markets’, and encouraging the use of easier and more cost-effective certification audit processes in these areas
  • whether the number of approved quality auditors accredited for remote auditing and assessment should be increased
• collect and publish de-identified data about quality audit outcomes to inform best practice
• alert quality auditors to known systemic issues across the NDIS provider market.

b) The Minister for the National Disability Insurance Scheme should, in consultation with states and territories, amend the National Disability Insurance Scheme (Protection and Disclosure of Information—Commissioner) Rules 2018 (Cth) to clarify the NDIS Commission is able to share relevant information with quality auditors.

The DRC recommendation

a) The Minister for the National Disability Insurance Scheme should, in consultation with states and territories, amend the Core Module of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) to issue further standards that address complaint handling and incident management.

b) The NDIS Quality and Safeguards Commissioner should amend the Core Module of the National Disability Insurance Scheme (Quality Indicators for NDIS Practice Standards) Guidelines 2018 (Cth) to strengthen the requirements relating to complaints and incidents (see Table 10.10.2), accountable governance (see Table 10.10.3), and worker capacity and training (see Table 10.10.4).

The DRC recommendation

The NDIS Quality and Safeguards Commission (NDIS Commission) should collect and publish data relating to trends and risks identified within the unregistered provider market, including a breakdown of:

• the number of complaints received involving unregistered providers
• quality and safety issues identified by the NDIS Commission through its oversight of complaints in relation to unregistered providers
• the number of compliance matters and investigations commenced by the NDIS Commission in relation to unregistered providers
• the number of unregistered providers involved in contraventions identified by the NDIS Commission and the type of breach identified
• the number and type of compliance and enforcement actions taken in relation to unregistered providers
• number of workers engaged by unregistered providers involved in complaints, compliance matters or investigations without a worker screening clearance at the time of the alleged conduct or issue.

The DRC recommendation

The NDIS Quality and Safeguards Commission should, by December 2024, improve access to behaviour support practitioners by:

a) providing incentives for practitioners and National Disability Insurance Scheme providers to provide behaviour support services, including in regional and remote areas in which ‘thin markets’ operate

b) forming a partnership with First Nations leaders from the disability and employment services sectors to develop a recruitment strategy targeting First Nations people and others with experience in working with First Nations communities to address behaviour support shortages in regional and remote areas

c) exploring with behaviour support practitioners, service providers and people with disability, the merits of an ‘on-the-job’ professional development and accreditation model for behaviour support practitioners

d) creating a publicly accessible list of all individual behaviour support practitioners.

Why this recommendation should go further

It is likely that stronger measures will be required to increase the availability of behaviour support practitioners and to improve the quality and implementation of Positive Behaviour Support plans.

The DRC recommendation

The NDIS Quality and Safeguards Commission should review its compliance and enforcement policy and in doing so have regard to:

a) where appropriate, transitioning its primary compliance approach from educational and capacity building strategies to stronger compliance and enforcement activities

b) increasing its face-to-face engagement with National Disability Insurance Scheme (NDIS) participants who are at greater risk of experiencing violence, abuse, neglect and exploitation, and site visits to speak with providers and workers

c) increasing the use of its enforcement powers and monitoring tools in relation to NDIS providers that:

• have a history of non-compliance or repeatedly fail to meet their obligations to provide safe and quality supports and services
• have demonstrated a disregard for the safety of people with disability
• have caused serious harm to a person or people with disability

d) the availability of enforceable undertakings and compliance notices to address non-compliance by NDIS providers.

Why this recommendation should go further

Providers and/or individuals that have caused serious harm to a person or people with disability should be prosecuted.

The DRC recommendation

a) In addition to data currently published, the NDIS Quality and Safeguards Commission should publish in quarterly activity reports and annual reports:

• ‘disaggregated data’ relating to complaints, reportable incidents and behaviour support, having regard to suggested data in Table 10.13.1
• a comprehensive analysis of data trends, identifying systemic issues relating to the quality and safety of National Disability Insurance Scheme (NDIS) supports and services
• ‘operational performance data’ relating to complaints, reportable incidents, compliance and enforcement, having regard to the suggestions in Table 10.13.2.

b) The Minister for the NDIS should, in consultation with states and territories, amend the reporting requirements in the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) to enable provider investigation outcome data to be collected on a routine basis from NDIS providers.

The DRC recommendation

The NDIS Quality and Safeguards Commission (NDIS Commission) should establish a dedicated intelligence unit within the NDIS Commission to enhance its capacity to collect intelligence, identify and respond to higher risk participants, take action relating to providers where necessary and identify systemic issues.

The DRC recommendation

a) The Minister for the National Disability Insurance Scheme (NDIS) should, in consultation with states and territories, amend the National Disability Insurance Scheme (Protection and Disclosure of Information—Commissioner) Rules 2018 (Cth) to include safeguarding bodies with the type of functions described in Table 10.13.3 as ‘prescribed bodies’ for the purposes of section 67A(1)(db) of the National Disability Insurance Scheme Act 2013 (Cth).

b) States and territories should introduce legislative and administrative arrangements that would allow prescribed bodies in each jurisdiction to exchange risk-related information with the NDIS Quality and Safeguards Commission, where the exchange of information will promote the safety of NDIS participants who may be at risk of experiencing violence, abuse, neglect or exploitation.

Recommendation 10.29: Establishing a First Nations Unit

Governments should be guided by First Nations representative organisations that hold the expertise on this matter

The DRC recommendation

The NDIS Quality and Safeguards Commission should establish a dedicated First Nations Unit to develop its engagement with and understanding of the issues facing First Nations participants in the National Disability Insurance Scheme, particularly in regional and remote communities.

The DRC recommendation

The NDIS Quality and Safeguards Commission should enhance its engagement and capacity building activities with National Disability Insurance Scheme (NDIS) providers by:

a) routinely sharing data analysis and insights from its oversight activities with NDIS providers to promote improvements in the quality and safety of services

b) facilitating regular industry forums and communities of practice to raise and address critical safeguarding practice issues and share best practice

c) expanding its training offerings to NDIS providers, particularly in relation to fulfilling their obligations to recognise, report and investigate incidents and deal appropriately with complaints

d) developing a training and resources hub for use by people with disability and their supporters, as well as the NDIS provider workforce.

Why this recommendation should go further

People with disability should be centrally involved in co-designing and facilitating training.

The DRC recommendation

The Australian Government and state and territory governments should amend the Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme to clarify the role of the Australian Federal Police (or other national bodies) in monitoring new charges relating to disability support workers who hold a clearance, and sharing information with state and territory worker screening units.

The DRC recommendation

The NDIS Quality and Safeguards Commission (NDIS Commission) should, in consultation with state and territory worker screening units, develop an operational framework to guide the efficient and effective provision of information to worker screening units to inform their assessments. In doing so, it should establish criteria to inform the provision of initial monitoring advice to screening bodies to promote consistency and help better inform initial screening actions. Such advice could include:

• date of the incident
• duration of alleged conduct (if applicable)
• description, nature and circumstances of the matter
• whether the police are involved (noting that the screening unit will only be alerted via the monitoring system at the point at which charges are laid)
• critical information relating to the available evidence (for example, an investigation report from an employer)
• information relating to the NDIS Commission’s oversight of the matter (for example, whether the matter is open, closed, substantiated or not and whether further outcomes are pending).

The DRC recommendation

As part of the National Disability Insurance Scheme worker screening review, the Australian Government, and state and territory governments, should consider the adequacy of information sharing arrangements with regard to:

a) the ability of worker screening units to obtain relevant risk-related information from bodies outside of their operating jurisdiction to inform their assessments

b) the ability of the NDIS Quality and Safeguards Commission and worker screening units to obtain and share relevant risk-related information (such as misconduct and disciplinary investigation outcomes) held by other safeguarding and complaint handling bodies to inform worker screening decisions.