Under the new legislation, the NDIA has more
powers when conducting eligibility reassessments.
Let's explore how this new legislation impacts the NDIS participants.
What is an NDIS eligibility reassessment for NDIS participants?
An eligibility reassessment involves the NDIA evaluating whether a current participant still qualifies for the NDIS.
This assessment checks if the individual continues to meet the residency and disability or early intervention criteria.
If the NDIA decides to review a participant’s eligibility, they will inform the participant and allow them time to respond.
Eligibility reassessment is not a new process; the NDIA has always had the authority to reassess an individual's eligibility for the Scheme.
However, recent legislation has established a legal framework for the NDIA to request information from the participant to facilitate the process of revoking
access if the information is not provided.
What new powers does the NDIA possess
under the recent legislation?
The revised NDIS Act authorises the Agency to request
information or assessments from a participant for the purpose of
eligibility reassessment. The requested information must be
'reasonably necessary' (a phrase that appears central to the
NDIS's approach) for making an eligibility decision.
The NDIA can mandate that assessments be conducted in an approved format
or by a qualified professional.
The Agency may only ask a participant to undergo an assessment if it
provides information the NDIA 'cannot otherwise reasonably obtain.'
If a person fails to comply with a request for information within the specified
time frame, the NDIA can revoke their access to the Scheme. However, the
NDIA must also assess whether it was reasonable for the person to
comply (further details on this later).
What is the timeframe provided to participants to comply
with requests for information?
The NDIA’s Operational Guidelines list two timeframes the Agency might
give people:
If the NDIA is requesting assessments or additional information, then
the legislation says that the participant must be given a
minimum of 90 days, but the NDIA has the option of giving
longer time limit for a participant.
If the NDIA has reasonable evidence to believe a person is no longer eligible,
they will give the participant 28 days to respond. NDIS Operational Guidelines state that a letter will be sent explaining the reasons for the perceived ineligibility. However, it is noted informally that many participants receive generic letters that fail to specify which gaps in their evidence must be addressed.
The strange thing with these timelines is that the amended NDIS Act outlines
the 90-day minimum timeframe for requests for information or assessments
(as clearly as legal jargon allows). However, the 28-day timeframe is not
mentioned in the legislation. This issue was a significant topic in the recent Senate Estimates.
The legislation does not define the timeframes for eligibility reassessments when specific information is not requested, making the 28-day timeframe potentially challenging. We all understand that securing a specialist appointment and report within 28 days is impractical due to wait times.
Interestingly, according to Senate Estimates, the NDIA appears open to
granting extensions for either the 90-day or 28-day period. The
Operational Guidelines advise individuals to contact the NDIA to explain
why they need more time and how much they require. It also states that the NDIA ‘generally’ grants only one extension, requiring individuals to justify any further requests.
Individuals need to understand that they can request an extension. Ideally,
NDIA’s communications should be straightforward to understand. However,
Providers must help disseminate this information to participants going through eligibility reassessments.
Under what circumstances would it be justifiable for a
participant to not have adhered to the request for information
deadline?
The Act outlines the criteria that the NDIA must apply when determining if it was reasonable for a participant to submit information or an assessment within the specified time period. If it was deemed unreasonable, the individual's status as a participant cannot be revoked.
The NDIA must consider:
The duration of time given
If the individual has previously failed to submit information
The time elapsed since the NDIA last obtained information
pertinent to assessing a person’s eligibility
If the delay was beyond the participant’s control because
someone else failed to provide information on time (for instance, if the
treating health professional didn’t complete the report by the deadline)
Any additional criteria outlined in the NDIS Rules (which have not been
established yet!)
Any other factors the NDIA deems relevant.
What is the timeframe for the NDIA to reach a decision on an
eligibility reassessment?
According to the new legislation, after the participant submits the
required information or assessment, the Agency has 14 days to determine
whether the person remains eligible for the NDIS or asks for additional
information.
Is it possible for the participant's treating
health professional to complete the
assessments and reports?
Yes. The NDIA will not determine who should complete a report or assessment.
However, they may mandate that assessments be conducted by a ‘suitably
qualified professional.’ As a result, participants may be able to select
the practitioner but not the profession.
Who is responsible for the expenses of assessments or reports for
eligibility reassessments?
The legislation and Operational Guidelines do not specify funding for reports or
assessments.
When medical professionals perform assessments, individuals may be
eligible for reimbursement from Medicare. However, if an allied health practitioner or another person conducts the assessment, it’s uncertain
when and if it can be claimed from an NDIS plan.
People undergoing an eligibility reassessment should probably discuss
this with the NDIA directly and get advice relevant to their circumstances.
Can people appeal a decision made by NDIA to revoke
eligibility of a participant?
Yes. If an individual's access to the NDIS is revoked, they can request an
internal review of that decision.
If they remain unsatisfied with the outcome after the internal review, they can refer the matter to the new Administrative Review Tribunal.
A minor procedural change under the new legislation is that individuals
appealing the revocation of their eligibility cannot submit a new access
request until the review process is concluded.
Who among the participants will require an
eligibility reassessment?
We lack any formal indication regarding which groups of
participants might be asked for eligibility reassessments. The Act
does not specify any criteria that the NDIA should use to determine whether to
carry out an eligibility reassessment, although this might be included in
future Rules.
Most eligibility reassessments by NDIA involved children aged between 5 and 9. Typically, children are referred to the NDIA for eligibility reassessments by their Early Childhood Partner.
The Operational Guidelines also say that when a child who accessed the
NDIS with a developmental delay turns 6, the kid’s eligibility will be
revoked unless the NDIA can establish that they meet the early
intervention and/or disability requirements.
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