The government recently disclosed the Transitional Rules, which outline what constitutes 'NDIS support'.
The new law has significant consequences for access, planning, plan review, and how participants can utilize their plan.
The rules are considered transitional because they require collaboration between the federal government and the states and territories to finalize them. Historically, reaching agreements between the states, territories, and federal government has been challenging. Therefore, the Transitional Rules will remain in effect starting October 3rd until the agreement is sought.
The Transitional Rules consist of a list of supports that are eligible or ineligible for funding under the NDIS unless a substitution rule applies. The substitution section of this article provides more information on this rule.
This article examines the impacts of the lists in the new law, focusing on key differences from the original version, the substitution rule, and the government's stance on funding.
What makes these new Rules so crucial?
The new law has significant ramifications for almost every aspect of a participant's NDIS journey due to the redefined NDIS support criteria.
Key changes include:
Individuals applying for the NDIS must demonstrate their need for 'NDIS support.'
People will only receive funding for non-NDIS support in their plan if they have been approved through the replacement process.
Flexible NDIS funding can only be used for non-NDIS support with NDIA approval. Individuals who spend their funding on non-NDIS support or contrary to their plan may face compliance action.
Participants wishing to access non-NDIS support must apply to the NDIA for a replacement and demonstrate that they meet the required criteria.
What is included in the list of NDIS approved Support?
Have a look at the NDIS support list below. We have pointed out some notable changes from the initial version that could be important.
Accommodation assistance or tenancy assistance - This category includes various supports to help individuals build capacity and find and maintain suitable accommodation. Medium-term accommodation has now been included on the list.
Assistance Animals—The definition of an "eligible assistance animal " is now on page 2 of the rule. NDIS included assessment, matching, grooming, veterinary services such as medication, treatments and vaccination, and yearly reviews to maintain accreditation.
Assistance in coordinating or managing life stages, transitions and supports - These are disability-related supports designed to assist people with transitions. The draft version only mentioned support for transitioning from a health setting, but now includes mental health, educational, employment, living, and custodial settings.
Assistance to access and Maintain Employment or higher education—This support category now also includes self-employment and micro-enterprises.
Assistance with daily life tasks in a group or shared living arrangement—this category covers support for tasks of daily living in group settings. Short-term Accommodation and respite are included in this category.
Assistance with travel or transport arrangements - This support category is for people who cannot travel or use public transport independently. This now includes in-kind specialist school transport and travel training.
Assistive equipment for recreation - It includes assistive products used for sports and recreational activities.
Assistive products for household tasks - Includes products that help with domestic and everyday activities in the home. This has been expanded to capture food, drink, gardening, cleaning and laundry-related assistive products. It includes upgrades or modifications to household items, delivery, adjustment, assessment, and training in those products, along with maintenance.
Assistive products for personal care and safety—This category includes products to assist with self-care. There’s more detail now about modified food, adaptive clothing, products for washing and drying the body, menstruation products including applicators and period underwear, adaptive furniture, visual and tactile alert systems, and assessment and maintenance of these products.
Specialist positive behaviour support - Compared to the draft list, the new list highlights the development and delivery of interim and transitional plans.
Communication and information equipment—This includes information about assistive products that help with receiving, sending, producing, and processing information in various ways. It also covers training for participants in using communication and information products and maintaining them.
Community nursing care - These services offer nursing care related to disabilities for individuals with high care requirements (excluding intense daily personal activities), necessitating advanced clinical expertise. This encompasses:
catheter care
monitoring skin integrity
tracheostomy care
medication management
administering intramuscular injections
Instructing support staff on addressing a participant's complex needs.
Prostheses and Orthoses—This category now includes design, fitting, prescription by a qualified professional, osseointegrated external products, training, and maintenance services.
Daily personal activities - This category encompasses supports that help with daily living activities. It specifies that these supports include assistance with eating, drinking, dressing, hygiene, mobility, positioning, and similar personal care at school.
Development of daily care and life skills - Another extensive category focuses on assisting individuals with independent living. In contrast to the initial draft, this updated list includes specific psychosocial recovery supports. Additionally, it outlines various activities, including shopping, meal preparation, financial management, personal care management, travel, and social skills development.
Disability-related health supports—This section underwent some major changes. It has been updated to feature specialized allied health services and assistance aimed at improving functionality and reintegrating individuals following a recent spinal cord injury or severe acquired brain injury. Additionally, it now provides training for informal caregivers.
Early Intervention supports early childhood - Therapists and key workers are now included in this category.
Exercise physiology and personal well-being activities—Now, they involve personalized workout routines aimed at enhancing or preserving an individual's functional abilities and sustaining muscle strength, flexibility, balance, and mobility.
Group and centre-based activities - This also references cultural events.
Hearing equipment—To be eligible for hearing aids, the equipment must be specifically linked to the individual's permanent hearing loss rather than obtained through the Hearing Services Program.
High-intensity daily personal activities—For further details on the meaning of "high intensity," please refer to page 2 of the Rules.
Home modification design and construction - The new list now permits internal and external building alterations as necessary to address damage caused solely by disability-related behaviours or the use of NDIS-funded assistive technology or equipment.
Household tasks—This support category includes taking care of the house and yard, preparing and delivering meals, and cleaning.
Innovative community participation - This section now focuses on individuals who require personalized assistance to engage in various activities.
Interpreting and Translation - Here, cultural activities that require translation due to an individual's disability are included.
Management of funding for support - also known as plan management.
Participation in Community, Social and Civic Activities
Personal mobility equipment - additions have been made to include assistive products for walking, motorised mobility devices, hoists, training for participants in the equipment, and maintenance.
Specialist Disability Accommodation
Specialised Driver Training - must be provided by a qualified instructor.
Specialised hearing services - It has been clarified that allied health professionals can conduct specialized audiological assessments and issue prescriptions for participants with complex needs.
Specialised Supported Employment - The Rule eliminates the reference to Australian Disability Enterprise (ADE) and instead emphasizes the provision of support to assist participants in preparing for, securing, and maintaining employment in a setting of their preference.
Support Coordination - The title of this category no longer includes the term "specialist" to acknowledge and encompass all levels of support coordination.
Therapeutic supports - Now includes psychosocial functioning in addition to evidence-based therapies.
Vehicle Modifications—This now includes hoists, modified controls, restraints, certification costs, and services to assess, prescribe, deliver, adjust, and train in modification and maintenance.
Vision equipment - Providing items such as navigation products, orientation tools, braille materials, magnifiers, and note-taking devices. This list has a third column, which tells you who is eligible for the “in list” support. But it’s not easy reading. It is also not enough to show that a support is on the in list. It must also not be on the out list.
What’s out?
Ok, so what won’t the NDIS fund?
The “Out List” has a revision on the language regarding certain supports, such as sex toys, menstrual products, and gym memberships.
But the NDIS won’t fund:
Non-NDIS supports include services regulated by different government agencies. However, not all services in these categories receive funding from other government entities. For example, 'airline lounge memberships' fall under 'transport,' but it is unlikely that any government-funded transport services provide this particular service.
The categories that are not the responsibility of the NDIS include:
Health services- encompass the diagnosis and treatment of medical conditions. The updated version now includes surgical treatments and contact lenses. It has been clarified that individuals can still receive NDIS supports while in palliative care, even though palliative care itself is not covered by the NDIS.
Mental health services- involve the treatment of mental health conditions and clinical mental health supports.
Child protection- covers services such as child protection, guardianship, and parenting programs.
Early childhood- includes child care, with the addition of early childhood supports or therapies aimed at supporting a child's general development needs. This addition may lead to future discussions on distinguishing between general development therapies and disability-specific therapies.
School education- encompasses general education services and the expenses related to enhancing school accessibility for individuals with disabilities. The list now includes work experience as part of a school program.
Higher education- similar to school education, this category includes general university and TAFE services, along with reasonable adjustments to support individuals with disabilities. However, transportation between education activities and training is no longer excluded.
Employment- specifies that the NDIS does not fund Disability Employment Services, Workforce Australia services, employer responsibilities, or employer support programs.
Housing and community infrastructure- covers housing services other than Specialist Disability Accommodation.
Transport- includes public transport, transport infrastructure, community transport, and transport fees.
Justice- excludes funding for day-to-day support for individuals in custody, secure psychiatric facilities, or pre-sentencing psychological reports.
Aged care- the NDIS does not fund services falling under the Aged Care Act 1997 or provided to individuals entering aged care facilities over the age of 65. Notably, this section does not address the support needs of NDIS participants over 65 who may require increased in-home support as they age.
Income replacement- including income support payments, rent subsidies, and income supplementation.
Replacement Process
Individuals have the option to seek funding from the NDIA for certain supports that are listed on the "out list." This process is known as the "replacement process," previously referred to as "substitution." Applicants must demonstrate that the support meets specific criteria.
In essence, according to section 10(6) of the Act, the replacement criteria require the support to:
Replace an NDIS support,
Provide the same or improved outcomes,
Be of equal or lesser cost compared to the total amount of the support(s) it would replace,
And meet the criteria outlined in the rules.
The Rules clarify that only two categories of support can be substituted.
Each category has its own additional criteria. The categories are:
Category 1 includes standard commercially available household items.
Moreover, individuals may access these items if they can demonstrate to the NDIA that:
The items are necessary to address the participant's needs resulting from their impairment and
They enhance overall task independence and
They reduce or eliminate the requirement for a support worker or disability-specific assistive technology.
Under Category 2, individuals can access smartwatches, tablets, smartphones, and an app for accessibility or communication purposes.
In addition to the conditions outlined in s10(6), individuals may be granted access to these items if they can demonstrate to the NDIA that:
Support is essential for addressing communication or accessibility requirements that result from their impairments.
Even if an individual submits evidence to the NDIA demonstrating that a support meets the specified criteria, the NDIA retains the discretion to decline approval. The decision of the NDIA to reject a replacement support is non-reviewable.
Information on the application procedure for replacement support and the timeline for its availability has yet to be provided. The government has indicated that it will collaboratively develop this replacement process in response to community needs.
Transitional arrangements
Two crucial transitional rules apply to individuals whose plans were approved before October 3rd 2024.
Firstly, if the support is 'stated' in the plan, it can still be funded even if it is listed as an out-of-scope item. There is some uncertainty regarding whether this covers scenarios where a support is described in the plan, but the transitional rule uses the term 'stated'.
Secondly, suppose the Administrative Appeals Tribunal has granted funding for a support. In that case, the NDIS will acknowledge it as an NDIS support, even if it is currently listed as out-of-scope.
Transitional measures for debts
DSS and the NDIA have guaranteed individuals that they will not initiate enforcement actions for minor errors for 12 months. The DSS report indicated the establishment of a transitional provision. These transitional provisions dictate that the NDIS will not seek repayment where the cost of the ineligible support is either below $1500, or the individual has not received at least two warnings for support valued under $1500.
The report further states, "This provision will apply to participants for one year and to registered plan managers and providers for 30 days following the enactment of the Amending Act." Providers, therefore, have a 30-day window to familiarize themselves with these requirements... quite a task.
Expenses incurred on non-NDIS supports exceeding $1,500 will result in a debt.
Conclusion
This is the biggest change to the NDIS since its introduction. These changes affect all aspects, including planning, budgeting, and compliance. There is a lot of information to absorb.
Here’s a link to the transitional Rules.
The NDIS's updated Operational Guidelines.
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