NDIS Overhaul: What’s Changing, What’s Confusing, and What You Need to Know

Stay in the loop with legislation changes....

Big changes are on the horizon for the NDIS, and they’re rolling out soon. Some of it might be helpful, some of it might be confusing, and, well, some might leave you with more questions than answers. Let’s break it down.

Finally... Clarity on What’s Funded

Ever feel like you’re playing a guessing game with your NDIS funding? Especially when you're managing more than one condition (like Autism and Hypermobility), it can be tricky to know what’s actually covered and which diagnosis you can spend funding on. This new legislation introduces a ‘Notice of Impairment’ that will be provided to participants to specify what the condition or diagnosis is that is funded by the NDIS. Participants will be able to request a review of this notice if they don’t agree with what it contains.

This will finally provide clarity for participants around what diagnoses they are able to use their funding for. Notices will start to be provided to new participants when they make access from the 1st of January 2025 but there is no information on when current participants will receive theirs. 

What’s an “NDIS Support” Anyway?

Ah, the lists—YES and NO lists to be exact. The NDIA is putting together some lists to define out what counts as an NDIS support and what doesn’t. This should make it easier to know what you can and can’t spend your funding on… right?

Well, maybe. These lists are supposed to be “transitional” (because, you know, new legislation takes time when all states and territories need to agree on it!), so we could be living with these lists for a while. Having a list is a big change. We move from deciding what NDIS funding can be spent on through principles to now the use of a prescriptive list. You may have seen that the draft lists were out for consultation amongst the community. There were many concerns that these lists will stifle innovation and individualised support and cause disability specific supports to become more expensive simply by being on the ‘YES’ list. There are concerns they contribute to isolation by channelling people into disability specific environments. 

They make it very difficult to live in the mainstream world and don’t focus on ending segregation.

If you want to buy something that’s not on the YES list, you can apply for an exemption. Advocates fought hard for this amendment, however to get an exemption the participant would need to prove that what they are asking to purchase would:

• Replace one or more NDIS funded supports (Note - this will stop ‘extra’ funding going into a plan. And sadly often this won’t be possible because the support is required because there is no other alternative).

• Costs the same or less than the support it is replacing

• Will provide the same or better outcomes than the support it is replacing

• Meets any other conditions in the (currently unwritten) NDIS rules. 

We still don’t know whether this ‘exemption’ needs to be sought at the time of planning or the time of purchase, what evidence is needed, whether a participant needs to request an exemption every time they need to purchase that item or how long it will take for the exemption to be approved by the NDIA. Potentially the process could be so prohibitive / exhaustive for the participant that the benefit of an exemption is effectively lost. Either way it sounds like a Paralympian effort is going to be required.

What’s Essential, Anyway?

Here’s where things get murky.

With these lists, for a support to be funded in a plan, they require the support to be for an essential activity. Who defines ‘essential’? Is having friends essential? Is eating more than 5 different foods essential? What is essential to one person is not essential to another. Apparently, the NDIA has decided that sex isn’t essential… (cough cough human rights) so we’re left with some pretty big ethical and moral questions.

Also concerning is that these lists move many items into the category of ‘day to day living costs’ which results in a person with disability needing to prove that that their need for the item is support is solely and directly as a result of their disability. The word solely is very difficult to prove. An item might fill disability and non disability related needs. If it fills a non disability related need that might mean it is not considered the responsibility of the NDIS to fund. Take a smartwatch, for example. Sure, it might help with fall detection (disability-related), but it also tells the time (not disability-related). All things we will need ponder. It may be very easy for the NDIA to state that something is related to personal interests in addition to disability.

What Happens to Your Current Supports?

If you’ve got supports in your plan right now that don’t make the cut on the new YES list, what happens? Well, we’re not sure yet. The NDIA says they’re working on it, so theres that….

Potentially when the final lists are published it may state that if a current plan has express permission for a particular support it is still allowed to be purchased after these laws change. 

Hopefully, they’ll communicate clearly (and quickly). Although I’ve noticed the best measure of future behaviour is to study the past… so… hmmmmm.

Stick to What’s Funded – Will it be a carrot or a stick?

From now on, your NDIS funds can only be spent on the impairments on your ‘Notice of Impairment’ and the “YES” list of what is defined as an NDIS Support. The NDIA have been working this way operationally for a long time, however when tested at Tribunal participants have won the right to have other impairments funded. That loophole (for lack of a better word) may be closing permanently now.

Plan Management – More Scrutiny Ahead

If the NDIA thinks someone is misspending your funds, they can switch the participant to Plan or Agency management and also can raise a debt against the participant. While the NDIA have already been removing Self Management for some participants, now that they have a far greater focus on fraud and misuse of funding and a list of what NDIS funding cannot be spent on, this may become far more common. The NDIA can also raise a debt against a participant if funding is used for supports on the ‘NO’ list. Good news though that participants can ask this debt to be waived and if the NDIA don’t waive it that decision can be appealed.

Pacing Your Spending

One of the big focuses of the new changes is making sure participants don’t blow through their funding before the plan ends. Bill Shorten gave a lovely (sarcasm) and I’m sure very common (again sarcasm) example of a participant with a $200k plan who claimed all $200k within 5 weeks and then requested a plan review. Does the Government ever let the truth get in the way of a good story? Why would they!

The point is that most participants will only be able to access 12 months’ worth of funding at a time—and possibly less if they think you’re at risk of overspending.

There will be a focus on reducing ‘intra-plan inflation’ i.e. someone uses all their funding before the plan expires and then requests a Change of Circumstances to get a new NDIS plan. The criteria to request a Change of Circumstances plan will be far more strict so that much stronger evidence is required to show how the participant is at risk with their current plan / budget.

Access to the Scheme – Will you need to prove it again?

“Hello Ma’am - yes we just want to check if little Suzie still has Cerebral Palsy or was there a miracle that occurred in the night where she was super-naturally cured?”

Seriously though; when the new law comes into effect, the NDIA can reassess a persons eligibility to the scheme. This may include asking the person to provide evidence or reports, or to undergo an assessment to determine if they should stay in the scheme. If participants don’t respond to the NDIS within a ‘reasonable timeframe’ they may have their access to the scheme revoked.

The moral of the story is: make sure the NDIA always have your correct mailing address!

In the current legislation a person needs to prove that they are likely to require substantial support for the rest of their life, however in the future, you’ll need to prove that you need “NDIS supports” to stay in the scheme (ie those lists we spoke about will come into play here). The NDIA will move away from relying on a set list of diagnoses and instead take a look at your whole situation.

More Data, Detail and Diversity

The NDIS will now publish monthly statistics instead of quarterly. Plus, invoices will need to include more detail about the support being provided. And there’s a new rule that at least one person on the NDIS board must be Indigenous. These are changes we can all get behind.

That covers the major changes happening soon. While we’re still waiting on some details to be ironed out, it’s clear the NDIS is moving toward more oversight, stricter guidelines, and a lot more eyeballs on spending.

What changes are coming later on?

New Planning Framework - instead of participants submitting reports to show their support needs in their plan reassessment, the NDIA will appoint a person to be a Needs Assessor who will use an Assessment Tool (or range of tools) to determine the participants support budget looking at the whole of their needs.

The government still have to decide what the qualifications / background of the Needs Assessor will be and what the Assessment Tool/s are that will be used. Participants will receive a total funded amount rather than funding in specific categories. Potentially there will be much more flexibility in being given a chunk of funding rather than specific categories like STA or Respite or Speech Therapy because the ‘safeguard’ of the LISTS will actually control how it can be spent.

Potential benefit of the new needs assessment tool: Instead of an algorithm determining a Typical Support packaged based on things like a diagnosis, it should take into account the whole of the person and how they personally are impacted by their diagnosis. For people with diagnoses like Autism which can impact people in very different ways this may result in a more appropriate plan budget. This may be more consistent than current systems which is open to planner interpretation and bias. 

There is a key ethical question around the assessment tool (which determines the budget provided to the participant) being determined by a politician.

So, what happens with participants that have existing plan reassessments underway, a matter at AAT or a S100 review of reviewable decision in process with the NDIA?

This is still too soon to know. Love that for us.

There are provisions for the NDIA to stage the implementations so that the new framework applies only to new plan builds. The NDIA now has to go through a huge range of transitional arrangements and advise us all.

We are also still waiting on the Government response to the Registration Taskforce who had proposed a 4 tiered system of registration for almost all NDIS providers. 

Come to think of it we are all still waiting on the Government response to the NDIS Review!

It’s incredibly backwards to me that we are barrelling through legislation change before even receiving a formal response to the actual review that was supposed to inform this reform. But what would I know?

Steps for the future if you want to be involved:

• Planning: Think about how you want to contribute to what the assessment tool and method should be.

• Subscribe to the DSS Consultation updates and consultation streams.

• The Lists: Keep recording how there lists are not working to use for the ‘final’ draft which may be determined in the next couple of years and hopefully will include co-design so that disability community can have its voice fully heard.

As a community we now know that one of the central operational concerns of the NDIA is the $14 billion savings. According to the Agency the main efficiency they are trying to drive is getting people spending according to their plan. No. Early. Top ups.

This needs to be front of mind for us as we look at how we use NDIS funding and way we structure review requests going forward.

I’d love to hear your thoughts, hope, fears and concerns….

x Anna