NDIS Client care plans, the appeal process and time limits

In determining the care plan for an aged participant due consideration should be paid to the appropriate types of supports. This covers core support, capacity building and capital supports. Having an understanding of the logistics of the different funding structures is a must for any NDIS Service Provider.

NDIS
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 Min read
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May 25, 2022

Core supports should always be presented in accordance with the participants goals and they may even include items that assist with daily life activities such as travel, supplies or assistance with social and community engagement. Any effort should be taken to secure the most funds as possible within this category so that the benefit of the participants can be maximised.

On the other side of the coin, capacity building support services are limited to those within the NDIS price guide to make sure that any service items are included within each support category and not exempted. It is essential to ensure that the NDIS decision-making and pricing guidelines are taken into account.

Therefore, it is important to include individual quotations that list out any more individual fees, setup, and maintenance costs. This could involve technology such as computer software such as Speech to Text Recognition.

Whilst the above is not meant to be detailed, it provides some idea of the kinds of things that providers should be thinking about when creating their plans for participants. It should be noted that plans can be reviewed if there is a change in circumstances but this will take time and may lead to delay in a person getting the support they need. rAccordingly if it is highly probable that there will be a change in circumstances in the future, thought might be given to applying to also have funding bundled up to a certain figure pursuant to the NDIS pricing structure which would allow both providers and participants to be more adaptable so that the support required  by the participant can be modified (so long as it is within the funding amount sought) without the need for further assessment of the plan.

Without the proper consideration of plans being made, costs could not be reimbursed. For example, in the decision of Complete Nursing and Home Care Pty Limited and NDIA, the Tribunal revealed that it did not have the power to review the NDIA's refuse to pay invoices by the service provider. In that ruling the provider, whilst exhibiting notable generosity, had provided assistance that had not been approved to be funded as part of the particular plan and thus the NDIA refused to fund the support. In the situation at hand it was responsibility left to rest on the shoulders of the participant and/or their family to actively pursue a revision of the plan, that being said, having done so this would no doubt have resulted in a delay in having received the support that was actually needed by the participant.

If the Tribunal confirms that it has not been able to award payments to the provider of services that it provides both reasonably and carefully, this raises very real concerns as to how practical the service required is to be supplied as the only options are for a provider to stop providing services once the funds are exhausted.

In either case the decision stresses that care providers are subject to substantial costs and it is one that needs to be discussed in accordance with the future system reform. For the time being, care providers should be aware of this limitation as they design their plans and services accordingly.

The appeal process and how advocacy plays a significant role in this process

If a participant is not satisfied with an initial decision, they must decide to apply for internal review within three months of being sent the notice of decision. Internal review cannot be initiated unless an internal review is requested first.

If a participant continues to remain dissatisfied from the review then an appeal must also be lodged with the Tribunal within 28 days, that being said the time can also be extended on application to the Tribunal. The agency must transmit all documents to the participant when an appeal is lodged within the Tribunal. These are classified as T documents and are presented within 28 days to the Tribunal and also the person seeking a revision and/or their legal representative.

Once the appeal is filed, a conference is scheduled, and is usually conducted via the telephone and the matter is generally discussed to see if it is ready to start proceedings. This can include dialogue of the need for additional evidence. Following the case conference a matter is then referred to a conciliation that is a face to face meeting (normally speaking) and offers a chance for the parties to seek settlement of the claim and consider possibilities for compromise.

If it cannot be resolved, a hearing will be conducted and a decision made by a Tribunal member.

If the applicant is not satisfied by the Tribunal's ruling, they could still appeal the said decision to the Federal Court within 28 days. It's also crucial to highlight that an appeal to a Federal Court can be made on a question of law only as the Federal Court cannot take into account the merits of a Tribunal decision. A question of law could include, for instance, whether the Tribunal wrongly interpreted or applied the Act or whether or not the Tribunal applied or selected and applied the correct test.

It is important to remember that in the Tribunal for NDIS matters there is no provision for legal fees which cannot be recovered irrespective of the outcome. Thus, if a legal advisor is opted, it is done at the expense of the applicant, unless the applicant is eligible for legal assistance which can be granted under very limited circumstances.

Navigating the law in such a way that the participant achieves the best results requires a thorough examination of how the needs of the participant fit into the limitations of the law. It is not sufficient to know what is best for the participant or to make submissions. It is of paramount importance that the wording of the Act, particularly Section 34 extracted in the paper above, be taken into consideration when preparing evidence.

It is important that the best evidence be provided in support of the application as early as possible in order to best navigate the application process in a timely manner. This means in practical terms that independent verification from experts may be needed. For example, if someone is looking at a specific type of care plan then an independent occupational therapist specialist may be needed in order to testify and provide more weight to the advice being given by a provider. This not only reinforces the submissions of the provider but also provides an independent witness account, that additionally is obligated to provide evidence to the Tribunal as an expert witness. E  vidence of this kind can not only reinforce the application, but can shorten the appeal process along with good advocacy.

Practical suggestions on how to manage care plan assessments 

The difference between the reviews permissible under the Act is important to know. For instance:

In accordance with Section 48, a participant may request at any time that the participant's plan be reviewed by the CEO. This is usually done at the participant's request when they believe they may not have received the support they need; 

The revised decision can, on the other hand, be revised by Section 100 of the Act. pWhere for example a request for review of this Decision is made under section 100 rather than Section 48 if the NDIA has given written notice of a Decision that may directly affect a participant. The reason for this distinction is that the purpose of Section 100 is quite vastly different from a plan review under Section 48, which is scheduled or requested. The internal review of Section 100 determines whether the decision was made correctly and reviewably. A planned plan review, however, of section 48, will evaluate whether the support provided in the plan meets the current needs of the participant. Notably the decision of a Section 100 internal review will also be backdated to the original plan ruling. The Section 48 scheduled plan review decision wouldn't be.

It has become public knowledge that Complaints have been made to the Commonwealth Ombudsman that the NDIA is encouraging participants to withdraw Section 100 internal review applications when a scheduled plan review in accordance with Section 48 is set to take place. bIn practise, if a participant withdraws the internal review of Section 100 and remains unsatisfied with the result of the plan review, they now need to re-apply for an internal review of the newly approved plan which would only be backdated on the date of that review and not on the initial date. This may result in substantial out-of-pocket expenses for a participant or family and that would only benefit NDIA Budget Requirements by design or otherwise and not the participant. That was never the intention of the Act. In short, the difference between the rights of the participants should be known and those rights should be protected at every stage if the participant is not satisfied with the support provided.

Requesting a time limit on a reply from the NDIA and the internal review process

The internal review process must be requested within 28 days. There is nothing to say, however, that within a certain period of time, the NDIA must make a decision.

According to current legislation, the NDIA must make a decision "as soon as reasonably practicable". Notably it must be mentioned that applications to the Tribunal may only be made for review of a decision made by someone who has examined an initial ruling.

The majority of operators in the NDIS system would be well aware of the delays in taking decisions on critical funding reviews. It's been reported that the Commonwealth Ombudsman has indicated that up to a third of the complaints filed to its offices in relation to the NDIS are typically about the times taken to provide reviews.

Whilst it is clear according to the Act that the NDIA must complete plan reviews and internal reviews "as soon as reasonably practicable", the utter lack of standards or adequate response time frames is controversial for both the NDIA and participants. In fact, the NDIA has been unable to manage the needs of participants about the length of time it takes to handle their requests for review. This uncertainty is a major driver of NDIA complaints.

Maybe this is an aspect of transformation that needs to be given priority in order to give confidence to both the NDIA and more importantly to participants.  

Conclusion

Certainly, it is important to determine what is fair and equitable on a case-by-case basis and to take into account the particular facts and circumstances of a specific person in each of the cases being reviewed whether internally or by the Tribunal. The NDIS scheme is certainly far from perfect and could require further reforms in the near future to make its systems more straightforward while at the same time giving its participants greater transparency and security.

Despite the obvious opportunities for reform, it is incredibly important that participants and their advocates are knowledgeable of how the scheme functions in order to effectively develop care plans with the susceptibility for review or even the requirement for an appeal. This would mitigate the circumstances whereby advocacy is generally required for supports funded and provided under the NDIS.

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