NDS Helpdesk Top 5: December 2022
The NDS Helpdesk team have chosen the top five questions and responses from the past month.
If a participant refuses to evacuate in an emergency, what is our duty of care as disability service providers? Do we evacuate them against their will, or do we respect their decision not to evacuate?
We are not able to provide legal advice but are happy to provide some information. (We suggest you speak to a legal professional about this if it is a probable concern. Note that NDS Organisational Members can receive 15 minutes of free legal advice through partner Holman Webb Lawyers.)
NDS understands that a person in the care of a service provider has the legal right to make their own decision to stay put or evacuate in most emergency situations. Therefore, service providers do not have a right to forcibly remove participants during emergencies.
When a participant refuses to evacuate an unsafe setting, continuing to support the participant is likely to put staff at risk. However, under the NDIS Practice Standards, registered NDIS providers have a duty to ensure the continuity of supports critical to the health, safety and wellbeing of participants in an emergency or disaster.
These competing duties can leave service providers in a difficult situation. NDS understands that police can forcibly remove people from unsafe settings for their safety. If a participant is unwilling to evacuate in a situation that is likely to put the participant and staff at risk, the service provider can contact police to legally evacuate the participant.
We suggest documenting any conversations with the participant, with witnesses, if possible.
One of our participants is self-managed and has a stated support in their plan for Level 3 Support Coordination. Can they decide to purchase Level 2 Support Coordination instead?
NDS understands that if a plan specifically mentions that a support is a “stated support”, it cannot be used flexibly. The NDIS website notes: “You cannot swap ‘stated supports’ for any other supports”. If level 3 support has been funded as a stated support, the participant is expected to need this level of support coordination and must access support coordination at that level.
I’d like to update our cancellation policy from 24 hours to two business days. Are there any restrictions around this?
The NDIS Pricing Arrangements and Price Limits allow providers to claim for undelivered supports where a participant has cancelled or does not show up for a scheduled support and has given less than seven days’ notice.
Page 23 of the Price Limits document provides a relevant example that confirms that you can charge for short-notice cancellation if the participant notifies you more than 24 hours before the support. This should reassure you that you can increase your cancellation period to two business days.
To claim for short-notice cancellation, you must include a cancellation policy in your service agreement with participants. When updating your cancellation policy, you will need your participants to sign off on the new cancellation period.
The claim should be made at the agreed rate for the service against the relevant support item using the drop-down field “Cancellation”.
The Federal Court recently made a decision that affects the access criteria to the NDIS. Could this change impact a participant’s access to funding if Positive Behaviour Support was not included in their plan because possible dementia was cited in an occupational therapy report?
It does appear that the recent judgement in “The National Disability Insurance Agency V Davis 2022” is likely to affect the criteria used by the NDIA to decide what it will fund. The judgement means the NDIA will not provide funding for impairments if there are “known, available and appropriate” treatments that would likely remedy the applicant’s impairment.
On the other hand, it should mean that applicants will be able to access the NDIS if they meet other criteria and if there are no known, available and appropriate treatments likely to remedy their impairment.
In the case you describe, it may be that the participant, to receive funding from the NDIS to support cognitive impairments, would need to prove that there are no known, available and appropriate treatments for their 'possible dementia'.
Unfortunately, we cannot give you a definitive answer about how the NDIA will apply this new ruling, though we share your interest in the implications of this case.
Regarding the monthly reporting requirements for implementing a behaviour support plan: are we still required to report to the NDIS Quality and Safeguarding Commission through PRODA if no reportable incidents have occurred in that month?
The National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 does require you to report no incidents. It states: “the provider must give monthly reports to the Commissioner regarding the use of regulated restrictive practices by the provider”.
The Portal User Guide for Monthly Reporting of Restrictive Practices also suggests that a month with no incidents still needs to be reported. Your question is timely. Duplicative reporting is being discussed in sector forums, including the NDIS Review Panel, and having to report “no incidents” would seem an instance of unnecessary red tape.