In November, the NDS Helpdesk answered members’ questions on a range of everyday situations. Some were straightforward, but others required our team to dive deep into NDIS policy and regulation to emerge with an answer.  

The Top Five questions this month cover everything from training for board members to charging cancellation fees for illness.  

Question 1:

Are board members of a NDIS registered disability services provider required to do the NDIS worker Orientation Module?  

Answer: 

The NDIS Commission notes that 'all registered NDIS providers under the NDIS Commission should include the module within their induction process for workers, but does not specify whether this includes board members. However, the Orientation Module focusses on the Code of Conduct, which applies to organisations and individual workers. 

The NDIS Commission considers board members as key personnel within an organisation’s workforce, rather than a separate arm of an organisation. Therefore, they have applied similar or additional requirements for board members. An example is in the NDIS Worker Screening requirements, which require board members to hold a Worker Clearance. 

The Disability Royal Commission has also focussed on the role of the governance mechanisms of boards and organisations in ensuring the human rights of the people using their services. 

So, we conclude that providers should include the Orientation Module as part of their board member induction. 

Question 2:

What is the requirement for disability providers when a support worker they employ has sexual relations with a client, even if the client says it was consensual and outside the service being delivered? Is this a reportable incident and, if so, how does one report it? 

Answer: 

Any incidents of sexual misconduct are reportable to the NDIS Commission. The Code of Conduct provides a non-exhaustive list of what could be considered sexual misconduct. This includes: 

• asking the person on a date 
• touching any part of a person’s body in a sexual way 
• touching a person in a way they do not wish to be touched 
• displaying their genitals to the person 
• coercing, by pressuring or tricking, a person to engage in sexual behaviours or acts 
• making sexual or erotic comments to the person – in person or by text message, email or social media message (as well as written comments, this includes images and audio) 
• making sexually suggestive comments or jokes 
• intentionally staring at a person in a way that makes them feel uncomfortable 
• making comments about a person’s sexuality or appearance 
• making requests of a sexual nature, including to remove clothing, for sexually explicit photographs, videos or for sexual activities 
• showing the person pictures or videos of naked people, or people undertaking sexual activities 
• ignoring or encouraging sexual behaviour between people with disability that is non-consensual or exploitative. 

It would appear that the behaviour of a worker could be considered sexual misconduct despite being described as consensual, and therefore it is reportable to the NDIS Commission. The Commission website provides guidance on how to report incidents.  

The NDIS Code of Conduct require providers to: 

"Develop policy and guidance to prevent and respond to sexual misconduct. This must explicitly indicate that workers will not commit sexual misconduct or engage in inappropriate relationships with persons with disability they support, or knowingly engage in them with the families and carers of people with disability they support. 

An NDIS provider’s guidance for their workers should: 

• distinguish between sexual misconduct and appropriate conversations around a participant’s sexual support or family planning needs 
• distinguish between inappropriate touching and appropriate touching 
• guide workers in setting boundaries with the person they are working with 
• guide workers in determining whether their own or others’ relationships have become inappropriate and instruct them to cease any such relationship." 

NDS has a suite of resources for organisations to meet their obligations to the NDIS Commission around risks, incidents and complaints.  

Question 3:

When providing a program of support (for example, a ten-week cooking class) can you charge for the program up front? 

Answer: 

It’s hard to make our group programs worthwhile financially when participants cancel, because we have already engaged the staff and cannot find a replacement participant in a small group at short notice. 

If we cannot charge up front, can we bill them when they don’t show up? 

The NDIS Pricing Arrangements and Price Limits on page 29 notes that "in particular, providers cannot pre-claim for programs of support. Each instance of support in the program of support has to be delivered before the provider can claim for that instance of support." 

In programs of support, providers can claim against the plans of all the participants who had agreed to attend an instance of support. It doesn’t matter whether or not they attended, as long as the provider was able to deliver the support. Short notice cancellation rules do not apply to supports delivered as part of a program of supports. This means that, as long as the participant has agreed to a program of support, providers will be able to claim. The Pricing Arrangements and Price Limits note that agreements for programs of support cannot last longer than 12 weeks and participants must be able to leave a program by giving two weeks’ notice. 

Question 4:

Do Specialised Disability Accommodation (SDA) participants wanting to live in an SDA dwelling need a residency agreement and a service agreement. Will they also need a schedule of supports? 

Answer: 

SDA providers need to ensure that they comply with both state-based tenancy laws and NDIS SDA rules and guidelines. 

As to whether a service agreement is required: Clause 36 of the NDIS SDA Rules states that Specialist Disability Accommodation cannot be provided to an eligible participant without a written service agreement between the registered provider of supports and the eligible participant. A copy of the agreement must be given to the participant. The service agreement must include terms that set out the rights and responsibilities for the registered provider of supports and the eligible participant. The terms that must be included in a specialist disability accommodation service agreement are set out in the addendum to the Terms of Business for Registered Providers. 

The participant and provider must also enter into a residency agreement. In Victoria, there are two types of rental agreements available for SDA dwellings. More details about the types of agreements and how to enter into an agreement can be found on the Consumer Affairs Victoria website.  

Our understanding is that a schedule of supports is not required for SDA providers. 

Question 5:

Providers are reviewing cancellation policies that had been lenient during the COVID-19 pandemic. What is considered reasonable to charge a participant for a cancellation due to illness? The provider does not want to encourage people to attend centres when unwell, but they have a lot of unfilled appointment slots due to short-notice cancellations. 

Answer: 

The NDIS Pricing Arrangements and Price Limits, p23, defines short-term cancellations as when a participant: 

• Does not show up for a scheduled support within a reasonable time; or  
• Is not present at the agreed place and within a reasonable time when the provider travels  to deliver the support; or 
• Has given less than seven clear days’ notice for a support. 

Furthermore, to claim for a Short Notice Cancellation, the claim needs to be in line with the Price Limits guidance. The provider also needs the agreement of the participant in advance.  Finally, the provider needs to have been unable to find alternative billable work for their workers and had to pay the workers for their time.  

The NDIA does not specifically address the issue of cancellations due to participant illness. NDS acknowledges that providers often try to be fair to participants while needing to meet incurred costs. Getting this balance right differs across providers, participants and support types. Some providers might usually charge for cancellations due to illness but leave scope for exceptional circumstances. We are also aware that some providers of therapy supports maintain the two-day notice period for a short-notice cancellation.