NDIS Updates: NDIA and the Health Interface
AAT decisions provide the sector with legal interpretations of access updates to the NDIS, funding decisions made by the NDIA, and which supports may be deemed reasonable and necessary under the NDIS Act.
The AAT released a decision (Mazy and National Disability Insurance Agency  AATA 3099) on 30 August 2018 regarding a participant’s request for support from a registered nurse to administer insulin at regular intervals throughout the day, finding that the supports requested by the participant were reasonable and necessary.
NDS has received consistent feedback from providers regarding the interface between Health and the NDIS, including participant access to nursing supports. Currently, nursing supports are funded under the NDIS as a capacity building support, intended to provide training to support workers to undertake ongoing complex personal care supports (such as catheter care, wound care, etc.). This decision is important to consider, given the lack of clarity provided by the NDIA on whether ongoing nursing supports are funded in participant plans, and complexity of the interface between Health and the NDIS.
The Tribunal’s decision to fund nursing supports in the participant’s plan sets a precedent for future decisions, however it should be carefully considered in the context of the individual’s circumstances, as this affects whether supports are reasonable and necessary. It is clear from the information provided in the Tribunal’s decision that, in this case, the funding was found reasonable and necessary in part on the basis that the participant could have administered insulin independently, if not for their disabilities. The participant’s high support needs and circumstances further influenced the need for specialised supports.
The decision by the Tribunal to fund ongoing nursing supports in the participant’s plan does not indicate that all participants requiring similar supports should or will receive ongoing nursing supports. It does however demonstrate that, where it is reasonable and necessary - i.e., the individual’s circumstances and support needs require ongoing nursing supports and these supports relate to the participant’s disability - the supports may be funded in a participant’s plan.
The details of the decision can be found below.
The participant is blind, hearing-impaired and non-verbal. They also have a severe intellectual disability and were diagnosed with Type 1 Diabetes at 18 years of age. The participant requires active support throughout the day and is entirely dependent on other people. The participant has never managed their diabetes themselves, and the diabetes is difficult to control. The participant is on a variable insulin dose, which needs to be adjusted on a day-to-day basis.
The participant lives in supported accommodation and identifies those who care for them by touch. It was noted in the Tribunal’s decision that the participant finds it difficult to adapt to change and can become aggressive if they find themselves in unfamiliar surroundings. They have lived in their place of residence for the past 19 years.
The service provider delivering daily supports does not allow their support workers to administer insulin injections. It was noted that finding alternative accommodation for the participant where support workers were permitted to administer insulin would increase the cost of the accommodation supports significantly and would be very disruptive for the participant.
The participant previously received supports from a state-funded program, ‘Nurses on Wheels’, where they were able to access registered nurses throughout the day.
The NDIA’s decision
The NDIA’s initial decision considered the participant’s inability to self-administer insulin, however found that the participant’s support workers should administer insulin with appropriate training provided by a registered nurse. The training was funded under ‘the Capacity Building support, individual assessment and support by a registered nurse to train staff in how to assist participants with their health care needs as a result of their disability’. The NDIA argued that any supports requiring medically-trained staff should be funded by health services, as the NDIS is not responsible for the clinical treatment of health conditions, including ongoing or chronic health conditions.
The NDIA further argued that other comparable supports - that would achieve the same outcome for the participant - have not been fully investigated. The NDIA proposed that it would fund training of the participant’s support workers to use an insulin pump and the engagement of an appropriately-qualified person to undertake any injections and to maintain the pump.
The participant’s treating specialist of 16 years highlighted that, as a result of the participant’s complex medical needs, the participant required professional nursing supervision that could not be delivered by non-medically trained support staff. The specialist expanded on this, indicating that the individual administering the insulin would be required to review the blood glucose profile of the participant and understand how to adjust the participant’s insulin requirements when required. The specialist further indicated that they provide telephone support when there are clinical problems developing for the participant. They commented that the responsibility for changing medical orders can not be delegated to a non-medically-trained carer.
The specialist further highlighted that the risk to the participant is severe if the participant is administered an incorrect dose of insulin, noting that an insulin pump is not an appropriate alternative.
The Tribunal’s consideration
The Tribunal did not accept the NDIA’s argument that nursing support provided to the participant is clinical treatment of an ongoing or chronic health condition. The Tribunal considered the provisions under the COAG Applied principles and NDIS Act - which recognise that, in some circumstances, maintenance supports by clinically-trained health practitioners will be funded under the NDIS if the supports are ‘related to a person’s ongoing functional impairment and that enable a person to undertake activities of daily living’, where they are related to a functional impairment.
The Tribunal found that the assistance the participant received to administer insulin was required as a result of their disability, as opposed to the nature of the health condition itself. This is because the requested support of a registered nurse is directly related to the participant’s functional impairments and is linked to the care they require to live in the community.
The Tribunal further found that it was not incumbent on the participant to explore other alternative support arrangements, accepting the evidence provided by the participant’s treating specialist that an insulin pump was not an appropriate alternative.