The NDIS Quality and Safeguards Commission has intensified its regulatory response towards the reduction and elimination of restrictive practices.

This follows a letter sent in November to almost 8000 providers in which Commissioner Tracy Mackey set out her expectations for the development of Behaviour Support Plans (BSPs). The Commission expects behaviour support providers to develop high-quality, evidence-informed BSPs that comply with all requirements. While the plan is being developed and put in place, participants and their support should be consulted. Participants should be given BSPs that are accessible.

Alongside their advice, the Commission published new policy guidance, a Regulated Restrictive Practices Summary and Protocols document, and checklists to help providers align BSPs with the legislation. These are available on the Commission’s webpage for providers.

In the meantime, the Commission has increased its scrutiny of providers, including random audits of BSPs. The high volume of audits mean that most specialist behaviour support providers will eventually be examined. Providers breaching registration conditions may face compliance and enforcement actions. In discussions with members and with the Commission, NDS have heard that infringement notices may be issued where:

• there is a pattern of late plan submission
• definitions of restrictive practices are unclear, absent or don’t meet legislative requirements in some way
• the participant is not consulted
• compared to similar providers, a provider includes or uses a category of restrictive practices more frequently in their plans across multiple participants in a service
• there are patterns of gaps in Unauthorised Restrictive Practice and Authorised Restrictive Practice reporting.

Compliance and enforcement actions may include unannounced site visits, notices to provide information and fines. Actions also go beyond behaviour support. The Commission is working through a backlog of complaints, and we have heard from providers who have been contacted about complaints from some time ago.

This surge in compliance action is supported by extra staffing and driven by the push from government to take a firmer stance as a regulator.

NDS shared information about the compliance action and the regulatory approach of the Commission with members of the National Quality and Safeguarding Community of Practice. Drawing on the information on the Commission’s website, we covered compliance and the Commission's enforcement and powers to investigate and their Compliance and Enforcement Policies.

Following earlier compliance actions, NDS wrote to Minister Shorten and Commissioner Mackey to raise provider concerns about how the actions were rolled out and their timing. We argued for better information for continuous improvement, for clearer information to be included in notices, and pointed out the possible unintended consequences of the actions on the behaviour support market.

NDS will keep talking to the Commissioner and her team on these issues.

If you wish to discuss how the Commission is handling restrictive practices, please contact your NDS state or territory manager or our Head of Quality and Safety Policy Development, Sarah Nicoll.

You can read the NDIS media release on their increased scrutiny of behaviour support plans on their website.