Appendix D - Legislative changes

The Review has identified that the following actions may require legislative change to implement. The nature of these changes should be confirmed by the Department of Social Services’ in developing a proposed package of legislative reforms (see Action 25.1).

A unified system of support for people with disability

• Action 1.2: The Department of Social Services, with state and territory governments, should develop and implement a Foundational Supports Strategy.
• Action 2.1: The Attorney General’s Department, with the Department of Social Services and the states and territories, should develop a unified and contemporary approach to disability rights, discrimination and inclusion legislation.
• Action 2.3: The Department of Social Services with relevant agencies should develop and trial a mechanism to publicly communicate the performance of current Disability Standards under the Disability Discrimination Act 1992.
• Action 2.4: All Australian governments should incorporate Disability Impact Assessments into new policy proposal assessment processes.
• Action 2.5: All Australian governments should take steps to protect the right to inclusive education for children with disability and developmental concerns in early childhood education and care and schools.
• Action 2.6: National Cabinet should agree to a multilateral schedule to a new Disability Intergovernmental Agreement that replaces the principles for determining the responsibilities of the NDIS and other service systems, including the Applied Principles and Tables of Supports to better clarify respective responsibilities.
• Action 2.11: The Australian Government should implement legislative change to allow participants once they turn 65 to receive supports in both the NDIS and the aged care system concurrently and clarify when aged care supports are reasonable and necessary.
• Action 2.12: The Australian Government should implement legislative or process change to allow access to the NDIS for Disability Support for Older Australians program participants.
• Action 2.16: The Disability Reform Ministerial Council should agree to cease the use of ‘in-kind’ arrangements in the NDIS.
• Action 3.1: The National Disability Insurance Agency should introduce a more consistent and robust approach to determining eligibility for access to the NDIS based on transparent methods for assessing functional capacity.
• Action 3.3: The National Disability Insurance Agency should change the basis for setting a budget to a whole-of-person level, rather than for individual support items.
• Action 3.4: The National Disability Insurance Agency should introduce new needs assessment processes to more consistently determine the level of need for each participant and set budgets on this basis.
• Action 3.5: The National Disability Insurance Agency should allow greater flexibility in how participants can spend their budget, with minimal exceptions.
• Action 3.6: The National Disability Insurance Agency should adopt a trust-based approach to oversight of how participants spend their budget, with a focus on providing guidance and support.
• Action 3.7: The National Disability Insurance Agency should reform the NDIS early intervention pathway to provide supports to individuals where there is good evidence the intervention is safe, cost effective and significantly improves outcomes.
• Action 3.8: The National Disability Insurance Agency should implement reforms to the participant pathway using an iterative, inclusive approach to design and testing, and ensure participants experience a smooth transition to the new arrangements.
• Action 3.9: The Australian Government should update and clarify legislation to support a more effective approach to determining access.
• Action 5.5: The National Disability Insurance Agency should reform the approach to appointing nominees, provide improved training and information to nominees, and increase oversight of nominee decisions.
• Action 6.2: The National Disability Insurance Agency should reform the pathway for all children under the age of 9 to enter the NDIS under early intervention requirements. 
• Action 6.3: The National Disability Insurance Agency should introduce a more consistent and robust approach to assessing developmental delay.
• Action 6.4: The National Disability Insurance Agency should change the basis for setting a budget to a whole-of-person level, and introduce a new needs assessment process to more consistently determine the level of need for each child and set budgets on this basis.
• Action 6.5: The National Disability Insurance Agency, in partnership with the Department of Social Services and the National Disability Supports Quality and Safeguards Commission, should require early intervention capacity building supports for children be based on best practice principles and evidence.
• Action 6.6: The National Disability Insurance Agency should develop and implement an approach for ongoing monitoring and evaluation of the effectiveness of early intervention for children. 
• Action 7.1: The National Disability Insurance Agency should introduce a new approach to psychosocial disability in the NDIS based on personal recovery and optimising independence.
• Action 7.2: The National Disability Insurance Agency should establish an early intervention pathway for the majority of new participants with psychosocial disability under section 25 of the National Disability Insurance Scheme Act 2013.
• Action 8.1: The National Disability Insurance Agency should change the budget setting process to ensure that housing and living budgets are consistent and sustainable.
• Action 9.4: The National Disability Insurance Agency should remove the Improved Liveability category for new Specialist Disability Accommodation (SDA) developments, and review the remaining SDA categories and associated Design Standards to evaluate their effectiveness.
• Action 9.5: The Australian Government should transition responsibility for advising on Specialist Disability Accommodation pricing to the Independent Health and Aged Care Pricing Authority and introduce more flexibility to the way prices are set.
• Action 9.7: The new National Disability Supports Quality and Safeguards Commission should strengthen Specialist Disability Accommodation (SDA) regulation to ensure dwellings are managed in accordance with the needs of participants and mandate the separation of SDA and living support providers.
• Action 9.9: The National Disability Insurance Agency should amend its change of circumstance and Specialist Disability Accommodation (SDA) policies to reduce the bedroom count of ageing SDA dwellings.
• Action 9.10: The National Disability Insurance Agency should introduce a new Specialist Disability Accommodation (SDA) category for participants funded for shared living supports but not eligible for existing categories of SDA. 

Markets and support systems that empower people with disability

• Action 10.5: The Australian Government should develop and implement a clear transition path for existing Plan Managers.
• Action 11.1: The Department of Social Services should develop a new NDIS pricing and payments framework to be administered by the National Disability Insurance Agency and the Independent Health and Aged Care Pricing Authority, including better ways to pay providers to promote the delivery of efficient and quality supports and continuity of supply.
• Action 11.3: The Australian Government should transition responsibility for advising on NDIS pricing to the Independent Health and Aged Care Pricing Authority to strengthen transparency, predictability and alignment.
• Action 12.2: The new National Disability Supports Quality and Safeguards Commission should make quality improvement a priority in capacity-building initiatives and audit processes.
• Action 12.3: The new National Disability Supports Quality and Safeguards Commission, working with the Department of Social Services, should design, test and implement an approach to measure and publish metrics of registered provider performance.
• Action 16.2: The National Disability Insurance Agency should design, pilot and implement a new individual risk assessment and safeguard building process.
• Action 16.4: State and territory governments, with support from the Department of Social Services, should ensure participants can access high-quality, nationally consistent Community Visitor Scheme offerings that interface with the NDIS.
• Action 16.5: State and territory governments should establish or improve adult safeguarding agencies to deliver a universal service offering for the safeguarding of all people at risk of harm, including people with disability.
• Action 17.1: The Department of Social Services and the new National Disability Supports Quality and Safeguards Commission should design and implement a graduated risk-proportionate regulatory model for the whole provider market.
• Action 17.2: The Department of Social Services and the new National Disability Supports Quality and Safeguards Commission should develop a staged implementation approach to transition to the new graduated risk-proportionate regulatory model.
• Action 17.3: The Australian Government should amend the National Disability Insurance Scheme Act 2013 to remove the link between a participant’s financial management of their plan and the regulatory status of their support providers.
• Action 17.4: The Department of Social Services, working with the new National Disability Supports Quality and Safeguards Commission and state and territory agencies, should expand the coverage of worker screening requirements.
• Action 17.5: The Department of Finance and the Department of Social Services, working with the new National Disability Supports Quality and Safeguards Commission and state and territory agencies, should improve, streamline and harmonise worker screening processes for care and support workers.
• Action 18.1: All Australian governments should agree a joint action plan for meaningful collaboration and a stronger focus on corrective actions against providers to reduce and eliminate restrictive practices, and review interventions and practices that may be harmful. 
• Action 19.2: All Australian governments should prioritise greater collaboration, consistency and timely exchange of data and information to ensure effective quality and safeguarding, including expanding the coverage of the NDIS Quality and Safeguards Commission to become the National Disability Supports Quality and Safeguards Commission.
• Action 19.3: The Australian Government should ensure the new National Disability Supports Quality and Safeguards Commission has the resources, powers and approach to proactively and effectively regulate the disability supports market.

Stewardship of the unified ecosystem

• Action 20.3: National Cabinet should establish a new permanent Disability Advisory Council reflective of the diversity of people with lived experience of disability to advise Disability Reform Ministers.
• Action 20.5: National Cabinet should establish a Disability Outcomes Council to monitor and publicly report on the performance of all governments in meeting the outcomes, commitments and benchmarks outlined in the Disability Intergovernmental Agreement.
• Action 21.1: National Cabinet should be accountable for the sustainability of the unified disability ecosystem, including the NDIS.
• Action 21.2: The Department of Social Services, in consultation with state and territory governments, should review existing National Disability Insurance Agency operational guidelines to identify and prioritise opportunities to strengthen the National Disability Insurance Scheme Act 2013 and Rules.
• Action 21.4: The Australian Government should clarify roles of relevant agencies for administration market stewardship, pricing, policy, regulation, commissioning and legislation.
• Action 22.3: The Australian Government should re-design the Participant Service Guarantee to prioritise high quality, transparent and efficient decisions and improved participant experience.
• Action 23.2: The Department of Social Services, in consultation with the National Disability Insurance Agency, the new National Disability Supports Quality and Safeguards Commission and the Independent Health and Aged Care Pricing Authority, should establish and manage an NDIS Evidence Committee to provide guidance on reasonable and necessary disability supports.
• Action 23.3: The Department of Social Services should establish a new Disability Research and Evaluation Fund to coordinate and fund research and independent evaluation activities.