A new risk-proportionate model for regulation of providers and workers

There are gaps in oversight of providers, particularly when delivering high-risk supports

In the NDIS, the registration process aims to ensure that providers and their workers are reputable and have the skills and knowledge to deliver supports. While registration is not a guarantee of either safety or quality, it ensures visibility and does indicate a provider has taken steps to deliver supports professionally and competently, and is an important way of holding providers to account.

However, most providers can opt-out of registration. Registration is only mandatory for a limited number of high-risk support types, and the market of unregistered providers is larger than originally expected. This growth in unregistered providers has been driven by a large number of self-managing and plan-managing participants - 29 per cent of participants self-manage all or part of their plan and around 60 per cent use a Plan Manager, and both can access unregistered providers.²⁴⁶ Similarly, the ability to access unregistered providers has driven demand for self-management and plan-management.

In April to June of 2022-23, over 154,000 unregistered providers received a payment from a Plan Manager.²⁴⁷ This compares to a total of around 16,000 registered providers currently in the market.²⁴⁸ The total number of unregistered providers is even higher. Limited visibility of payments made by self-managing participants to unregistered providers (including who receives payments and for what purpose) means the total number of unregistered providers is actually unknown.

Unregistered providers are not required to meet any specific standards beyond the basic expectations in the NDIS Code of Conduct, which describes broad community expectations of expected behaviours for providers and workers involved in support delivery.²⁵⁰ This means that there are many providers ’flying below the radar’ with limited regulatory oversight. This leaves participants potentially exposed to risk - particularly those who have complex needs or circumstances.

Some participants may not fully understand the risks they are engaging with, how to manage them or what their rights are, or may have more limited capacity to advocate for themselves. This is a particular concern for the majority of adult participants who have a cognitive disability. Many would benefit from support for decision-making, as would the around 50 per cent of participants aged 18 years or below who may require additional support, especially as they move through the adolescent years towards adulthood.²⁵¹

The NDIS Quality and Safeguards Commission (NDIS Commission) does not have visibility of the significant unregistered provider market. This means the NDIS Commission cannot effectively monitor the market or proactively intervene to prevent harm and promote quality improvement, and has fewer options for taking action against providers if something goes wrong.

There are also excessive and duplicative regulatory burdens for providers delivering lower risk supports

Registration was designed to be proportionate to the risk and complexity of different support types and providers.²⁵² This is reflected in the NDIS Practice Standards for providers and varying intensity of compliance auditing.

However, the application of proportionality in registration is variable. The scope, coverage and intensity of standards and audits are not necessarily linked to a provider's size or the risk and complexity of support delivery.

NDIS providers who work across the wider care and support sector have expressed particular concerns about undue regulatory burdens. Meeting requirements across the wider sector can be duplicative and costly for providers. We have heard of specific issues, including overlap with Aged Care Quality and Safety Commission standards, National Regulatory System for Community Housing reporting requirements, Australian Health Practitioner Regulation Agency requirements and some Australian Commission on Safety and Quality in Health Care standards.

There is also a lack of clarity about the expectations and obligations of providers. The NDIS Practice Standards set expectations for providers on their role and outcomes, in addition to supporting participants to understand what they can expect from providers. However, there are a range of support types that do not have specific NDIS Practice Standards, including current Support Coordination and the proposed Navigator function, and Supported Independent Living or 24/7 living supports. The Practice Standards have also not been updated to reflect new supports and delivery models.

Worker screening is not consistently ensuring the NDIS workforce has the skills and knowledge to deliver safe and quality supports

Workers are critical to safety and quality, yet there are limited preventative safeguards that apply to all NDIS workers. Worker screening can help identify workers who may pose unacceptable risks to participants. However, its effectiveness is limited by only being mandatory for those working for registered providers.

We have heard of instances of workers - who may otherwise be considered to pose an unacceptable risk of harm to people with disability and therefore be excluded from an NDIS Worker Screening Check - establishing themselves as unregistered providers or working for unregistered providers to avoid NDIS worker screening requirements.

Unregistered providers can opt-in for worker screening, and self-managing and plan-managing participants can request their workers undergo worker screening. Despite this, only 6,467 of more than 154,000 unregistered providers have any workers with an NDIS Worker Screening Check as of 30 June 2023.²⁵⁸

Worker screening is not sufficient to guarantee all NDIS workers can deliver safe and quality supports. We have heard concerns about whether workers have the necessary skills, competencies and qualifications.

Worker screening is also inconsistently operationalised across states and territories, can be a slow process, and can be duplicative with other worker screening requirements. Taken together, this can lead to delays for employers in sourcing workers, including creating barriers for workers from other sectors to join the NDIS workforce.

Regulatory settings have not reflected changes in the market

Regulatory settings have not been updated to reflect changes in the market, including the introduction of new supports such as platform providers. This has caused uncertainty for providers and workers about what they are expected to do, and how to comply with requirements or manage issues as they arise. This can impact the safety and quality of supports that participants receive, and also acts as a barrier to innovation.

A number of long-standing and emerging quality and safeguards issues would benefit from a more active approach by the NDIS Commission. This includes issues related to conflicts of interest and client capture, sharp practices (including unfair service agreements), transparency and duties of care.