Who is regulating the NDIS commission?

Today’s insight from the realm of the NDIS comes from a support provider for individuals with intellectual and psychosocial disabilities. This provider is noted for their diligent reporting of incidents, but they’ve been encountering issues with the NDIS Quality and Safeguards Commission’s delayed responses, sometimes taking years to close submissions (5 years is the longest I’ve seen).

Despite the provider’s consistent efforts in reporting, the Commission’s feedback has been generic and slow, raising questions about the efficiency of their processes.

I find it a little hypocritical that NDIS Service providers must prove their continuous improvement, but the practice standards were last reviewed in November 2021 and reportable incident detailed guidance was last updated in June 2019.

Issue 1: The NDIS Commission expects providers to respond with very little upfront details to work with

But I digress, this is about specifics. The provider received a call from the commission in May this year at 5:45pm one evening. The details of the complaint were (paraphrased for privacy and names changed):

“It is alleged that in August 2023 one of senior managers Jane Doe verbally abused and threatened NDIS participant named Sam at SIL house located: street address in Australia.

Please be advised that the NDIS Quality and Safeguards Commission (NDIS Commission) received relevant complaint

As this allegation has been classed as possible abuse of person with disability and mandatory reporting rules for Registered Providers apply, you will be further contacted”.

On the phone the provider was advised verbally that investigating this complaint with an external investigator would be a good approach to this complaint / reportable incident.

The provider called me. Confused. He asked if I would take on this investigation so that they can maintain their compliance. He then advised that no participant named Sam had ever received support from the SIL location they advised. We also did not have a last name for Sam.

Whilst I am a true believe that any allegation of poor practice from a person employed by a disability service provider to a person paying for services MUST be reviewed, I am also a realist. To initiate an investigation on this matter, would only prejudice the senior manager. There was no way to initiate any form of questioning about something that vaguely happened over 9 months ago. The provider had never received any negative feedback about Jane. The CEO’s personal opinion is that Jane was the type to overly advocate for participants rights. We also couldn’t be sure who “Sam” was, as the organisation provides services to 3 Sams. To be on the safe side, we reviewed all incident reports from August 2023, which mentioned “Sam” and “Jane” or ‘senior manager’. We found 2 notes for different “Sam’s”. Both were about when the Senior Manager was required to intervene as ‘Sam’ was escalating and the rostered worker was not sure how to respond. To ensure a risk approach, we risk assessed Jane’s ability to continue to provide support and have filed the record. There was also a push from the provider to participants on how to make complaints.

I’m not saying that this complaint should not have been raised with the provider, but there is a continuous improvement opportunity to be driven by the commission. They could provide guidance to providers on what to do with complaints of this nature. There should also be the reciprocal responsibility for the Commission to provide more guidance to providers when they request information. What did the provider do well, in addition to their own corrective actions, is there something else they should consider. This does not need to be a formal compliance action, but a soft recommendation, have you considered xxxx. Other providers like you have had good results by doing yyyy.

Issue 2 – The NDIS Commission’s systems are not connected, resulting in duplication and the chance something critical might be missed

Simultaneously, they have been fielding other enquiries. Over the last 10 months, they have responded to the same enquiries from 3 different departments in the Commission. Long story short, the provider caught out one of their front-line workers not behaving in accordance with their values. They investigated and terminated the staff member and made a reportable incident to the commission:

1. 1. Six Months after the incident, the reportable incidents team emailed asking for more detailed information, with a 10 day turn around.
   2. Two months after that the Compliance and Enforcement Branch emailed, asking very similar questions. This time there was a 20-day window to respond.
   3. This month they received another email looking very similar to the first 2 with an additional question from the NDIS Worker clearance team.

A suggestion to fix this seems simple – Invest in a technology solution that allows you to see trends and share information across departments. Small features that should be considered in your scoping:

1. 1. The ability to track correlation between reportable incidents and complaints
   2. Visibility of multiple complaints against the same service provider which all might have a slightly different skew, but all lead to a systemic issue
   3. One reportable incident / complaint = one file. Everyone in the commission adds to that file (with appropriate security provisioning of course). Reducing the time and effort needed by all parties
   4. Ability to track advice given to providers. Is there a consistent issue that needs to be fixed across the scheme
   5. And finally remember to declare any fancy lunches that are bought for you during this selection process.

 

Issue 3 – No clear boundaries or scope of practice for complex supports

And then the final one for the month was again, a complaint. At least this one had some detail but allegations included:

• NDIS Participant was living off soft drink and cereal and was not provided with an adequate supply of food of sufficient nutritional quality and variety
• The NDIS Participant was admitted to hospital and absconded whilst under hospital admission. It is alleged the provider was negligent.

As an investigator, this was a reasonably simple investigation as the provider kept copious forms regarding their service delivery. My concern with this complaint is that it is outside of scope for the commission. I appreciate people with disability are more likely to have a premature death, mostly due to preventable causes such as being overweight or not having a nutritionally balanced diet. But in a scheme where we are pushing a reduction in restrictive practices and the agency is continuing to push back on funding activities of normal daily living (such as groceries), how should a provider navigate this?

Secondly, the intersection between health, justice and disability is currently done very poorly. The person who should hold the accountability for good outcomes is the participant themselves, but often due to their disability and trauma, they don’t have the skills or capacity to fulfil this type of role. So we are left with an NDIS regulator that can only hold registered service providers to account when the broader system fails an NDIS Participant.

Now some of you might call me a cynic, but my guess (and we shall see in the Q4 Commission activity report) is the NDIS Commission is ticking boxes. They still only have a 55% closure rate for complaints in 90 days. And if you were a bigger cynic than me, you might also suggest the regulator is trying to find ways to drive up their compliance action numbers….

Imagine a realm where all parties involved in support to a person with disability had a consistent understanding of what to expect from other stakeholders. Whilst a very large task, the Commission could devise the baseline skills required for all the different roles in the scheme. There is a wealth of safeguarding structures already fundamentally built in. The issue is people haven’t been fully educated on their broader role of safeguarding. Behaviour Support Practitioners, Support coordinators, Ots, Speech therapists, the list goes on… If everyone has the same expectations about what good quality service looks like, we can all regulate each other.

Regulatory oversight is crucial, the current system needs refinement to ensure it is effectively serving those it is meant to protect, avoiding bureaucratic delays, and focusing on meaningful improvements. Whilst the NDIS Review pointed to some positive improvement suggestions, it did not go back to first principles of how to properly develop and deploy a functionally successful enterprise. Without fundamental changes to ‘how’ the commission functions (not necessarily on “what” they regulate), the scheme will continue to battle safeguarding issues and be an inefficient use of taxpayer funds.

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