Organisations which provide services to NDIS participants are regulated by the National Disability Insurance Scheme Act (NDIS Act) and its associated Rules.  Broadly, there are two types of provider – registered and unregistered – and unregistered providers have fewer statutory obligations but are only permitted to provide certain types of service to certain classes of NDIS participants. 

Aged care providers have been granted a statutory grace period in relation to certain registered provider requirements – allowing them to provide services that could otherwise only be provided by registered NDIS providers.  This grace period was scheduled to end on 30 June 2020 but has been recently extended to 30 November 2020. So, what does this mean for your organisation?   

What happens from 1 December 2020?

From 1 December 2020, aged care providers that are an unregistered provider under the NDIS legislation will be in breach of that legislation if they provide services to NDIS participants in circumstances where:

1. the service is a type of support that can only be provided by a registered provider under section 7 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules (Cth); or

2. there is, or is likely to be, an interim of ongoing need for regulated ‘restrictive practices’ in the course of providing a service to the NDIS participant – significantly, this restriction appears to apply even if the services are being provided under the aged care scheme instead of the NDIS.

The above restrictions will apply in addition to the current restrictions that apply to unregistered NDIS providers – for example, section 33(6) of the NDIS Act which prohibits unregistered NDIS providers from providing supports where the funding for those supports under the participant’s plan is managed by the National Disability Insurance Agency.

My organisation is unregistered and provides services under the current grace period.  What do we do between now and 30 November 2020?

Your organisation has two options – become registered, or use this time to make arrangements with any affected NDIS participants so that it only provides unregistered NDIS provider services from 1 December 2020.

Option 1: Registration

Section 73E of the NDIS Act sets out the steps your organisation must take to become registered, which include:

1. submitting an online application to the NDIS Commission;

2. passing an approved quality auditor’s assessment of your organisation; and

3. passing the NDIS Commission’s suitability assessment of your organisation and key personnel.

You can find more information regarding the provider registration process here.  The registration process can take substantial time and effort to complete, so if your organisation wishes to become registered by 30 November 2020 it would be prudent to start this process as soon as possible.  

Option 2: Don’t register

Your organisation may decide to continue as an unregistered NDIS provider.  If so, your organisation should use this time to identify which customers are (or are at risk of becoming) a class of participant that the organisation cannot provide services to from 1 December 2020 and develop an appropriate strategy in relation to those affected customers in full consultation with them and their representatives.  This management process may also take substantial time and effort to complete – for example, if it is necessary to arrange for the customer to transition into suitable alternative accommodation – so it would be prudent to start this process as soon as possible. 

Need help?

Your organisation now has additional time to choose and implement one of these two options.  However, it is important to not underestimate the amount of time, effort and resources needed to execute your chosen strategy effectively and before the end of the extended grace period.  Your organisation will also need to ensure that it meets its obligations under the NDIS legislation as well as the aged care legislation during the execution process, which may present challenges. 

If you require any assistance, please call us on 02 9199 4563.  We are recognised experts in these areas of law and would be delighted to assist you.  

 This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you.  Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.