Legislative Changes to NDIS Explained (Part 2)

Part 2 of the video has now been officially released on YouTube, where you can watch my detailed and comprehensive digest of the recent legislative changes that have taken place in the past few months.

We recommend to watch the video on YouTube but below you can read the transcript to the video:

These are the following section that I will cover in today’s Part 2 of the video and let’s jump in.

Section 33: Inclusion of Total Funding Amounts and Periods in Plans

Section 47A: Plan Variations

Section 30: Information Gathering for Participant Status Revocation

Section 30A: Eligibility Reassessments

Section 45A: Claims and Payments Framework

Section 32L: Support Needs Assessment

Section 32K: New Planning Framework

Definition of NDIS Supports (Section 10): This temporary rule is in place until July 2025, at which point the final definitions will be confirmed.

Essentially, the legislation now divides supports into two categories: NDIS supports, which are eligible for funding, and non-NDIS supports, which are not. Previously, the distinction was murky, especially for items or services straddling the line between disability-related and everyday living expenses. These amendments aim to remove that ambiguity and ensure NDIS funds are spent on supports directly tied to a participant’s impairments.

The new rules also introduce the concept of replacement supports. These are typically alternative, or non-evidence-based supports that aren’t usually eligible for funding but may be approved under specific circumstances. The way the replacement supports work – is exactly what it sounds like, they are aimed at replacing an existing or already approved NDIS- support in the participant’s plan with a non-NDIS-support.

Previously, the NDIS lacked clear definitions of what could be funded, leading to significant grey areas that, unfortunately, allowed for some exploitation by both providers and participants. Now, the government is addressing these vulnerabilities by defining which services qualify as NDIS-funded supports, focusing on those that are evidence-based. Supports that don’t meet this standard are classified as non-NDIS supports. And, participants who need alternative options can apply for replacement supports if necessary.

LISTS

These lists didn’t appear out of nowhere. Between August 4 and August 25, 2024, the government sought feedback from participants, providers, and other stakeholders. The consultation received over 6,000 survey responses, nearly 1,000 emails, and 120 submissions from organizations and peak bodies. Given there are      in the scheme, some argue this is a modest response. Moving forward, the NDIA has committed to improving accessibility during consultations by providing materials in formats like Easy Read, Auslan, and languages other than English.

Approved NDIS Supports List

These are supports that the NDIS typically funds, which are directly related to a participant’s impairment and essential for their daily functioning, independence, or improved quality of life. Examples include:

Therapeutic Supports: Services like speech therapy, occupational therapy, or physiotherapy.

Assistive Technology: Mobility aids like wheelchairs, hearing aids, and communication devices.

Home Modifications: Adjustments such as ramps, grab rails, or bathroom redesigns to support independent living.

Personal Care: Assistance with daily tasks like dressing, showering, or meal preparation.

It’s worth noting that just because a specific piece of assistive technology isn’t on a list doesn’t automatically exclude it. As the NDIA has stated, the scope of assistive technology is broad, and many items may still qualify as NDIS supports.

Non-NDIS Support List

On the flipside there are 15 categories of supports that NDIS will not fund because they are either considered the responsibility of other sectors, like health or education, or they lack a direct disability-related focus or are not-evidence based.

Examples include:

• General Medical and Health Services: Hospital treatments, primary health care, and medication are considered mainstream health services, not disability-specific, and are covered by Medicare or private insurance.

• Education-Related Costs: School fees, tutoring, or vocational training fees are categorized under education services, which the education system is responsible for funding.

• Social and Recreational Outings Without a Disability Focus: General leisure activities, like cinema tickets, are not considered necessary for disability support unless they serve a therapeutic purpose in the participant’s plan.

• And if you are wondering – Sex therapy or any type of sexual services will not be funded under the new legislative changes as well as alcohol or drugs. Interestingly, in a recent interview on the Summer Foundation’s YouTube channel, NDIA CEO Rebecca Falkingham clarified that while sex services are excluded, adaptive sexual equipment can still be funded if it’s considered necessary. (Side note: If you haven’t checked out that podcast, hosted by Dr. George, it’s worth a listen.)

Supports Moved to Non-NDIS Status:

• Alternative Therapies with No Evidence Base: Certain therapies that lack sufficient evidence of effectiveness for disabilities are now excluded from NDIS funding.

Replacement List

The replacement list includes supports that are specifically excluded from being funded by the NDIS. These are typically alternative therapies or non-conventional treatments with limited or no proven benefit for disability management, especially if they are deemed not “reasonable and necessary.”

Apart from meeting the reasonable and necessary criteria, a replacement support must also meet the following criteria. It must:

• They must replace an existing NDIS support in the participant’s plan.

• They must provide the same or better benefit as the original support.

• They must cost the same or less as the original support in the participant’s plan.

  Examples of replacement Supports:

• Alternative and Complementary Therapies: Treatments like crystal healing, reiki, and aromatherapy, forest therapy, myotherapy, remedial massage, which lack scientific evidence in disability treatment, are now explicitly excluded.

• Recreational, Hobbyist, or Luxury Goods: Items not essential to daily living, such as gaming consoles or non-adaptive fitness equipment, are excluded unless they serve a therapeutic purpose.

Which Groups are Most Affected?

These changes will mostly impact participants with disabilities that are often managed through alternative or holistic treatments. For instance:

• Individuals with Sensory Disabilities: Who may have previously accessed certain alternative therapies for sensory processing.

• Participants with Complex Psychosocial Disabilities: Some alternative therapies were used by individuals with anxiety or mental health conditions, which now need to be replaced by evidence-based interventions.

• Chronic Pain or Neurological Disorders: Participants managing chronic pain through non-traditional means may need to shift to approved therapies like physiotherapy or approved pain management techniques.

One final, but crucial, point about these transitional rules regarding NDIS supports:

Will the NDIA raise a debt against participants who claim non-NDIS supports? To answer this, let’s refer to the interview between Dr. George and NDIA CEO Rebecca Falkingham on the Summer Foundation’s YouTube channel. Rebecca assures that there will be plenty of opportunities for participants who unintentionally claim non-NDIS supports to work with the NDIA. The focus will be on education about the changes, with raising a debt being an absolute last resort. If the NDIA ever decides to pursue a debt, then the CEO – Rebecca Falkingham must personally sign off on that decision. This ensures that raising a debt is the absolute last resort and that every case is carefully considered at the highest level.

In practical terms, this means that if a participant accidentally uses their funding on a non-NDIS support costing less than $1,500 up until October next year, they won’t face immediate consequences but may receive up to 2 warnings from NDIA. However, NDIA CEO - Rebecca also made it clear that intentional and repeated spending on non-NDIS supports is a different matter. In such cases, the NDIA may consider using tools outlined in recent legislation, such as switching the participant’s plan management type. If the behavior continues despite these measures, the NDIA may ultimately pursue more serious action, including raising a debt.

The key takeaway? Mistakes are okay, but learning and adapting to these new rules is essential to avoid complications.

What does this mean for the providers?

Providers were given 30 days to comply to the new NDIS lists - the new legislation changes. As the NDIA has the authority to raise debts against those who acquire or provide supports that are not classified as NDIS supports or do not comply with a participant's plan, especially if the NDIA has paid for these services. To avoid such issues, providers are advised to familiarize themselves with the updated lists of approved and non-approved NDIS supports.

Inclusion of Total Funding Amounts and Periods in Plans (Section 33):

Plans approved after the legislation's commencement will specify total funding amounts, funding component amounts, and funding periods. This change provides clarity on available funds and their intended duration. This update is also significant because it adds a layer of control over spending, ensuring participants can better manage their budgets throughout the plan’s duration. It addresses the issue of participants exhausting funds prematurely, which could otherwise lead to unpaid provider invoices or lapses in essential supports before a new plan begins. Additionally, the amendment strengthens the NDIA’s oversight, allowing it to intervene by changing plan management if it identifies signs of funding mismanagement.

However, this structured approach to funding periods may not work as well for everyone. For participants with fluctuating conditions, this setup could actually create more challenges. If their condition suddenly worsens and they require additional supports or funding within the allocated period, they may find themselves in a tough spot with insufficient resources until the next funding cycle kicks in.

This could force participants to navigate difficult conversations with the NDIA to justify urgent funding adjustments or risk going without essential supports. For people with fluctuating needs, this rigidity may feel less like financial security and more like a constraint that fails to recognize the unpredictable nature of their conditions. While the amendment aims to create transparency and control, it’s crucial that the system remains flexible enough to accommodate those who need more dynamic support planning.

Compared to the original 2013 NDIS Act, this is a significant shift—prior to which, plans didn’t need to spell out funding in this much detail.

Again, NDIA is able to change the plan management if they believe there is funding mismanagement.

Plan Variations (Section 47A):

This section is addressing plan variations for the new plans completed after 3rd of October. Although, we were already able to apply for a plan variation prior to this legislation.  NDIA is advising that even the introduction of funding amounts and funding periods can now be varied through this process. However, the process remains subject to the NDIA’s discretion, meaning participants must provide sufficient evidence to justify any requested variation.

Information Gathering for Participant Status Revocation (Section 30):

The NDIA can request specific information or require participants to undertake certain actions, such as an assessment,   when considering revoking participant status. Non-compliance within a reasonable timeframe may lead to revoked participant’s access to NDIS.

This section is distinct from the 2013 Act, which lacked specific provisions for systematically requesting information or requiring participants to take actions, such as undergoing assessments, before revoking their access. The amendment outlines a clear timeline, requiring participants to provide the requested information within 90 days, with the possibility of extensions in certain circumstances.

Now, if a participant's status is revoked and they seek a review of this decision, they cannot make another access request until the review is complete. If the review confirms the revocation, the individual must wait 12 months before submitting a new access request.

Previously to the change, the person was allowed for immediate reapplication to access NDIS again following a review confirming revocation. The amended legislation imposes a 12-month waiting period after a confirmed revocation, adding a wait-time to re-accessing the NDIS.

Eligibility Reassessments (Section 30A):

The new Section 30A introduces provisions for eligibility reassessments, outlining circumstances where certain groups may be required to undergo a review of their NDIS eligibility. This is a key change from the original NDIS Act 2013, which did not explicitly address ongoing reassessments for participants after their initial access was granted. The original Act primarily focused on the initial assessment of eligibility, with little mention of systematic or mandatory reassessments after a participant entered the scheme.

While participants could voluntarily request changes to their plans, and the NDIA could review plans in certain circumstances, there was no explicit requirement for eligibility reassessments tied to specific milestones or situations.

Under the new amendments, eligibility reassessments can be triggered by specific milestones or changes, such as when children reach a certain age—like turning 9—and transitioning out of the early intervention stream.

The NDIA’s focus seems to be on ensuring that eligibility remains consistent with the scheme’s objectives, particularly as participants’ needs or circumstances change over time. While this adds a layer of accountability to the system, it also places additional demands on participants and their families, who most likely will require to provide updated evidence or navigate a reassessment process.

Claims and Payments Framework (Section 45A):

The new Section 45A of the NDIS Act introduces a significant change by establishing a two-year time limit for making claims. Self-managed participants and providers must now submit claims within two years of receiving or delivering the support. This is a notable departure from the original 2013 Act, which did not impose a strict time frame for submitting claims

This section protects the NDIA from managing delayed or retroactive claims, which could complicate budget forecasting and fund allocation. However, this change could pose challenges for self-managed participants or providers who may struggle with record-keeping or timely submission due to complex needs or administrative hurdles. The positive side is this change will undeniably bring greater financial oversight within the scheme preventing potential misuse of the funding.

Support Needs Assessment (Section 32L):

The introduction of Section 32L in the NDIS Amendment Act marks a shift from the original 2013 NDIS Act, which did not mandate a formalized Support Needs Assessment as part of the planning process. This new section introduces a structured framework where participants will undergo an assessment to document their comprehensive, whole-of-person disability support needs.

Unlike the original Act, which focused on eligibility and planning based on functional assessments and other participant-provided information, this amendment creates a more systematic approach to identifying and recording needs.

However, the implementation of this assessment has not yet been confirmed, leaving questions about how it will be integrated into the broader planning process. The practical application of this section, however, will also depend heavily on how the NDIA implements and enforces this requirement. Without clear implementation guidelines, there is a risk of delays or inconsistencies that could impact participants. 

New Planning Framework (Section 32K):

The introduction of the new planning framework represents a notable shift from the original 2013 Act, though its specifics remain largely undefined. According to the NDIS website, the new framework will introduce a flexible budget, determined using a support needs assessment. This marks a departure from the more rigid funding structures under the 2013 Act, which allocated funding without a standardized method for tailoring budgets to dynamic or individualized support needs. While this sounds promising in theory—offering the potential for budgets to be more adaptive to a participant’s actual requirements—there are still significant gaps in understanding how it will be implemented.

For example, questions remain about how these needs assessments will be conducted, whether they will account for fluctuating or evolving conditions, and how quickly adjustments can be made.

Implementation for this rule is yet to be confirmed.

if you are still with me, wow I admire your patience! It is quite a lot to digest.

So here’s my small piece of information that I promised earlier that may save you a bit of time with your admin: If you’re still using old NDIA consent forms, I am referring to: Consent for a third party to act on behalf of a participant and Consent for the NDIA to share your information, the NDIA has started to phase out and deny them. It’s time to switch to the updated version (released July 2024). Using the correct form could save you from unnecessary delays and I have included a link to this form on the NDIA’s website in the video’s description below.

Alright, so that’s a comprehensive look at the recent changes to the NDIS Act and how they compare to the original 2013 framework. While the updates aim to create more clarity, accountability, and alignment with participants’ actual needs, it’s clear this is already causing significant challenges to navigating the new legislations and here is why:

The tightening of the rules around what constitutes NDIS supports versus Non-NDIS supports has created a lot of confusion in the sector. Plan managers are now caught in the middle, tasked with enforcing these new rules, while participants and service providers struggle to understand why their services are no longer covered.

In many cases, supports that had been previously approved informally by the NDIS—whether through verbal agreements or past approvals that were not clearly documented—are now being rejected by plan managers based on the new legislative changes. This shift has been especially problematic because many participants and providers had been operating under the assumption that these supports were guaranteed as part of the plan. With no foreshadowing of what’s really to come.

Participants are now facing service disruptions, as their regular supports may suddenly be deemed ineligible for NDIS funding. Many are being told to source these services through other means, like using personal funds or finding other local services or government schemes, which can cause a lot of stress especially where a participant does not have the financial means to alternative supports they can rely on.

For providers, this shift is causing payment delays and rejected invoices. Many service providers are experiencing a cash flow crunch as plan managers reject payments for services that were previously approved. This is particularly challenging for providers who rely on timely payments to keep their businesses running. Some providers have found themselves in disputes with NDIA and plan managers over what constitutes an NDIS-funded support versus a replacement or mainstream support.

Of course there are contradictions near and far with NDIA, the general consensus in online community group is “Just call NDIA enough times until you receive an answer you are after”… Great.

Support coordinators are also finding themselves in difficult positions, having to explain to participants why certain services are no longer covered and helping them transition to new funding sources or alternative supports, and in most cases this is not even possible.

The government is now truly clamping down on the spending and the misuse of the NDIS funding overall. While they have acknowledged a need for foundational supports outside of NDIS where people with mild disabilities or ones that don’t qualify for NDIS can turn to. Nothing really has been done so far apart from talking about it and making recommendations whilst the cost cutting within NDIS has already begun.

As we navigate these changes, one thing is certain: staying informed and proactive will be key. If you’re a participant or provider, take the time to understand how these updates might affect your plans, supports, or funding. And don’t hesitate to reach out for advice or guidance if you need help.

If you found this breakdown useful, please give the video a thumbs up, subscribe, and share it with anyone who might benefit from understanding these changes. Let me know your thoughts in the comments—I’d love to hear how these changes are impacting you or your work. Thanks for watching, and I’ll see you next time with more NDIS updates and insights.