Mamre NDIS News #12

What is 'reasonable and necessary'?
 
In an earlier NDIS News we explained that the NDIS would fund ‘reasonable and necessary supports’. In summary we said that the National Disability Insurance Agency (‘NDIA’) does not provide a list of what supports a person can seek, some guidance is provided in the National Disability Insurance Agency Act and that supports must be clearly linked to the individual's needs and goals.
 
As the NDIS has rolled-out around Australia, the NDIA has made decisions about what is ‘reasonable and necessary’ and some people have sought a review of those decisions in the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal has given their view of what reasonable and necessary means. In this newsletter we will summarise some of these decisions.

Supports relating to health care

QUESTION: Is funding for portable oxygen or an insulin pump reasonable and necessary? 

In one case heard in Victoria a person applied for a range of supports to help him to increase his participation in community and physical activities. He also applied for portable oxygen or an insulin pump. The NDIA decided not to fund the portable oxygen or an insulin pump because it is more appropriately funded through the health system (although the health system isn’t providing it). The Administrative Appeals Tribunal confirmed this decision and referred to Schedule 1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports for Participants Rules).

ANSWER: Even where a support is not provided by the health care system, the NDIS will not fund medical treatment that is more appropriately funded through the health service system. 

Funding of sound therapy 

QUESTION: Is funding of sound therapy reasonable and necessary?

In a case heard in South Australia a mother sought funding for TLP, a form of sound therapy for her son with autism. Evidence considered by the Tribunal included information from a number of sources including therapists and a professor who had recently conducted a literature review for the NDIA about TLP. The Tribunal considered section 34 of the National Disability Insurance Scheme Act and in particular whether the therapy represented value for money and whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. The Support for Participant Rules say that in deciding whether the support will be, or is likely to be, effective, literature, lived experiences, things that the NDIA has learnt through its delivery of the NDIS and expert opinions can be considered. The Tribunal found that there was insufficient information to demonstrate that TLP will be, or is likely to be, effective and beneficial having regard to current good practice.

ANSWER: Funding for TLP was not reasonable and necessary because there was insufficient evidence that it would be effective.
 
Full-time in-home care
 
QUESTION: Is full-time in-home care a reasonable and necessary support and what is reasonable to expect families, carers, informal network and the community to provide?

In another case heard in Victoria a family that included a three year old with multiple complex disabilities as well as another older child without disability, a mother who was also a participant in the NDIS and a father who suffered from anxiety and depression sought 24/7 care for their three year old. The NDIA said that funding for 136 hours of care each week, which could be used flexibly, was reasonable and necessary taking into account “what is reasonable to expect families, carers, informal networks and the community to provide.”The Tribunal said that in deciding whether funding or provision of support is reasonable and necessary it must consider:
  1. what is reasonable to expect families, carers, informal networks and the community to provide (section 34(e) of the NDIA Act); and
  2. the Supports for Participants Rules (Rule 3.4) which says that, for a participant who is a child they must take into consideration:

“(i)   that it is normal for parents to provide substantial care and support for children; and

(ii)     whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and

(iii)    the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
 
(iv)   whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing.”
 
The Tribunal heard evidence of a family under extreme pressure and unable to cope using the resources, both funded and unfunded, that were available to them. The Tribunal varied the NDIA’s decisions and approved 24/7 care on the basis that the consequences for the family as a whole if the family became unable to cope would be serious.
 
ANSWER: In this case, full-time in-home care was reasonable after taking into account what is reasonable to expect families, carers, informal networks and the community to provide.
 
All of the cases summarised above and all the other decisions made by the Tribunal relating to the NDIS are available online. It is also important to remember that decisions are also successfully reviewed internally (see page 43 of the 10th Quarterly Report to COAG Disability Reform Council for statistics related to this).
 
News from the field - Queensland
 
- The full roll-out details of the NDIS in Queensland is available on the NDIA website.
- The Queensland 2016/17 Budget, released in June, increased state government funding for disability services in preparation for the roll-out of the NDIS in Queensland.
- In May the NDIS released the Queensland market position paper. This paper is a tool to help service providers prepare for the roll-out of the NDIS. It sets out information including the projected increased in numbers of people who are expected the access the NDIS, the expected impact on the workforce and geographical locations where increased capacity to meet that demand is needed.
- The Queensland ‘Disability State Conference’ (run by the Queensland Government with the NDIA as a conference partner) will be held on 24 August 2016. 
 
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