National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (81 of 2024)
Schedule 1 Main amendments
Part 1 Amendment of the National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Act 2013
36 After section 32
Insert:
32A Kinds of plans
(1) A new framework plan is a plan prepared in accordance with Subdivision B.
(2) An old framework plan is a plan prepared in accordance with Subdivision C.
32B Participants that are to have new framework plans
(1) The National Disability Insurance Scheme rules may specify:
(a) classes of participants that are to have new framework plans; and
(b) for each class so specified - the period within which the CEO must give notice under subsection (2) to participants in the class.
(2) The CEO must, within the period specified for the purposes of paragraph (1)(b) for a class, give a participant in the class written notice that the participant is to have new framework plans.
(3) The notice must include the details (if any) specified in the National Disability Insurance Scheme rules for the purposes of this subsection.
32BA Notice of impairments
Giving notice of impairments
(1) The CEO must give a participant a notice in writing in accordance with subsection (2):
(a) as soon as practicable after the participant becomes a participant; or
(b) if a circumstance specified in the National Disability Insurance Scheme rules for the purposes of this paragraph applies in relation to the participant.
(2) The notice must state:
(a) if the participant meets the disability requirements - the categories of impairments under subsection (3) that cover the impairments in relation to which the participant meets those requirements; and
(b) if the participant meets the early intervention requirements because of subparagraph 25(1)(a)(i) or (ii) - the categories of impairments under subsection (3) that cover the impairments in relation to which the participant meets those requirements; and
(c) if the participant meets the early intervention requirements because of subparagraph 25(1)(a)(iii) - that the participant has developmental delay.
(3) Each of the following is a category of impairments for the purposes of paragraphs (2)(a) and (b):
(a) intellectual impairments;
(b) cognitive impairments;
(c) neurological impairments;
(d) sensory impairments;
(e) physical impairments;
(f) impairments to which a psychosocial disability is attributable.
(4) A notice given under paragraph (1)(b) replaces any previous notice given under paragraph (1)(a) or (b) to the participant.
Varying notice of impairments
(5) The CEO may vary a notice given under subsection (1) if:
(a) either:
(i) the participant applies for the variation in accordance with subsection (6); or
(ii) circumstances specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph exist; and
(b) the CEO is satisfied that a statement in the notice is not, or is no longer, correct; and
(c) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this paragraph are met.
(6) An application under subparagraph (5)(a)(i) must:
(a) be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO; and
(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.
Subdivision B - Content of new framework plans
32C Application of this Subdivision
This Subdivision applies in relation to a plan for a participant if:
(a) a new framework plan has at any time come into effect for the participant; or
(b) the participant has been given a notice under subsection 32B(2) that the participant is to have new framework plans; or
(c) the CEO starts to prepare the plan after the end of the following period starting on the commencement of this section:
(i) 5 years (subject to subparagraph (ii));
(ii) such shorter or longer period as is specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph.
Note: If this Subdivision does not apply in relation to a plan for a participant, see Subdivision C.
32D Matters that must be included in a participant's plan
Participant's statement of goals and aspirations
(1) A participant's plan must include a statement (the participant's statement of goals and aspirations ) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant's living, including the participant's:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
Statement of participant supports
(2) A participant's plan must include a statement (the statement of participant supports ), prepared with the participant and approved by the CEO, that specifies:
(a) the participant's reasonable and necessary budget in accordance with sections 32E to 32K; and
(b) the general supports (if any) that will be provided to, or in relation to, the participant; and
(c) having regard to the needs assessment report for the plan, whichever of the following applies:
(i) that the participant meets the disability requirements;
(ii) that the participant meets the early intervention requirements;
(iii) that the participant meets both the disability requirements and the early intervention requirements; and
(d) the plan's maximum period of effect, starting on the day the plan is approved; and
(e) any circumstances in which the Agency must reassess the plan under Division 4; and
(f) the management of the funding for supports under the plan (see also Division 3); and
(g) the management of other aspects of the plan.
How general supports may be specified in plan
(3) The general supports that will be provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
Time limits for approving statement of participant supports
(4) The CEO must decide whether or not to approve the statement of participant supports:
(a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph (which may take account of section 36 (information and reports) and subsection 32L(7) (replacement assessments under section 32L)); or
(b) if there are no such rules - as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports) and subsection 32L(7) (replacement assessments under section 32L).
(5) However, subsection (4) does not apply if the preparation of the participant's plan is suspended under subparagraph 36(3)(b)(i) (which deals with failure to provide information or reports for an assessment under section 32L).
Requirements for CEO in approving statement of participant supports
(6) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) for any general supports specified under paragraph (2)(b) - be satisfied:
(i) that the supports will be, or are likely to be, effective and beneficial for the participant, having regard to current good practice; and
(ii) of any other matters specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph; and
(c) have regard to the principle that a participant should manage the participant's plan to the extent that the participant wishes to do so; and
(d) have regard to the operation and effectiveness of any previous plans of the participant; and
(e) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant; and
(f) be satisfied of any matters specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
Agency-managed funding - supports to be provided only by a registered NDIS provider
(7) To the extent that the funding for supports under a participant's plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider.
Plan may deal with additional matters
(8) A participant's plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.
Note: For example, a participant's plan may include arrangements for ongoing contact with the Agency.
Statement of goals and aspirations to be recorded in writing
(9) A participant's statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.
Note: Section 38 requires a copy of a participant's plan to be provided to the participant.
32E Reasonable and necessary budget - entitlement to flexible funding or stated supports
(1) A participant's reasonable and necessary budget must provide that funding will be provided under the plan to or in relation to the participant in accordance with subsections (2) and (3), so far as they are applicable.
Flexible funding
(2) If the needs assessment report for the plan indicates that the participant needs at least some supports that are NDIS supports but not stated supports for the participant, the reasonable and necessary budget must provide:
(a) that certain funding ( flexible funding ), up to a specified amount (the total funding amount ), will be provided under the plan to or in relation to the participant for those supports; and
(b) that the flexible funding may be spent on any NDIS supports for the participant and only on such supports, subject to any restrictions under subsection 32F(6) that require the funding to be spent on particular supports.
Note 1: For additional rules about flexible funding, see section 32F.
Note 2: The total funding amount for flexible funding is worked out under section 32K.
Note 3: The reasonable and necessary budget may specify requirements relating to the acquisition or provision of supports (see section 32H).
Note 4: A debt may arise if funding is spent on supports that are not NDIS supports or if it is spent other than in accordance with the plan (see subsections 46(1) to (1B) (acquittal of NDIS amounts) and 182(3) (debts due to the Agency)).
Stated supports
(3) If:
(a) the needs assessment report for the plan indicates that the participant needs a particular support or class of supports; and
(b) the support, or each support in the class, is both an NDIS support and a stated support for the participant;
the reasonable and necessary budget must provide, for each such support or class of supports:
(c) that certain funding will be provided under the plan to or in relation to the participant for that support or class of supports; and
(d) that the funding provided for that support or class of supports may be spent:
(i) only on the support, or supports in the class, for which the particular funding is provided; and
(ii) only on supports that are NDIS supports for the participant.
Note 1: For additional rules about stated supports, see section 32G.
Note 2: The reasonable and necessary budget may specify requirements relating to the acquisition or provision of supports (see section 32H).
Note 3: A debt may arise if funding is spent on supports that are not NDIS supports or if it is spent other than in accordance with the plan (see subsections 46(1) to (1B) (acquittal of NDIS amounts) and 182(3) (debts due to the Agency)).
(4) A support is a stated support for a participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be a stated support:
(a) for participants generally; or
(b) for a class of participants that includes the participant.
Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).
32F Reasonable and necessary budget - flexible funding
(1) This section applies if a participant's reasonable and necessary budget provides that flexible funding is to be provided under the plan.
Funding periods for flexible funding
(2) The reasonable and necessary budget must provide:
(a) that the flexible funding will be provided under the plan during specified periods (each of which is a funding period ); and
(b) when each funding period for that funding starts and ends; and
(c) the proportion of the total funding amount for flexible funding that will be provided under the plan during each of those funding periods.
(3) For the purposes of paragraph (2)(b):
(a) a funding period must be no more than 12 months; and
(b) the duration of a particular funding period may be different from the duration of any other funding period; and
(c) the first funding period for flexible funding must start on the day the plan comes into effect; and
(d) each other funding period for flexible funding must start immediately after the end of the immediately preceding funding period for that funding.
(4) For the purposes of paragraph (2)(c), the proportion for a particular funding period may be nil.
Rolling over unspent funding
(5) The reasonable and necessary budget must provide that the amount of flexible funding that will be provided during a funding period will be increased above the proportion provided for the funding period under paragraph (2)(c) by an amount equal to the amount by which:
(a) the amount of flexible funding that could have been provided under the plan during the immediately preceding funding period; exceeds
(b) the amount of flexible funding that was actually provided.
Restriction on how flexible funding is spent
(6) If the CEO is satisfied that a circumstance mentioned in subsection (7) exists, the reasonable and necessary budget may provide that the provision of flexible funding under the plan is subject to the restriction that one or more specified proportions of the flexible funding provided during specified funding periods may be spent only on specified NDIS supports for the participant.
(7) For the purposes of subsection (6), the circumstances are as follows:
(a) the participant would be likely to suffer physical, mental or financial harm if the flexible funding were not subject to the restriction;
(b) section 46 (acquittal of NDIS amounts) has not been complied with in relation to any of the participant's plans;
(c) a circumstance prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: National Disability Insurance Scheme rules may be made in relation to this section under section 32J.
32G Reasonable and necessary budget - stated supports
(1) This section applies if a participant's reasonable and necessary budget provides that funding will be provided under the plan for a particular stated support or a particular class of stated supports.
Specifying either a total funding amount or requirements for provision or acquisition of stated supports
(2) The reasonable and necessary budget must, for each stated support or class of stated supports, do at least one of the following:
(a) provide that funding will only be provided under the plan for the support or class of supports up to an amount (the total funding amount ) specified for the purposes of this paragraph for the support or class of supports;
(b) specify requirements under subsection 32H(1) in relation to the acquisition or provision of the support or class of supports.
Note: The total funding amount for a stated support or class of stated supports is worked out under section 32K.
Funding periods for stated supports
(3) Subject to subsection (4), the reasonable and necessary budget must, for each stated support or class of stated supports for which a total funding amount is specified, provide:
(a) that funding will be provided under the plan for the support or class of supports during periods (each of which is a funding period ) specified for the support or class of supports; and
(b) when each funding period for the support or class of supports starts and ends; and
(c) the proportion of the total funding amount for the support or class of supports that will be provided under the plan during each funding period for the support or class of supports.
(4) The National Disability Insurance Scheme rules may provide that subsection (3) does not apply in relation to supports prescribed for the purposes of this subsection.
(5) For the purposes of paragraph (3)(b):
(a) a funding period must be no more than 12 months; and
(b) the duration of a particular funding period may be different from the duration of any other funding period; and
(c) the first funding period for a stated support or class of stated supports must start on the day the plan comes into effect; and
(d) each other funding period for a stated support or class of stated supports must start immediately after the end of the immediately preceding funding period for that support or class of supports.
Rolling over unspent funding
(6) If the reasonable and necessary budget provides as mentioned in subsection (3), it must also provide that the amount of funding that will be provided during a funding period for a stated support or class of stated supports will be increased above the proportion provided for the funding period under paragraph (3)(c) by an amount equal to the amount by which:
(a) the amount of funding that could have been provided for that stated support or class of stated supports under the plan during the immediately preceding funding period; exceeds
(b) the amount of funding that was actually provided for that stated support or class of stated supports.
Note: National Disability Insurance Scheme rules may be made in relation to this section under section 32J.
32H Reasonable and necessary budget - requirements relating to acquisition or provision of supports
(1) A participant's reasonable and necessary budget may provide that flexible funding, or funding for stated supports, will be provided under the plan for particular supports specified in the plan only if specified requirements are complied with in relation to the acquisition or provision of the supports.
(2) Requirements specified under subsection (1) may include the following:
(a) a requirement that the supports be provided by a specified person or persons in a specified class;
(b) a requirement that a specified process be undertaken before the supports are acquired or provided;
(c) a requirement that specified conditions be satisfied in relation to the participant before the supports are acquired or provided;
(d) a requirement to comply with any requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: National Disability Insurance Scheme rules may be made in relation to this section under section 32J.
32J Reasonable and necessary budget - National Disability Insurance Scheme rules
The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of section 32F, 32G or 32H, including but not limited to:
(a) requirements with which the CEO must comply; and
(b) methods or criteria that the CEO is to apply; and
(c) matters that the CEO may, must or must not take into account;
in making a decision under any of those sections.
32K Reasonable and necessary budget - working out total funding amounts
(1) The following amounts specified in the reasonable and necessary budget must be worked out by applying the information in the needs assessment report for the plan, in so far as the report relates to the participant's need for NDIS supports arising from impairments in relation to which the participant meets the disability requirements or the early intervention requirements, in accordance with the applicable method specified in the National Disability Insurance Scheme rules for the purposes of this subsection:
(a) the total funding amount for flexible funding (see paragraph 32E(2)(a));
(b) the total funding amount for a stated support or class of stated supports (see paragraph 32G(2)(a)).
Note: In making National Disability Insurance Scheme rules for the purposes of this subsection, the Minister must have regard to the objects and principles of this Act (see in particular the principles set out in subsections 4(5), (9A) and (11)) and the financial sustainability of the National Disability Insurance Scheme: see subsection 209(3).
(3A) The Minister must also be satisfied that those rules adequately take account of the variety of factors that may affect a participant's need for NDIS supports.
Note: Examples of those factors include environmental factors, and a participant's need for NDIS supports arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements being impacted by another impairment in relation to which the participant does not meet either of those requirements.
(4) Without limiting subsection (1), National Disability Insurance Scheme rules made for the purposes of that subsection may relate to how to take into account:
(a) lump sum compensation payments that specifically include an amount for the cost of supports; and
(b) lump sum compensation payments that do not specifically include an amount for the cost of supports; and
(c) periodic compensation payments that the CEO is satisfied include an amount for the cost of supports; and
(d) amounts that a participant or prospective participant did not receive by way of a compensation payment because he or she entered into an agreement to give up his or her right to compensation; and
(e) supports in respect of personal injury that may be funded or provided under a scheme of insurance, or under a Commonwealth, State or Territory law.
(5) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901 or subsection 209(1A) of this Act, National Disability Insurance Scheme rules made for the purposes of subsection (1) of this section may make different provision in relation to:
(a) different classes of participants; and
(b) for the purposes of paragraph (1)(b) of this section - different classes of stated supports.
32L Assessment of participant's need for supports
CEO to arrange assessment of participant's need for supports
(1) The CEO must arrange for an assessment of a participant's disability support needs to be undertaken as soon as practicable after the CEO commences the preparation of a plan for a participant.
What an assessment covers
(2) The assessment must be undertaken using the assessment tool, and in accordance with any other requirements (including requirements for the purpose of assessing whether a participant's disability support needs arise from impairments in relation to which the participant meets the disability requirements or the early intervention requirements), specified in the National Disability Insurance Scheme rules for the purposes of this subsection.
(4) The assessment must:
(a) have regard to any information and reports requested under subsection 36(2) for the purposes of the assessment; and
(b) may have regard to any other information held in the records of the Agency that relates to the person.
Needs assessment reports
(5) A report of the assessment must be prepared and given to the CEO as soon as practicable after the assessment is completed.
(6) The report must:
(a) identify the participant's disability support needs arising from impairments in relation to which the participant meets the disability requirements or the early intervention requirements; and
(b) include any information, and meet any requirements, specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note 1: The time at which the disability requirements or the early intervention requirements need to be met for the purposes of this section is the time the assessment is completed.
Note 2: A participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(6A) The CEO must give the participant a copy of the report as soon as practicable after the CEO receives the report.
Replacement assessments
(7) If:
(a) an assessment (the existing assessment ) has been undertaken under subsection (1) or paragraph (c) of this subsection in connection with a plan; and
(b) in deciding whether or not to approve a statement of participant supports for the plan, the CEO is satisfied that another assessment (the replacement assessment ) of the participant's need for supports should be undertaken;
then:
(c) the CEO must arrange for the replacement assessment to be undertaken; and
(d) subsections (2) to (6) apply in relation to the replacement assessment in the same way as they applied in relation to the existing assessment; and
(e) the replacement assessment is taken to replace the existing assessment; and
(f) the needs assessment report prepared for the replacement assessment is taken to replace the needs assessment report prepared for the existing assessment.
Note: In reviewing a decision to approve a statement of participant supports, a reviewer or the Administrative Appeals Tribunal has all the powers of the CEO in making the original decision and must therefore arrange for a replacement assessment to be undertaken if satisfied as mentioned in paragraph (b) (subject to any applicable National Disability Insurance Scheme rules).
(7A) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of paragraph (7)(b), including by prescribing:
(a) circumstances in which the CEO must or must not decide under that paragraph that another assessment should be undertaken; or
(b) requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in making a decision under that paragraph whether another assessment should be undertaken.
National Disability Insurance Scheme rules
(9) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901 or subsection 209(1A) of this Act, National Disability Insurance Scheme rules made for the purposes of this section may make different provision for different classes of participants.
Note: In making National Disability Insurance Scheme rules for the purposes of this section, the Minister must have regard to the objects and principles of this Act (see in particular the principles set out in subsections 4(5), (9A) and (11)) and the financial sustainability of the National Disability Insurance Scheme: see subsection 209(3).
Subdivision C - Content of old framework plans
32M Application of this Subdivision
This Subdivision applies in relation to a plan for a participant unless Subdivision B applies in relation to the plan.
Note: For when Subdivision B applies in relation to a plan, see section 32C.