NDIS Compliance Uncovered with Gemma McGrath

For a deeper understanding of these topics, consider attending NDIS Reforms, Compliance and Governance Concerns in a Changing Landscape, where Gemma McGrath shares her expertise.

What are the NDIS Commission’s current priorities for regulating providers and workers, and how do these priorities impact compliance obligations?

The Commission has indicated that one of its priorities for the current 2024/25 year is to reduce and eliminate restrictive practices through monitoring the quality and compliance of behaviour support plan development and implementation. It has also stated its intent to increase its use regulatory levers to improve behaviour support services and respond to the use of prohibited practices. A performance measure for the Commission is an increase in the use of statutory enforcement tools for non compliance and it appears we will be seeing a shift away from the Commission’s previous educative approach to greater use of its statutory tools to enforce compliance.

What enforcement tools does the NDIS Commission use to address noncompliance, and can you provide examples of how these tools have been applied?

Despite being available for use by the Commission for many years, we have only recently seen the civil penalty provisions being enforced. There are now 3 reported decisions in which the Commission has referred matters to the Federal Court for civil penalties to be awarded. In each case significant financial penalties have been awarded against providers.  I think it is likely that along with the other statutory tools available to it (such as enforceable undertakings, injunctions and infringement notices etc), we will see an increase in civil penalties being sought to be enforced against providers.

How should providers respond to a complaint or proposed regulatory action to ensure the best possible outcome?

If a provider or a worker is the subject of proposed regulatory action by the Commission, they will be given the opportunity to tell the Commission why such action should not be taken or why something lesser than what is proposed may be more appropriate. We call this the ‘show cause’ process.   In order to provide the best response possible, the first step is to read the notice carefully to make sure that you fully understand the concerns that have been raised and importantly – the deadline for your response.  Depending upon the severity of the proposed action, you may wish to seek legal advice and obtain legal assistance in preparing the response.

The primary steps to take when preparing a response are:

•    Gather evidence to support your response and which addresses the concerns raised
•    Implement any changes which may be necessary so you can refer to these changes in your response
•    Communicate to stakeholders (staff, participants and their family members) – provide reassurance that you are taking the necessary steps to address the concerns and maintain the quality of your service
•    Engage with the Commission by demonstrating a willingness to improve and providing information when requested. It has been demonstrated that a proactive approach when preparing a response can mitigate any regulatory consequences.

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