Legal Insights

When aged care meets the NDIS – a compliance roadmap for approved providers of aged care

By Angela Wood, Alexandra Adams & Joanne Chenn

• 08 April 2020 • 6 min read

Lawyer Joanne Chenn lays out a compliance roadmap for providers of residential aged care services to navigate the complexities of the Aged Care Act 1997 (Cth) and the National Disability Insurance Scheme Act 2013 (Cth).

In brief

  • Overlapping regulations under the Aged Care Act 1997 (Cth) (Aged Care Act) and the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) can create complexity for providers of residential aged care services.
  • Providers should be aware of the compliance requirements when providing care to residents who are receiving subsidies under both the Aged Care Act and the NDIS Act funding, and whether this means they need to obtain registration as an NDIS provider by 30 June 2020 (being the expiration of the exemption to be a registered NDIS provider for approved providers).
  • Failure by registered or approved providers to comply with conditions of registration or approval can result in a loss of funding, sanctions or enforcement action by the NDIS Commission or the Aged Care Quality and Safety Commission.
  • It is important to consider the types of services you are providing as well as where your funding is being sourced from to determine which set of compliance requirements you must comply with.

Background

The Aged Care Act and the NDIS Act are two significant legislative regimes in Australia which govern funding for the delivery of care and services to elderly Australians and people with a disability, respectively. While both focus on delivering consumer centred care and support to care recipients, each regime sets out a different set of compliance requirements with which providers must comply.

It is not uncommon for an approved provider of residential aged care to have residents who are also NDIS participants. This can create a complex nexus of requirements with which the approved provider must comply under the two separate regimes.

What is the difference between being a registered provider and an approved provider?

An entity must be an approved provider under the Aged Care Act to provide government subsidised aged care services. This means that in order to maintain funding, the Aged Care Quality and Safety Commission will assess and monitor the provider’s performance against the Aged Care Quality Standards under the Quality of Care Principles 2014.

A registered NDIS provider is a type of NDIS provider who has obtained registration under the NDIS Act. An NDIS provider must be registered to provide supports or services where the provider is providing supports under a participant’s plan managed by the NDIS Agency.

Dual compliance for approved providers of residential aged care

Approved providers of residential aged care who have aged care recipients who also receive NDIS funding, may need to balance and comply with obligations under both regimes. The compliance requirements under the NDIS Act generally only apply where the provider is specifically being funded to provide and is providing NDIS supports and services to an NDIS participant.

The nexus between NDIS and the Aged Care Act regulation can become difficult where an Aged Care Act care recipient also receives NDIS funding. We have set out below some common scenarios for providers who are approved providers of aged care and registered NDIS providers.

ScenarioCompliance requirements
1.Providing ordinary residential aged care services to an NDIS participant.


Aged Care Act requirements

If an approved provider provides residential aged care services to an NDIS participant and does not receive direct NDIS funding for doing so, it is not considered to be providing NDIS supports or services. Funding is provided via an intergovernmental agreement between the Department of Health and the Department of Social Services
2.Providing residential aged care to an NDIS participant and receiving direct funding from the NDIS for the provision of NDIS supports or services to the NDIS participant by the provider.

Registration is required

Aged Care Act requirements and NDIS requirements
3.Providing residential aged care to an NDIS participant who receives funding from the NDIS directly to the NDIS participant who elects to procure supports or services from the approved provider.

Registration is required

Aged Care Act requirements and NDIS requirements

Some key NDIS compliance requirements

A registered NDIS provider must comply with a set of Rules made under the NDIS Act. Below are some of the key requirements that an approved provider must comply with if providing NDIS supports or services.

Code of Conduct Rules
Apply to all NDIS providers (not just registered NDIS providers) and acts as a set of guidelines for appropriate behaviour and participant rights.

Practice Standard Rules

Require that an NDIS provider must be assessed and obtain either verification or certification before they are able to provide each different class of support.

Worker Screening Rules

Are a condition of registration as an NDIS provider. The Rules set out the requirements for workers who engage in a risk assessed role (a person providing support or services to a person) who must be cleared to work with people with a disability.

Record keeping requirements

It is a condition of registration that NDIS providers retain certain records for compliance with worker screening, complaints management and incident reporting requirements for a period of seven years from the date the record was made (unless required otherwise by other State, Territory or Commonwealth laws).

Complaints Management and Resolution Rules

Require that registered NDIS providers implement and maintain a complaints management and resolution system that is appropriate for the provider and the services it provides, acknowledges and facilities the role of advocates in the process and otherwise complies with the Complaints Rules under the NDIS Act. Registered NDIS providers must also ensure that the complaints management system provides for the collection of statistical and other information relating to the complaints made to help identify and address systemic issues raised and for reporting information relating to complaints to the NDIS Commissioner if required.

Incident Management and Reportable Incidents Rules

Require that registered NDIS providers have an incident management system that reports on incidents that occur specifically in connection with the provision of NDIS supports or services.

Reportable incidents

Including (but not limited to) the death, serious injury or abuse of, or sexual misconduct or use of an unauthorised restrictive practice in relation to, a person with a disability must be reported to the NDIS Commissioner, either within 24 hours or (if it relates to the use of a restrictive practice) within five business days.

Restrictive Practices and Behaviour Support Rules

Require that registered NDIS providers ensure regulated restrictive practices in relation to an NDIS participant are authorised by a behaviour support plan. The Rules also require that providers must ensure that these practices are authorised by any applicable State or Territory authorisation process and that evidence of such authorisation can be provided to the NDIS Commissioner. There are also specific reporting and record keeping practices that relate to the provision of regulated restrictive practices to NDIS participants.

By Angela Wood, Alexandra Adams & Joanne Chenn

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