Disability (National Disability Insurance Scheme Transition) Amendment Bill 2019 (Vic)
Please be advised that the Disability (National Disability Insurance Scheme Transition) Amendment Bill 2019 (Vic) (the Bill) passed the Victorian Parliament on 18 June 2019 and received Royal Assent on 25 June 2019.
Relevant parts of the Bill which will amend the Disability Act 2006 (Vic) (the Act) (as discussed below), are due to commence on 1 July 2020 (unless proclaimed earlier). The Bill will also make consequential amendments to a number of other Acts.
By way of overview, the purpose of the Bill is to amend the Act to reflect the changes brought about by the commencement of the full National Disability Insurance Scheme (NDIS).
The Bill will amend the Act to provide a pathway for disability support providers who will transition to registration by the NDIS Quality and Safeguards Commission (Commission) to no longer be regulated under the Act. As most Victorian disability support providers will fully transition to the NDIS from 1 July 2019 to become registered NDIS providers, it is thought that maintaining Victorian registration under the Act would place an additional regulatory burden for providers.
Most relevantly, the Bill will provide a new framework for the authorisation of restrictive practices in NDIS services. These, and other key changes introduced by the Bill are discussed below.
Use of restrictive practices
The Bill will amend the Act to provide a mechanism by which NDIS participants’ rights are protected in relation to the use of restrictive practices and compulsory treatment.
To reflect the terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS, the Bill will insert a definition of restrictive practice in the Act to replace the term restrictive intervention (which is currently contained in the Act). A restrictive practice is defined as any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability or of an NDIS participant.
Registered NDIS providers should be aware that the Bill will insert a new part in the Act (part 6A) which registered NDIS providers will be required to comply with as a condition of their registration under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) before using regulated restrictive practices (as defined in the NDIS (Restrictive Practices and Behaviour Support) Rules (Cth)) on NDIS participants.
More specifically, the Bill will insert section 132ZI in the Act which requires a registered NDIS provider that intends to use a restrictive practice or compulsory treatment, to appoint one or more Authorised Program Officers. A registered NDIS provider who proposes to appoint an Authorised Program Officer is required by the new section 132ZJ to apply to the Senior Practitioner (who leads the Commission’s behaviour support function) for approval of the proposed appointment. The Senior Practitioner will then approve the appointment of one or more Authorised Program Officers subject to any conditions that the Senior Practitioner considers appropriate.
In addition, registered NDIS providers should be aware that the Bill will insert a new part 6B in the Act which sets out the authorisation process for the use of regulated restrictive practices by registered NDIS providers. These new obligations form part of the authorisation process which registered NDIS providers will be required to comply with as a condition of registration under the NDIS Act before using regulated restrictive practices on NDIS participants who are not subject to a supervised treatment order, or who are subject to a supervised treatment order obtained by a disability service provider.
The Bill will insert section 132ZQ in part 6B of the Act which provides that a registered NDIS provider must not use regulated restrictive practices on an NDIS participant unless:
- an authorisation under section 132ZR(1) for use of the regulated restrictive practice is in force and:
- if the regulated restrictive practice is in the form of seclusion, physical restraint or mechanical restraint, the use of that form has been approved by the Senior Practitioner; and
- if the regulated restrictive practice is in the form of a restrictive practice that requires the Senior Practitioner’s approval under section 132ZV, the use of that form has been approved by the Senior Practitioner; and
- if the use of the regulated restrictive practice on a specified person or class of persons requires the Senior Practitioner’s approval under section 132ZV, the use of the regulated restrictive practice in that circumstance has been approved by the Senior Practitioner; and
- the matters referred to in section 132ZR(1)(a), (b), (d) and (f) are satisfied; or
- an authorisation under section 132ZX(2) of the Act is in force.
It is important to note that division 7 of part 8 of the Act will set out the requirements for use of restrictive practices by registered NDIS providers on persons subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider. In addition, Division 6 of part 8 of the Act will set out protective provisions with which disability service providers must comply with to use restrictive practices on persons, including NDIS participants, subject to supervised treatment orders obtained by an Authorised Program Officer for either a disability service provider or a registered NDIS provider.
At present under section 133 of the Act, a disability service provider is not permitted to use a restrictive intervention on a person to whom part 7 of the Act applies (being a person with a disability other than a person for whom a treatment plan is in force) unless there is in force an approval under section 135 of the Act. The Bill will amend the Act to provide that part 7 of the Act will apply to persons (other than persons for whom a treatment plan is in force or is required to be prepared) who receive disability services; or are children placed with an out of home care service under the Children,Youth and Families Act 2005 (Vic) and:
- are NDIS participants who do not have an NDIS behaviour support plan; or
- have a disability and whom the Secretary has declared, by notice provided to the out of home care service with whom the children are placed, to be persons to whom Part 7 applies.
Importantly, a disability service provider who is also a registered NDIS provider will not be required to comply with part 7 of the Act in relation to a person with a disability other than a person for whom a treatment plan is in force, if the person is also an NDIS participant and the disability service provider has already complied with new Part 6B in relation to that person. This will ensure that disability service providers delivering both State funded services under the Act and services under the NDIS to an NDIS participant are not subject to two regulatory regimes, and persons who receive both types of services are not subject to two behaviour support plans.
Information systems and disclosure, use and transfer of information
At present, section 39 of the Act provides for a secrecy provision whereby a disability service provider and any person who is or has been employed or engaged by a disability service provider is prohibited from disclosing to any person any information relating to the provision of disability services to any person that is gained by or given to that person in his or her official capacity and that identifies, or is likely to lead to the identification of, the person to whom the information relates.
The Bill will amend section 39 of the Act to provide that this secrecy provision will also apply to former disability service providers and their staff, and to any person who has provided services under the Act. It is important to note however that the Bill will insert a new section 39(3A) in the Act which allows a person or body required to comply with the secrecy provision under section 39 to disclose information about disability services or regulated disability services to the specified Commonwealth government departments to assist with the transition of persons from service provision under the Act to service provision under the Commonwealth Continuity of Supports Programme.
Assisting community visitors
The Bill will also insert section 130A in the Act which provides that a disability service provider, registered NDIS provider or any member of their staff or management must give reasonable assistance required to a community visitor when a community visitor is exercising powers or functions under the Act. Failure to comply with section 130A is an offence punishable by 60 penalty units (currently $9671.40).
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For further information please contact the Law Compliance team:
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