Providers beware! The hazards of self-assessment

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It’s a potentially catastrophic mistake to treat the self-assessment elements of NDIS registration as a tick-and-flick bureaucratic chore. The self-assessment questionnaire that forms part of the application process is daunting and requires some homework and preparation, as you would expect from a Quality standard as rigorous as the NDIS has implemented.

The self-assessment route is a shorter path for both the applicant and the Registrar and it gives the service provider quick access to the marketplace, while helping the NDIS to build capacity.

But, for providers, some very deep pitfalls await them if they mislead or misrepresent themselves in the self-assessment stage.

The NDIS Commission’s powers of investigation and penalties are outlined in its Compliance and Enforcement Policy, published in June 2018.

For those who fail to live up to their self-assessed suitability for registration, there are a range of civil penalty provisions, from $1,260 to over $1 million.

Though these provisions are civil, rather than criminal, they are legally enforceable under the Commission’s regulatory powers, as set out in the National Disability Insurance Scheme Act 2013

The penalties are expressed in terms of units, presumably to keep step with inflation. Each unit currently equals $210. So, for instance, failing to comply with the conditions of their NDIS registration will land a provider the maximum penalty of 250 units ($52,500), if they’re a sole trader, or 1250 units ($262,500) for a corporation.

The full list of penalties is included in the policy document, however for example,

Requirements

Maximum Penalty (individual)

Maximum Penalty (corporation)

Registered NDIS providers must comply with conditions of registration 250 units ($52,500) 1250 units ($262,500)
Failure to comply with NDIS Code of Conduct 250 units ($52,500) 1250 units ($262,500)
Requirement to be a registered NDIS provider 250 units ($52,500) 1250 units ($262,500)
False or misleading information or documents in application to become a registered provider 60 units ($12,600) 300 units ($63,000)
Record keeping by registered NDIS providers (because it is a condition of registration) 250 units ($52,500) 1250 units ($262,500)
Record keeping by former registered NDIS providers 60 units ($12,600) 300 units ($63,000)
Victimisation of a person who discloses information (whistleblower) prohibited 500 units ($105,000) 2500 units ($525,000)
Failure to comply with a compliance notice 60 units ($12,600) 300 units ($63,000)
A person engages in conduct that breaches a banning order made against that person 1000 units ($210,000) 5000 units ($1,050,000)

The NDIS statutory legislation gives the commission wide powers to monitor and investigate providers for non-compliance with the terms of their registration – above and beyond periodic auditing.

It can undertake information-gathering on a provider’s activities, regardless of any complaint being received or suspicion of transgression. The commission may monitor the business and its employees, carry out site visits, make inquiries in the marketplace and carry out other investigations. 

When there are grounds for believing that non-compliance has taken place, the NDIS has an escalated range of actions it can take against the provider.

 
  How the NDIS Commission escalates its response, according to seriousness of non-compliance issues. (Credit: NDIS Quality and Safeguards Commission)

How the NDIS Commission escalates its response, according to seriousness of non-compliance issues. (Credit: NDIS Quality and Safeguards Commission)

 

For minor matters, where no potential or actual harm to a participant exists and the provider has acted appropriately to rectify the issue, the NDIS is likely to take steps to ‘Educate and persuade’. This approach entails helping the provider gain a better understanding of their responsibilities and obligations as an NDIS registrant.

At the other end of the scale, the most severe non-compliances can be met with legal injunctions to force or prevent a provider from taking a course of action, civil penalties, suspension or revocation of registration, and outright bans to stop a provider operating in the NDIS marketplace.    

Here at Centro we feel your pain and we want you to be successful, minimise the stress of registering and avoid potential non-compliance. The Centro CORE web app has a step-by-step guide to the NDIS registration process, with ready-made policy documents to support your application. There are over 30 policies, forms, templates and registers available now and we will continue to grow the list to support you through the initial registration and ongoing verification. And we promise to keep it up-to-date as the Commission changes and evolve.  Don’t get caught with unsupported policies or pay thousands to have them rewritten.

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