'Most appropriately funded or provided through the NDIS' - the difference between health provision and disability provision

Key points

• To be a reasonable and necessary support, a support must be most appropriately provided via the NDIS. 
• Whether a support is a health support that should be funded through the health system, or a disability support that should be funded through the NDIS, is a difficult distinction to make. It depends on the facts.
• The fact that a support is not available through the health system, or the support is limited, does not mean that it will be available through the NDIS.
• Participants seeking NDIS funding for supports that might look like health supports should emphasise how the support will enable the participant to take part in activities in the community.

Introduction

Section 34(f) of the NDIS Act [opens in new window] states that in order for a support to be a 'reasonable and necessary support' for the purposes of the NDIS, the NDIA must be satisfied that the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery. What this means is if a support is more appropriately provided through e.g. the health system, or through the education system, then it is not a reasonable support for the purposes of the NDIS.

I think this is a problem in how the NDIS operates. There is no obligation on the NDIA to provide anything that is not a reasonable support under the NDIS. Even though a person's statement of support might mention 'mainstream' supports, e.g. extra tutoring at school or doctor's visits, there is no obligation on the NDIA to provide those, and participants and their supporters may get dragged into fights about provision with different agencies at the same time. This is a problem given that the NDIS is meant to represent a holistic approach to disability provision; it's hard to do that when the NDIA is only responsible for some, but not all, pieces of the puzzle.

This blog post and the next will deal with the question of what is and is not the NDIA's problem when it comes to supports. This post will look at the question in relation to healthcare. The next post will look at it in relation to education.

The cases

Fear v NDIA [2015] AATA 706 [opens in new window]

Mr Fear suffered a catastrophic brain injury when he was 17 years old. His parents sought funding from the NDIA for, among other things, a pulse oximeter, a bedside oral suctioning machine and a portable oral suctioning machine. The NDIA stated that those things were not most appropriately funded via the NDIS - they were more appropriately funded under the general health system. 

At [40] the Tribunal quoted the Productivity Commission's 2011 report that discussed the creation of the NDIS:

Access to generic services, such as health and housing, can affect demand for NDIS-funded services, and vice-versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ’silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services.

 The Tribunal also referred to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 [opens in new window]. Schedule 1 to the Rules sets out principles relating to what supports the NDIA will and will not be responsible for. In relation to health care those guidelines state:

7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.

7.5 The NDIS will not be responsible for:

(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or

(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or

(c) funding time-limited, goal-oriented services and therapies:

(i) where the predominant purpose is treatment directly related to the person’s health status; or

(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or

(d) palliative care.

The Tribunal stated at [62] that in determining whether a support is more appropriately funded by the NDIS, the task is to determine what the primary purpose of the support is. At [65] it found that a pulse oximeter was closely related to Mr Fear's health needs: "Put very bluntly, it is helping to keep Mr Fear alive. The fact that it enables him to remain living at home does not change that, in our view, its principal purpose is to manage his health." At [73] the Tribunal reached the same conclusion about the portable and bedside suction machines.

The Tribunal also made clear that the fact that the health system might not have funding available for the support does not make it the NDIA's problem. At [75] it quoted the Tribunal's decision in Young and NDIA [2014] AATA 401 [opens in new window]:

Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.

Medcalf and NDIA [2018] AATA 3893 [opens in new window]

Mr Medcalf has a variety of complex disabilities, and requires around the clock care. One of the things he needs is suctioning with a pump every 10 to 15 minutes to avoid fluid entering into his lungs. He has a suction pump in his bedroom, but the health system will only fund one pump. Mr Medcalf wanted a second portable suction pump, which would allow him to be out of his bedroom and attend social and community activities away from home. 

He also has a heavy duty nebuliser, which he uses at least five times a day and more often when he is unwell. The nebuliser is on loan from the hospital. At [57] the Tribunal noted that the hospital had asked for it to be returned. 

The Tribunal referred to the decision in Fear discussed above, and also referred to the Support Rules. At [50] the Tribunal stated "The distinction between a health condition and a disability or functional impairment is by no means clear cut." At [51] it said 

The NDIA is to fund supports to people with disabilities to enable them to have a greater independence, to participate and contribute in the community and to have a social life. To be independent and to participate in social life necessitates a basic level of well-being and health and thus there is an overlap of purposes of good health and social participation.

The Tribunal noted at [52] that the purpose of the suction pump was to enable Mr Medcalf to move beyond his bedroom and to participate in social and family life and to maximise his independence. It found that the portable suction pump was most appropriately funded by the NDIS.

In contrast the Tribunal found at [57] that the heavy duty nebuliser was for the purpose of maintaining Mr Medcalf's basic level of health and preventing illness. It did not further his social participation over and above ensuring his basic health. The fact that the hospital needed its nebuliser back (and difficulties that Mr Medcalf would have in getting a new one) did not make it the NDIA's responsibility.

Comment

The difference between a health support and a disability support will depend on the facts. It will sometimes not be an easy distinction to make. It is disappointing that the NDIA (and the Tribunal) have repeatedly emphasised that the fact that the health system might not actually be in a position to provide a support does not make it the NDIA's problem. This type of thinking goes against the holistic approach to disability support that the NDIS was meant to introduce. 

The decision in Medcalf suggests that an applicant seeking NDIA funding for a support that might be seen as a medical support should highlight how the support is necessary for the person to participate in the community. That would be in line with the purpose of the NDIS, and would make funding more likely.