Funding for Applied Behaviour Analysis - FRCT and WKZQ v NDIA [Part 1]

Note

The Tribunal handed down decisions in FRCT and NDIA [opens in new window] and WKZQ and NDIA [opens in new window]. These cases concern NDIS funding for Applied Behaviour Analysis (ABA) for Autism Spectrum Disorder (ASD). The two decisions relate to twin boys - the Tribunal decided to issue separate decisions to reflect the difference in the circumstances of each boy, but they are considered jointly in these blog posts. 

Given the size and importance of these decisions, they are covered in two blog posts. The first blog post sets out the facts and the evidence considered by the Tribunal. The second blog post sets out the Tribunal's analysis and consideration of s 34 of the NDIA Act, as well as my analysis of the cases.

Facts

FRCT and WKZQ are twin boys with autism spectrum disorder (ASD). Each became a participant in the NDIS. Each boy's second plan provided for a budget of $23,756.20 for "early childhood intervention supports to work together within the home and community settings", including funding for 6 months of ABA therapy. The plan was affirmed by the NDIA on internal review. The boys' mother applied to the Tribunal for review.

The applicants each sought funding for:

• 20 hours of ABA therapy per week, comprised of 2 hours of 1:1 therapy with a senior therapist, and 12 hours of 1:2 therapy with a junior therapist
• 2 hours per week for social skills group
• 2 hours per month for ABA clinical meetings
• 2 hours per month for ABA supervisor sessions
• 4 hours per week of speech therapy
• an annual full speech assessment and summary report.

In contrast, the NDIA offered funding for:

• 110 hours per year of capacity building supports for early childhood intervention through a 'keyworker model' (discussed below) 
• A 6-month transition away from ABA therapy, in the form of gradually-reducing ABA therapy to be done at home
• 192 hours per year of a support worker "to support the applicant and the family to access the community and to implement therapeutic activities into the applicant's everyday life and routine"

The applicant's evidence

In addition to evidence about the boys' specific circumstances, the Tribunal received expert evidence about early intervention for children diagnosed with ASD. The Tribunal analysed in detail the National Guidelines: Best Practice in Early Childhood Intervention (ECI Guidelines) [opens in new window]. At [46] the Tribunal summarised some of the key points, including:

• Engaging a child in 'natural environments' (such as their home, community, and early childhood settings) promotes their inclusion and opportunities to participate, learn and practice skills.
• Intervention strategies are grounded in research and sound clinical reasoning; and
• Outcomes focus on what parents want for their child and family.

The ECI Guidelines also note that there are bodies of evidence that suggest specific intervention for children with specific needs, such as ASD, lead to improvement in childhood development and skill development, and providing early childhood intervention "does not exclude the provision of specific targeted interventions". 

The Tribunal also received academic research articles about early intervention and behavioural therapy for the treatment of ASD. At [48]-[54] the Tribunal summarised some of that research:

• In 2007 the American Academy of Pediatrics stated that "The effectiveness of ABA-based intervention in ASD has been well-documented through 5 decades of research."
• In 2011 the Australian Society for Autism Research concluded that "a total of 15-25 hours per week over 2-3 years is generally recommended for autism early intervention in the research literature... with some programs recommending as much as 40 hours per week".
• No two children with autism are the same, which means that interventions will need to be adapted to suit each child's autism characteristics. 
• In 2016 Professors Roberts and Williams prepared a report for the NDIA [opens in new window] which recommended that children diagnosed with autism should receive 20 hours per week of early intervention. 
• In 2019 the NDIA commissioned a supplementary report from Professors Roberts and Williams, which stated that the recommendation for early intervention in autism includes working with children in natural environments to maximise the functional development of skills and provide opportunities to interact with peers and social communication skills. 'In clinic' therapy is not a natural context and therefore would not be the optimal setting for much intervention. 
• The professors also clarified their 2016 report and advised that the recommendation for 20 hours per week of intervention applied to the first 12 months after diagnosis. The amount of intervention after the first 12 months should be determined based on monitoring of outcomes, taking into account methods, settings and intensity of early intervention and the response during the first 12 months.
• In oral evidence, Professor 'D' commented that discrete skills may be most successfully taught in a one-to-one, or small group clinical setting, as long as it is understood that the second step towards the generalisation and utilisation of the skills in everyday life is likely to be necessary.

The NDIA's evidence

The NDIA put forward evidence from an occupational therapist and a speech therapist, who assessed the two boys. They recommended that the boys receive access to "an intensive keyworker therapy block" for the first 6 months. They described the keyworker model as "a method of service delivery in early intervention that provides families access to a range of therapists, but therapy is delivered through one qualified professional, the keyworker". The keyworker in this case was proposed to be a speech pathologist. 

The therapists also recommended that the therapy be conducted in the children's natural environments, namely their home, preschool, childcare and the community. The purpose of the therapy was to support the transition from intensive ABA and speech pathology into their everyday routines and natural environments. ABA would not be part of the recommended keyworker model.

Read Part 2 [opens in new window]