Funding for Applied Behaviour Analysis - FRCT and WKZQ v NDIA [Part 2]

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 [opens in new window] 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.

The Tribunal's analysis

At [99] the Tribunal noted that there were two alternative models of support for FRCT and WKZQ. The applicants wanted funding for intensive ABA therapy and speech therapy, while the NDIA proposed to fund therapy through a keyworker model at a less intensive and reducing rate over a period of 12 months. This required the Tribunal to consider the requirements of s 34 of the NDIS Act [opens in new window], which concerns whether a support is necessary and reasonable. 

The Tribunal found that both ABA and the NDIA's proposed keyworker model would assist FRCT and WKZQ to pursue the goals, objectives and aspirations in their statements of goals and aspirations and therefore s 34(1)(a) was satisfied. In relation to s 34(1)(b) the Tribunal was satisfied that most of the ABA therapy would support the boys to facilitate their social and economic participation, as did the NDIA's proposed keyworker model. However, the Tribunal found that there was insufficient evidence to explain how the 2 hours of clinical meetings and 2 hours of supervisor sessions per month would assist the boys' social and economic participation. 

The main issue of contention was whether the supports sought by the applicants represented value for money, in that the costs of the support are reasonable relative to the benefits achieved and the cost of alternative support. 

Importantly, at [130] the Tribunal found that ABA and the keyworker model were not comparable models of support for the purposes of s 34(1)(c) of the NDIS Act. The NDIA's proposal to transition FRCT and WKZQ away from ABA therapy over 6 months was not a genuine alternative to the 12 month program of intensive ABA and speech therapy proposed by the applicants. Additionally, the Tribunal was not satisfied that the NDIA's keyworker model would substantially improve the life stage outcomes for the boys, or be likely to reduce the cost of funding of supports for them in the long term. This is for reasons including the fact that research indicates that children with ASD benefit from early intervention behaviour therapy of 20 hours per week for at least one year. 

At [135] the Tribunal found that the evidence showed very clear and compelling reasons why the boys were participating in ABA therapy and speech therapy (in a clinical setting) at the current point in time. These included their challenging behaviour at home, the lack of ABA therapy providers where the boys lived, and their continuing participation in their community. The Tribunal left open the possibility that FRCT and WKZQ may eventually be able to engage in appropriate behaviour in their home and preschool, and possibly be placed in a mainstream school. This would affect the amount of therapy that they would require in future years.

The intensity of the ABA therapy sought by the applicants was supported by evidence of the boys' progress in language and communication skills and social skills and behaviour, as well as the research (referred to in my first blog post on these cases) that showed that children with ASD benefited from early behavioural intervention of 20 hours per week for at least one year. 

The Tribunal was not satisfied that the 2 hours per week of social skills group represented value for money.  The Tribunal was also not satisfied that the ABA clinical meetings and supervisor sessions also represented value for money. Therefore, these items did not meet the requirements of s 34(1)(c) of the NDIS Act.

The Tribunal found that based on all the evidence, the 2 hours of speech therapy per week met the requirement of s 34(1)(c). 

For completeness, the Tribunal considered whether the NDIA's proposed keyworker model represented value for money. The Tribunal identified a number of problems with the model. In particular, the model did not provide for ABA therapy, which was the therapy preferred by the boys' parents. The NDIA's desire to transfer the boys away from ABA therapy in direct contradiction to the parents' wishes was completely inconsistent with the objects and general principles of the NDIS Act, which reinforce the exercise of choice in the planning and delivery of supports, and acknowledge the role of families in this process. The Tribunal also found that the keyworker model was inconsistent with the empirical evidence and the ECI Guidelines, because it did not take into account the preferences of the children's family. Finally, the keyworker model did not address the logistical problem of a lack of ABA therapists and speech therapists in the area that the family lived. The proposal to decrease ABA therapy is counterintuitive to the evidence that showed the program was having a beneficial effect on the boys' skills development and their behaviour.

The Tribunal found that the remainder of the requirements in s 34 of the NDIS Act were met in relation to ABA therapy.

Analysis

This is an important decision for ABA providers, and for parents of children with autism who are interested in ABA. The research that was put before the Tribunal provides a solid foundation for establishing the utility and efficacy of ABA, and hopefully future Tribunal cases rely upon this decision in considering the benefits of ABA. However, it must be stressed that autism affects people in different ways, and participants must have evidence that relates to their particular circumstances.

The Tribunal's emphasis on choice in the planning and delivery of supports is also important for NDIS participants and their supporters. It is good to see the Tribunal reaffirming participant's self-determination in this way.

For ABA practitioners, it is important to note the Tribunal's lack of satisfaction with the evidence in relation to social skills groups and clinic meetings. It may be useful for more empirical research to be done to justify the clinical benefits of these activities.

Additionally, ABA practitioners may need to do more to make clear that ABA services can be provided in home as well as in a clinical setting. The NDIA's support for the keyworker model was based in part on research that suggests that therapy is more effective in natural settings, but ABA can of course take place in natural settings.