ESDM or ABA? Either may be a reasonable and necessary support: XXWC v NDIA [2020] AATA 923

Key points

In XXWC and NDIA [2020] AATA 923 [opens in new window] the Tribunal considered two different types of early intensive behavioural intervention (EIBI) for autism spectrum disorder (ASD). These are Applied Behaviour Analysis (ABA), which is a field of behaviour intervention that uses the science of learning and behaviour, and the Early Start Denver Model (ESDM), which is a multidisciplinary form of EIBI that adopts some principles from ABA, but which is different to it. The Tribunal found that both ABA and ESDM are supported in the literature and may be a reasonable and necessary support for a child with ASD, depending on the child's circumstances. In the circumstances of XXWC, it found that ESDM was the reasonable and necessary support, because XXWC had benefited from ESDM over the previous year.

Facts

XXWC is a three year old boy who was diagnosed with ASD when he was 18 months old. His first NDIS plan provided for $39,196.62 for the provision of early childhood intervention supports and a further $5,129 for core  supports to assist with undertaking daily living activities. His parents sought review of the decision to seek that early childhood intervention be provided for at least 20 hours per week. 

Decision

By the time the matter reached the Tribunal, the NDIA and XXWC's parents had agreed that the plan should be varied to provide a further 18 hours of EIBI per week. Among other things, the Tribunal was required to determine whether the blended rate proposed by the NDIA should include 'off-client' supervision and training from an ESDM therapist or an ABA practitioner. Another issue was whether the NDIA could be ordered to reimburse the parents for amounts they had spent for their child's therapy in excess of the plan while the plan was under review.

The Tribunal had regard to a significant body of expert evidence, including a report of Professors Margot Prior and Jacqueline Roberts titled "Early Intervention for Children with Autism Spectrum Disorders: Guidelines for Good Practice 2012" [opens in new window]. Their report states, among other things, that the recommended amount of early intervention for children with ASD is between 15 and 25 hours per week, with some recommending up to 40 hours per week. However, no one program will suit every child, and intensity and duration should be based on individual needs.

XXWC's parents also provided a report of Dr Elizabeth Briggs and Ms Margaret-Ann Brennan of the Best Start Clinic, who are XXWC's ESDM therapists. His therapy had the goals of improving his gross and fine motor skills and improving his cognitive skills to allow him to progress with social skill development. The NDIA provided a report of Dr Jose Molina-Toleda of Irabina, an ABA provider, who had assessed but not treated XXWC. 

Both reports recommended that XXWC receive early intensive behaviour intervention (EIBI). But the reports differed on how EIBI should be provided; the Best Start report recommended that he receive ESDM, while the Irabina report recommended that he receive ABA. The Tribunal noted at [36] that "The case is not, however, concerned with which is the better program for, as is clear from the report of Irabina, there is respect among professionals for both programs and both are directed to delivering EIBI". The Irabina report acknowledged that XXWC had benefited greatly from the ESDM program over the previous year.

The Tribunal was required to determine what the reasonable and necessary supports for XXWC were, consistent with s 34 of the NDIS Act [opens in new window]. The Tribunal noted at [104] that although a parent's preference for a type of support may be a relevant consideration, the CEO is required to have regard to a range of issues in determining whether supports are reasonable and necessary. 

The Tribunal noted at [113] that when it had regard to the entirety of the evidence, there was little to choose between ESDM and ABA, because both provided EIBI and both had expert support (and were supported in the literature). 

Ultimately, at [114] the Tribunal determined that ESDM was the reasonable and necessary support for XXWC, because he had already been in an ESDM program for a year and had benefited greatly from it. Both experts agreed that stability and consistency are important in the treatment of ASD. The Tribunal's decision suggests that had XXWC not had therapy previously, it would have found ABA to be the reasonable and necessary support, because it was significantly less expensive than ESDM.

The Tribunal substituted the NDIA's decision for a decision that XXWC receive funding in the amount of $112,723.20 

The Tribunal also considered the issue of whether the parents should be reimbursed the almost $48,000 that they spent on 18 hours of ESDM therapy per week while the plan was under review. The Tribunal found that it did not have jurisdiction to review this, because it was not one of the "reviewable decisions" in s 99 of the NDIS Act [opens in new window]. The Tribunal left it to the parents to discuss reimbursement with the NDIA. 

Commentary

The decision is of interest to ASD therapists, because it sets out a thorough discussion of the evidence in support of ABA and ESDM as forms of intensive therapy for children with ASD. The report of Professors Prior and Roberts continues to be highly relevant and of assistance to the Tribunal, and practitioners involved in making submissions to the NDIA or the Tribunal would be well-advised to be familiar with it. 

Also, the decision provides a degree of validation for ESDM as a form of EIBI. However, it is important to appreciate that each child's circumstances are different, and one type of EIBI might be more appropriate than another. Parents of children with ASD will hopefully take comfort from the fact that parental choice continues to be a relevant, but not decisive, factor for the Tribunal.

Finally, the decision of the Tribunal that it did not have jurisdiction to require the NDIA to reimburse the parents is legally correct and consistent with previous decisions of the Tribunal in that area. However, it is problematic that XXWC's parents had to spend such large amounts of money out of their own pockets in order to ensure that their child continued to get the treatment that the NDIA ultimately agreed he needed. Parliament should consider amending the NDIS Act to make provision for reimbursement in those circumstances. 

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