Since introducing the National Disability Insurance Scheme (NDIS), the aged care industry, especially Residential Aged Care (RAC) providers, have blindly navigated their way through the overlapping regulations of the Aged Care Act 1997 (Cth) (Aged Care Act) and the National Disability Insurance Scheme Act 2013 (NDIS Act).
In relation to the use of restrictive practices, there are significant differences between the behaviour support requirements in aged care and those in the NDIS in supporting residents who have become an NDIS participant.
As a RAC provider, if you are supporting residents who have become an NDIS participant, you are required to comply with the NDIS Code of Conduct, which includes reducing and where possible, eliminating the use of restrictive practices. The NDIS Code of Conduct defines a restrictive practice as:
‘any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability.’
NDIS providers have a responsibility to reduce and eliminate the use of restrictive practices used to manage the behaviours of NDIS participants within their residential aged care facility. The NDIS (Restrictive Practices and Behaviour Support) Rules describe regulated restrictive practices as involving seclusion, chemical, mechanical, physical or environmental restraint.
On 1 December 2020, RAC providers supporting residents who have become an NDIS participant automatically became registered as an NDIS provider with the NDIS Quality and Safeguards Commission (NDIS Commission). From 1 December 2020, transition arrangements were implemented to support RAC providers’ move to regulation by the NDIS Commission, which included transitional arrangement in relation to restrictive practices (Positive Behavioural Support).
The transitional arrangements were implemented to facilitate an orderly process for the NDIS to add funding for behaviour support to NDIS participants plans where required, for the development of positive behaviour support plans for participants, and to obtain state and territory authorisation for the use of regulated restrictive practices.
As an NDIS registered provider and under the transitional arangements, RAC providers were required to:
- by 1 January 2021, notify the NDIS Commission regarding the use of a regulated restrictive practice for an NDIS participant (this does not replace the requirement of providers to report the use of an unauthorised restrictive practice as a reportable incident).
- where no positive behaviour support plan exists for the NDIS participant:
- by 1 March 2021, take all reasonable steps to obtain an interim behaviour support plan, and obtain authorisation for the use of the regulated restrictive practice from state and territory bodies.
- by 1 June 2021, take all reasonable steps to obtain a comprehensive behaviour support plan and obtain authorisation for the use of the regulated restrictive practice from state and territory bodies.
Comprehensive positive behaviour support plans for NDIS participants who need one will need to be in place by 1 December 2021.
Outside of the transitional period and as a condition of registration, RAC providers under the NDIS (Restrictive Practices and Behaviour Support) Rules are required to take all reasonable steps to facilitate the development of:
- an interim plan within 1 month after the use of the regulated restrictive practice
- a comprehensive plan within 6 months after the use of the regulated restrictive practice
Any unauthorised use of a regulated restrictive practice by a RAC facility (however described, by the state/territory) and not in accordance with a behaviour support plan is an unauthorised restrictive practice and needs to be reported to the NDIS Commission as a reportable incident within 5 business days.
For further details or to schedule a meeting to discuss your requirements, please contact Britt O’Keefe on either (02) 8610 1950 or firstname.lastname@example.org.
NDIS and Disability Specialist