The Tribunal’s Groundbreaking Verdict on NDIS Responsibilities For Managing Health Conditions

NDIS & Insulin: Who Cares?

Last month, the Administrative Appeals Tribunal (AAT) set aside a decision by the Agency not to fund a registered nurse to administer insulin to an NDIS Participant three times a day. Why does this matter? Who cares, other than the people involved and a few others in the same situation?

The case might appear to be of limited general interest, but the ruling sets an important precedent on the NDIS’s responsibilities when a Participant’s disability prevents them managing their own health. So, if you are a provider supporting Participants who live with chronic health conditions, it’s time to find your reading glasses and get your head around some of the detail.

KM*, is a 58-year-old NDIS Participant who has an intellectual disability and Type 1 diabetes, alongside being blind, hearing impaired and non-verbal. Since 2009, Nurses on Wheels have visited her multiple times a day to monitor her blood sugar levels and administer insulin. Early this year, KM’s representatives were informed that NSW government funding for this support would cease, due to the rollout of the NDIS.  The absence of this support presented serious risks to KM. If not well monitored, her blood glucose levels can range from dangerously low to extremely high. Prior to Nurses on Wheel’s support, there were occasions when she was administered the wrong insulin dosage and was hospitalized. Therefore, KM’s representatives requested that this support to be provided in her NDIS Plan.

The Agency rejected the application for the ongoing provision of Nurses on Wheels support. They argued that a) the NDIS was not the most appropriate funding body and b) the support did not represent value for money.

 

Most Appropriate Funding Body

The overarching reasonable and necessary criterion, as listed in Section 34 of the NDIS Act, states that a support must be “most appropriately funded or provided through the National Disability Insurance Scheme.” In KM's case, the NDIA argued that Health should be footing this bill. As we discussed last week, the NDIS and Health intersection is so convoluted that by comparison, the rest of the Scheme looks kind of simple. Luckily, this ruling gave us some clarity on at least one piece of this puzzle.

The Agency argued that the monitoring of blood sugar and administration of insulin constituted the treatment of a health condition. As per the Council of Australian Governments (COAG) agreements, Health is responsible for treating medical conditions. However, the NDIS is responsible for maintenance supports that arise as a result of a Participant's impairment.  Consequently, the Tribunal determined the test should be whether the support was required as a result of the Participant’s health condition or her impairment. KM’s specialist testified that if not for her disabilities, she would be able to self-administer insulin. Therefore, the Tribunal found that the support was needed as a result of her disability and, as such, most appropriately funded by the NDIS.

This ruling is a vital one for all Participants who find their supports caught in the ongoing battle between Health and NDIS. Encourage them to ask themselves: would I need this support if it was not for my disability? Each circumstance is different. But if the answer to this question is no, then it is very possible that NDIS is responsible for covering that cost.

 

Value for Money

The NDIA also argued that the support did not represent value for money. Section 34 states that supports must represent “value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support.”

The NDIA felt that the option of an insulin pump, monitored by support workers, should be explored. But KM’s specialist testified that an insulin pump would not be appropriate in these circumstances. He also thoroughly rejected the idea that support workers should be responsible for administrating insulin. The Tribunal accepted his expertise. This should be a relief to support workers everywhere. Nobody wants to be responsible for administrating life-dependent and fluctuating medication when they have limited medical training. I am pretty sure that I have had actual nightmares about that exact scenario. Of course, the situation does become very different if the support worker has had comprehensive diabetes training and is able to confidentially monitor blood sugar levels and administrate insulin.

The AAT also rejected that NDIA’s assertion that the responsibility for exploring alternative supports lies solely on the Participant. They found that neither party alone bears the onus of proof in Tribunal proceedings. This, in itself, is an important point of clarification for any Participant preparing for an appeal.

 

As we are so often told, the NDIS is the largest social reform Australia has seen since the introduction of Medicare in the 1980s. As a result, we are always walking in uncharted territory. It is only through cases like this one that we can glimpse into what the Scheme will look like in the future. However, such rulings only become truly meaningful if providers and Participants ensure that the precedents set are enforced. Otherwise, they simply become dusty files lost in a wave of bureaucracy.

You can read the full ruling here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2018/3099.html?context=1;query=national%20disability%20insurance;mask_path=au/cases/cth/AATA

*DSC has made the decision to not publish the full names of adult AAT applicants. We believe that all NDIS Participants should have the right to privacy and do not wish to contribute to undermining it.