The newly released National Disability Insurance Scheme (Restrictive Practice and Behaviour Support) Rules 2018 detail how the Quality and Safeguarding Commission will regulate and monitor the use of restrictive practices. They set out the conditions that apply to all registered NDIS providers using regulated restrictive practices or working with participants with complex behaviour support needs.
The rules are based on the Quality and Safeguarding Framework and the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (the Restrictive Practices Framework).
So, what does this mean?
The new rules will commence in July 2018. However, until full NDIS rollout, they are subject to the transitional arrangements of each State and Territory.
They aim to ensure that restrictive practices are only used in circumstance where complex behaviours place the participant or others at risk of harm.
States and Territories may choose to prohibit the use of particular types of restrictive practices, including regulated restrictive practices. It will thus not be the role of the Commission to authorise or prohibit the use restrictive practices. However, the Commissioner will work with States and Territories to develop a regulatory framework that meets nationally consistent minimum standards.
As such, restrictive practices must:
Not occur when the relevant State and Territory prohibits their use;
Be undertaken in accordance with State and Territory authorisation processes and a behaviour support plan;
Be recorded by the provider and reported to the Commissioner, so that the Commissioner can effectively monitor the use of regulated restrictive practices in the NDIS.
The use of all regulated restrictive practices will need to be authorised and evidence of this authorisation must be lodged with the Commissioner.
Use of Restrictive practice with a Behaviour Support Plan
Regulated restrictive practices must only be used in accordance with a participant’s Behaviour Support Plan (BSP). This plan will need to be developed by a registered specialist behaviour support provider. These providers must be Registered and Certified by the Quality and Safeguarding Commission. They are also the only people that can review a BSP.
Where there is no BSP in place, the NDIS provider must take reasonable steps to facilitate the development of an interim BSP. This must be done within 1 month of a restrictive practice being used or proposed. A comprehensive BSP will be required within 6 months.
If a restrictive practice occurs without a BSP or State/Territory Authorisation, then the provider must obtain authorisation within that jurisdiction as soon as possible.
Providers will need to provide monthly reports to the Commissioner on their use of restrictive practices. If they have only been granted short-term approval to use restrictive practices, then they must report every 2 weeks.
Providers are obligated to take all reasonable steps to facilitate the development of a BSP when it becomes apparent that a participant they are working with has complex behaviour support needs or that a restrictive practice may be necessary to prevent harm.
What could go wrong?
In order to receive funding for a behaviour support specialist to create a BSP, participants are likely to need to undergo a plan review. Currently, the waiting period for unscheduled plan reviews can be up to 8-9 months. By contrast, an interim BSP needs to put in place within 1 month. It is not clear yet how the NDIA intends to manage these competing time frames.
Moreover, in some jurisdictions there is a thin market for behaviour support specialists. Anecdotally, we know that there are areas with waiting lists of 4-6 months. Hopefully, the Commissioner comes armed with strategies ready for investment in these thin markets.
What do providers need to do?
Providers need ensure they have identified their current NDIS participants who are subject to regulated restrictive practices or Behaviour Support Plans. It is also advisable to make sure the processes and systems of your organisation can identify, manage and assess the risks and requirements of these new rules. Lastly, establish relationships with behaviour support specialists as, if you don’t already, you will be working with them soon.
This article is part of our current series on the new Quality and Safeguarding Framework. You can check out our other articles here: