Many providers DSC consults with have been asking about what the new NDIS national worker screening system will look like. We won’t know all the answers until it becomes operational next year but here is what we do know.
Why do we need a new system if we are already screening our workers?
The short answer is, not all clearances are equal.
The NDIS Quality and Safeguarding Framework (the Framework) recognises that in principle, worker screening can be undertaken by a range of bodies including individual employers, commercial screening agencies or government screening bodies. However, they found that in practice who does the screening affects what information is taken into account, the process and the way the result is used.
The Framework states that in particular, enhanced police information is not made available to individual employers or commercial screening agencies for security and privacy reasons. Government managed screening processes are more effective than employer managed screening processes because they can take into account a wider range of information, providing a better indication of the potential risk a person poses.
This is really important because many people with disability have experienced poor treatment and abuse by workers with the required clearance. Anything we can do to strengthen and equalise our screening processes can only a good thing.
What will be assessed through the NDIS Worker Screening Check, is it just another name for a police check?
The Framework tells us that decisions will be made on the basis of whether or not (on the balance of probabilities) a person poses an unacceptable risk to participants. It will take in to account information such as:
convictions (including spent and quashed convictions)
other police/ court information (including current or pending charges)
Apprehended Violence Orders
Child Protection Orders
child protection information
international police checks for those who have worked overseas (when feasible)
workplace misconduct (which comes to light through complaints and serious incident reporting).
As it is a national process, workers can travel from one state or territory to another and their clearance (and history) will move with them.
When will this come in to effect?
The NDIS Worker Screening Check will start in the ACT, NSW, the NT, QLD, SA, TAS and VIC from 1 July 2019, and in WA from July 2020. Until then, existing state or territory worker screening or police check requirements will continue. If you are operating in NSW or SA where the NDIS Commission is already overseeing your quality and safeguarding, you can find out which checks you need on the Commission’s website.
Does everybody working in the NDIS need an NDIS Worker Screening Check?
NDIS registered providers
NDIS registered providers must consider whether the individuals they employ are in a risk assessed role.
Risk assessed roles are:
key personnel roles
roles for which the normal duties include the direct delivery of specified supports or specified services to a person with disability
roles for which the normal duties are likely to require more than incidental contact with people with disability.
There is also an exception for secondary school students on a formal work experience program provided they are directly supervised by another worker who has gone through a check.
This will be a market driven requirement. Workers who work for unregistered providers can apply for an NDIS Worker Screening Check. This is a pretty new thing because screening requirements have historically been part of funding agreements, meaning they applied primarily to government funded services (and some brokerage contracts). Under the NDIS self-managing participants can require that their workers have an NDIS Worker Screening (and they are encouraged to do so). It is worth noting that some states and territories are deciding whether or not they will enforce checks for all providers regardless of registration status (so make sure you keep up to date with those requirements first and foremost).
Who is responsible for this?
The Commonwealth, states and territories and NDIS Registered Providers all have a role to play in national screening.
The NDIS Registrar
The NDIS Registrar (of the NDIS Commission) will lead the collaboration with states and territories and will have broad design responsibility, including determining scope, information to be considered, and a decision-making framework.
States and Territories
States and territories will manage and operate worker screening units (and determine how these will interact with other checks such as working with children clearances).
Registered NDIS providers
Registered NDIS providers must ensure that workers engaged in risk assessed roles have received clearance under the NDIS Worker Screening Check (or under your current state system during the transition period). Failing to do so could be a breach of your registration conditions. It may also be an offence under your state and territory legislation for workers to work without a clearance if their role requires a clearance.
Registered NDIS providers are also required to maintain a written list of risk assessed roles in your organisation (and kept for seven years). These records must be clear and legible and be kept up to date in a way that would allow you, the NDIS Commission or a quality auditor to know which workers were engaged in a risk assessed role on any given day in the past seven years. To find out what the list must include see Record-Keeping.
You are also responsible for ensuring that sub-contractors have the appropriate clearances and establishing a contract that requires the sub-contractor to fully disclose any matters that may affect their suitability as well as other conditions. See Engaging Sub-Contractors for more detail. We will be developing an article on working with sub-contractors soon.
Will all people with a criminal history be excluded from working in the NDIS?
No. The assessment of risk is designed to ensure that people who have committed offences in the past that have no bearing on their current ability to safely support a person with disability will not be excluded from the workforce. Those that don’t receive a clearance may appeal the process – firstly through the screening unit, then through their relevant state or territory administrative appeals tribunal.
If I ensure all my workers have an NDIS Worker Screening Check can I be assured I am meeting all my safeguarding obligations to participants?
No, as the Framework states screening is one of a number of standard tools used in recruitment processes to inform whether someone will pose an unacceptable risk to people using a service. On its own, screening is insufficient for preventing abuse and neglect, but it is a necessary element in safeguarding.
Recruitment practices that consider whether workers have the right values, skills and references are still a critical safeguard and are the core responsibility of providers. Establishing an organisational culture of zero tolerance to abuse and giving staff adequate training on recognising and reporting unacceptable practice is absolutely the responsibility of individual NDIS providers. The NDIS (Practice Standards – Worker Screening) Rules 2018 clearly state that the primary responsibility for recruiting appropriate staff and providing a safe environment for people with disability rests with employers, a worker screening outcome is one source of information that can support employers in fulfilling this responsibility.
What is the national database?
Our understanding is that a national database will support the new NDIS Worker Screening Check by keeping a register of cleared and excluded workers, ongoing monitoring of criminal history records of workers, providing a one stop shop to verifying interstate clearances and helping providers with their record keeping requirements.
The national database is expected to be available from July 2019, when the NDIS Worker Screening Check is available in most jurisdictions.
In our state, we just need our workers to apply for a worker screening check to get them started. Is this still the case under the NDIS?
Depending on the laws in your state or territory, a person may begin working in a risk assessed role once they have submitted an application for an NDIS Worker Screening Check (or an acceptable state-based check). However, if you choose to engage someone before a final decision has been made about a clearance, you must have appropriate safeguards in place - see engaging someone before they have a check.
In practice, it may be simpler and safer for a provider to just wait until a check comes back. However, your organisation may decide to develop a risk management plan for instances where it is impractical to do so. In developing this plan ensure you are compliant with the conditions on the Commission’s website and the NDIS (Practice Standards—Worker Screening) Rules 2018.
What is an interim bar?
An interim bar means that information has been identified that indicates a person may pose a risk to a person with disability but a final decision has yet to be made. It is designed to prevent such workers from engaging in regulated work until the application has been finalised.