5 important things to know about NDIS service agreements
Expert blog series | 3 minute read
A written service agreement is essential to the delivery of services to participants in the NDIS. Whether you are developing a new service agreement or updating your existing agreement, there are a few key issues that should be managed. This article discusses five key issues with some helpful further resources.
1. Language
Using technical language risks confusing participants or their families.
Making sure that the agreement uses plain English and short sentences is fundamental. Plain English and simple sentence structures promotes understanding. Clear, plain English also helps give certainty about what the agreement says. This reduces the risks of later disputes.
We also recommend that, while written language is important, it may be appropriate to communicate the agreement a different way for some participants, using other methods of communication the person is most likely to understand. [1]
2. Explaining the supports to be delivered
A key objective for the service agreement is to explain the supports that will be delivered. An effective way to do this is to include a “schedule of supports” that lists each item of support and the time and day of the week those supports will (generally) be delivered.
In our experience, it is likely that needs and circumstances fluctuate, which will result in changes to the plan. For this reason, it is preferrable to record information about the supports that will be delivered separately in a schedule to the agreement (or similar). This makes it easier to update.
Information in the schedule of supports is usually formatted into a table. You can access a free template schedule of supports from our website here.
3. Updating rate limits and the terms of the agreement
Rate limits in the NDIS Price Guide are updated regularly to reflect changes in the cost of labour and other factors that affect pricing. [2] Your service agreement should explain the process for how the client will be informed of rate adjustments and how other significant changes to the agreement are made.
Changes to rates made in accordance with the Price Guide should not require the agreement to be re-signed. The usual approach is to provide the client with reasonable notice of the changes by providing a copy of the document (for example, the schedule of supports) that lists the new rates. Generally, a minimum of 14 days’ notice is reasonable. The agreement should describe this process and confirm how notice of changes is to be given. The process may vary depending on the needs and preferences of the client or the legally appointed decision-maker.
4. Keeping the agreement up to date
In addition to changes in rate limits, there are regular changes to claiming rules that alter what costs can be claimed by providers delivering certain categories of supports. This includes telehealth services, non-face-to-face support provision, staff travel and activity-based transport. Importantly, the claiming rules for these costs require that the provider obtain the participant’s agreement to claim for these things in advance.
5. Understanding who can sign the agreement
It is good practice for agreements to be signed when appropriate. [3] If the participant has a legally appointed substitute decision-maker, it may be necessary for that person to sign the agreement. This will depend on the terms of the substitute decision-maker’s appointment and the circumstances of the individual participant. If the person has a plan nominee appointed to manage funding for supports, that person may sign the agreement. [4]
Entering into service agreements may be within the scope of authority for some guardians. Sometimes, there will be a guardian and an administrator of the person’s estate. In these cases, it may be the administrator who is authorised to sign the agreement.
Note the participant is presumed to have capacity to determine their own best interests. [5] There must be collaboration with the person, and if an alternative decision-maker is appointed, it may be appropriate for both them and the participant to sign the agreement.
MPS Law has developed a template service agreement and schedule of supports that you can preview here.
1 See National Disability Insurance Scheme (Quality Indicators) Guidelines 2018 ss 6(2), 21(2) (‘NDIS Quality Indicators’).
2 For example, see Fair Work Ombudsman, ‘Social and Community Services Industry Pay Rates – Equal Remuneration Order’ here
3 The NDIS acknowledges that it will not always be appropriate for agreements to be signed, or the participant may choose not to have an agreement in writing: NDIS Quality Indicators (n 1) s 21(3), 70(6). Where it is not practicable, or the participant does not want an agreement or chooses not to sign, a record should be made of the circumstances in which the participant does not receive a copy of the agreement.
4 See National Disability Insurance Scheme Act 2013 (Cth) ss 42(2), 43(2) (‘NDIS Act’). The nominee is required to ascertain the wishes of the participant. A plan nominee must first consider and determine that it is not possible for the person to do the act, or being supported to do, an act before acting on behalf of the participant: National Disability Insurance Scheme (Nominees) Rules 2013 ss 5.5, 5.6.
5 NDIS Act (n 4) 4(8).
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Kai Sinor, Senior Lawyer, MPS Law Kai Sinor is a legal practitioner and former Assistant Director for Compliance at the NDIS Quality and Safeguards Commission. Kai has worked across a variety of social justice, regulatory and human rights settings, within and outside of Australia. His expertise broadly spans regulatory compliance, advising on commercial and regulatory issues in the social and human services sector, and the investigation of deaths in custody. As the Senior Lawyer at MPS Law, Kai provides legal services to NDIS providers on compliance, corporate and commercial matters. You can contact Kai via email or by visiting the MPS Law website. |
This commentary is general in nature and provided for informational purposes only. It is not intended to be comprehensive and does not constitute legal advice. You should seek legal or other professional advice or consult with the appropriate government authority if you are unsure about how the issues raised in this commentary apply to the circumstances of your business.
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