NDIS worker screening updates
Expert blog series | 2 minute read
On 1 February 2021, new worker screening arrangements will apply in all states and territories. Once fully implemented, the system for worker screening in the NDIS will create a nationally consistent, portable system of clearances for those who work with people with disability. This article explains the arrangements that apply during transition to the new system and providers’ obligations under the NDIS Practice Standard for worker screening.[1] Tools and templates relating to the worker screening requirements can be accessed from the links below.
What does the Practice Standard for worker screening require?
Risk assessed roles
Providers must prepare and maintain a written list of all risk assessed roles, which includes roles performed by “other personnel” (i.e. contractors). Risk assessed roles include key personnel and any role in which the normal duties require more than incidental contact with people with disability or delivery of certain supports.[2]
A provider must only allow someone to engage in a risk assessed role if the person holds a NDIS worker screening clearance or if an exception applies.[3] The exceptions are:
the worker is in the process of obtaining a NDIS worker screening clearance;
the provider is subject to special arrangements during the transition period; or
the person is a high school student on placement.[4]
People engaged in risk assessed roles
A written list must be kept that records information about all persons that are engaged in risk assessed roles, including details of their clearance (or the exception that applies).
A checklist that provides commentary on these requirements and template register for recording information about risk is available (free) here.
Risk management plan
A plan for managing risk to people with disability when someone is in the process of obtaining a clearance is also required.[5] This plan should accurately identify risks and include relevant and responsive measures to address and mitigate those risks.
Arrangements with contractors
Where the role is performed by a contractor, the provider must have an agreement in place with that contractor which imposes requirements relating to worker screening on the contractor.[6] A checklist of legal and NDIS specific issues in contractor agreements is available here.
What are the arrangements during the transition period?
A worker who holds a clearance issued under an existing state or territory clearance regime can engage in a risk assessed role without a clearance if:
the clearance type is recognised as an “acceptable check”;[7]
the provider is subject to the transitional arrangements; and
the provider is complying with the transitional arrangements.[8]
The transition period ends on 31 January 2021 in all jurisdictions (or earlier if notice is given), but persons who hold an acceptable check may rely on it after the end of the transition period until such time that the check expires. This provides time for staff to apply for a NDIS clearance once the system is operational. However, once the NDIS Commission gives notice that the special arrangements no longer apply, all staff in risk assessed roles will be required to either hold an NDIS worker screening clearance or be in the process of obtaining one.[9]
1 The NDIS Practice Standard for worker screening is set out in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018, Part 4 (‘NDIS Worker Screening Rules’).
2 Refer to r 6 of the NDIS Worker Screening Rules (n 1) for the definition of “more than incidental contact”. The list of supports and services that have been specified by the NDIS Commission is available on online at: https://www.ndiscommission.gov.au/document/891
3 NDIS Worker Screening Rules (n 1) r 13(2).
4 See NDIS Worker Screening Rules (n 1) r 14(1).
5 NDIS Worker Screening Rules (n 1) r 12(1).
6 These requirements are set out in NDIS Worker Screening Rules (n 1) r 13(4).
7 See Part 4 of the NDIS Worker Screening Rules (n 1).
8 NDIS Worker Screening Rules (n 1) r 14(b).
9 See NDIS Worker Screening Rules (n 1) NSW: 23(3)(c), 23(11), SA: 24(9), VIC: 25(5)(e), 25(7), QLD: 26(4)(d), 26(7), TAS: 27(5)(d), 27(8), ACT: 27(5)(d), 27(8), NT: 29(5)(d), 29(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. |
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