Fear by his mother Vanda Fear and National Disability Insurance Agency
[2015] AATA 706
•14 September 2015
Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706 (14 September 2015)
Division
NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s)
2015/1721
Re
Paul Fear by his mother Vanda Fear
APPLICANT
And
National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal Senior Member Jill Toohey
Member Regina PertonDate 14 September 2015 Place Sydney The Tribunal affirms the decision under review.
.....................................................
Senior Member J F Toohey
CATCHWORDS – National Disability Insurance Scheme – acquired brain injury – applicant cared for at home – participant in the NDIS – reasonable and necessary supports – whether a pulse oximeter a reasonable and necessary support – whether bedside and portable oral suctioning machine a reasonable and necessary support – whether most appropriately funded under the NDIS – whether more appropriately funded under the general health system – decision under review affirmed
Legislation
National Disability Insurance Scheme Act 2013 ss 3, 4, 5, 9, 21, 24(1), 32, 33, 34(1), 48(5), 209(3)
Safety Rehabilitation and Compensation Act 1988 s 4
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
Mulligan and National Disability Insurance Agency [2014] AATA 374
Mulligan v National Disability Insurance Agency [2015] FCA 544
Young and National Disability Insurance Agency [2014] AATA 401
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Operational Guideline – Planning and Assessment – Supports in the Plan – Interface with Health
The Australian Oxford Dictionary
World Health Organisation International Classification of Functioning, Disability and Health
REASONS FOR DECISION
Senior Member Jill Toohey
Member Regina PertonIntroduction
Mr Paul Fear suffered a catastrophic brain injury when he was 17 and depends on others for all aspects of his care. He is now aged 32. With the help of carers and others, his parents have cared for him at home since not long after his injury.
Mr Fear is a participant in the National Disability Insurance Scheme (NDIS) and receives funding for a range of supports. On 7 May 2014, the National Disability Insurance Agency (NDIA), which administers the NDIS, decided that certain supports requested by Mr Fear’s parents were not reasonable and necessary supports within the meaning of the National Disability Insurance Scheme Act 2013 (the Act) and that funding would not be provided for them.
Since that time, discussions between Mr Fear’s parents and the NDIA have led to agreement that funding would be provided for some of the supports that were in dispute. Funding for the following equipment remains in dispute:
(a)a pulse oximeter, used to measure blood oxygen levels;
(b)a bedside oral suctioning machine;
(c)a portable oral suctioning machine.
There is no argument that Mr Fear needs these items of equipment. The pulse oximeter monitors his blood oxygen levels because oxygen saturation below certain levels can indicate organ failure and can lead to respiratory or cardiac arrest. The oral suctioning machines do the work of removing saliva because Mr Fear cannot swallow unaided. Without oral suctioning, he is at risk of developing infections including pneumonia.
The question is whether these items of equipment are most appropriately funded under the NDIS or whether they are more appropriately funded under the general health system.
The National Disability Insurance Scheme
The NDIS commenced operation on 1 July 2013. It provides supports for people with disability in the form of coordination, strategic and referral services; funding to persons or organisations to enable them to assist people with disability to participate in economic and social life; and funding for reasonable and necessary supports for persons who qualify to be participants in the NDIS.
The objects of the Act are set out in s 3. We discuss these further below. Section 4 sets out general principles by which actions under the Act are to be guided. Section 5 sets out further principles by which actions of persons who may do acts or things under the Act on behalf of others are to be guided.
The importance of ensuring the financial sustainability of the NDIS so that it functions as an insurance-based scheme to maximise the participation, productivity and inclusion of people with disabilities, is emphasised throughout the Act. When giving effect to the objects of the Act, or performing any function or exercising any power under the Act, regard must be had to the need to ensure the financial sustainability of the scheme: s 3(3)(b), s 4(17).
Participants’ plans
A person who meets the access criteria in section 21 of the Act becomes a participant in the NDIS: s 9. The NDIA must help each participant prepare a plan comprising a participant’s statement of goals and aspirations and a statement of participant supports: s 32(1) and s 33. The statement of participant supports includes the reasonable and necessary supports (if any) that will be funded under the NDIS: s 33(2).
Reasonable and necessary supports
Section 34(1) provides that, for the purpose of specifying in a statement of participant supports the reasonable and necessary supports that will be funded under the NDIS, the Tribunal must be satisfied of all of the following in relation to each:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Minister has made Rules under s 209(3) about matters concerning determinations under the Act. Relevant to these proceedings are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules) which deal with the assessment and determination of reasonable and necessary supports that will be funded under the NDIS. The Rules form part of the legislation.
The CEO of the NDIA has made Operational Guidelines to assist staff in making decisions and performing other functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634. Relevant to this decision is Operational Guideline – Planning and Assessment – Supports in the Plan – Interface with Health (the Operational Guideline).
The decision under review
Since becoming a participant in the NDIS, Mr Fear has had a number of participant’s plans prepared. As agreement has been reached between the NDIA and his parents about funding for particular supports, his plans have been amended. His statement of goals and aspirations has varied from time to time but has generally included the goals “to have more independence from mum and dad so that they can have breaks from providing direct care for me”, “to have a holiday with my family”, “to remain living at home with mum and dad as long as possible”, and to “maintain my health and well-being so I can stay living at home”.
Mr Fear’s current plan was made on 20 December 2014. It expires on 19 December 2015 when it is to be reviewed in accordance with s 48(5) of the Act.
For the purposes of these proceedings, the decision we are reviewing is a decision first made on 7 May 2014 and most recently restated on 19 March 2015, that a pulse oximeter, and bedside and portable oral suctioning equipment, are not reasonable and necessary supports on the ground that neither is most appropriately funded through the NDIS and both are more appropriately funded through the general health system.
The other criteria in s 34(1) are not in dispute.
Information before the Tribunal
At a hearing on 1 September 2015, we heard from Mr Fear’s mother, Vanda Fear, and from Jacqui Pierce, a case manager who has been closely involved with the family for over 10 years. We also had a written statement from Mr Fear’s mother and father, and an article by Keith Andrews entitled “Rehabilitation practice following profound brain damage” Neuropsychological Rehabilitation (2005) 15 (3/4), 461-472.
The NDIA has provided a large bundle of documents (the “T-documents”) which include reports from Claire Plapp, Mr Fear’s physiotherapist since 2007; Natalie Horman, his occupational therapist; and Dr Christopher Steinfort, consultant physician in thoracic and sleep medicine, who is closely involved in monitoring Mr Fear’s condition. The reports from Ms Horman and Dr Steinfort are particularly relevant to these proceedings. Many of the other T-documents concern supports that have been agreed to over time since Mr Fear became a participant in the NDIS and have no direct bearing on this decision.
Background
There is no dispute about any of the facts. Mrs Fear told us that, when her son sustained his brain injury, she and her husband were told he was beyond rehabilitation and he should be in a nursing home. They refused to accept that advice and have cared for him at home since he left hospital. At first he was in a partial comatose state and, for the first two years, had a tracheotomy. After years of care and therapy, he is now able to breathe on his own without a tracheotomy, he is much more alert and aware of his surroundings and environment, and is able to share in family life. He remains profoundly disabled.
Before the establishment of the NDIS, funding for therapy, carers and equipment for Mr Fear was provided through a number of State-based disability programs under the Victorian Department of Human Services (DHS). It included funding for a pulse oximeter, and bedside and portable oral suctioning equipment. The NDIS now funds all the supports previously funded under State programs except for the pulse oximeter and the bedside and portable oral suctioning equipment. It also funds some additional supports not previously funded under the State system. Mrs Fear acknowledges the additional supports but says, the pulse oximeter and oral suctioning equipment are essential supports without which her son could not live at home and would have to be hospitalised.
In caring for their son at home for all these years, Mr Fear’s parents have not only made his life immeasurably better than it would have been had they taken the advice of doctors in the early days, they have no doubt saved the community countless thousands of dollars in hospital care.
The pulse oximeter
Mr Fear’s body is unable, because of his brain injury, to regulate his blood oxygen and he is unable to let his carers know when his levels might be low. The pulse oximeter enables them to monitor his oxygen saturation levels to see that they are maintained between 95 and 100 per cent. If his levels fall, they can often be restored simply by repositioning him; if that is not successful, supplementary oxygen may be needed.
Mrs Fear told us that, for the first two years after her son came home, the oximeter was not required because he had a tracheotomy. Once the tracheotomy was removed, she undertook extensive training in using the oximeter, and all of his carers are either already trained, or undergo special training in its use.
The pulse oximeter is used during the day at intervals between half an hour and several hours, depending on things such as if Mr Fear is feeling unwell or if he is in a deep sleep, when his sleep apnoea increases his risk. At night, probes are attached to his feet so his levels can be monitored while he is sleeping.
Ms Horman provided a written report dated 10 June 2015 which included details about the pulse oximetry. She reported that, as a result of his brain injury, Mr Fear’s respiratory system is inefficient and he is at ongoing risk of developing respiratory illnesses such as pneumonia and respiratory failure. She described pulse oximetry as a painless, non-invasive means of monitoring blood oxygen levels used to assess the adequacy of a person’s oxygen levels “to guide their care needs”. She stated that, while it can be less accurate than taking arterial blood gases, it does not have to be administered by a qualified health professional, it does not involve an often painful arterial injection, and the results are instantly available. She stated that access to pulse oximetry is essential for regularly determining Mr Fear’s blood oxygen levels, to allow him to remain living at home, to reduce risk of significant health issues and allow for ongoing functional maintenance and progress.
Dr Steinfort’s reports are referred to below. He refers to Mr Fear’s “background asthma” which we understand from Mrs Fear predates, and is unrelated to, his brain injury. As we understand his reports, Dr Steinfort says Mr Fear needs the pulse oximeter to regulate his blood oxygen levels rather than to control his asthma. Mr Fear’s parents accept that, if it were needed to manage his asthma, it would be the responsibility of the health system. For this reason, they have paid for a nebuliser for his asthma themselves.
Mrs Fear told us that the current pulse oximeter unit was replaced in about 2012 under the DHS program. The unit itself may still last for many years but she and her husband want the peace of mind they had under the DHS program which enabled the urgent replacement of essential equipment in the event of a breakdown.
The “consumables” for the pulse oximeter, which are the probes that attach to Mr Fear’s body, need replacing on average every six months at an average cost of $484 each year. The NDIS is currently meeting the cost of these “consumables” pending review of Mr Fear’s current plan on 19 December 2015. We discuss this further below.
Oral suctioning equipment
As a result of his brain injury, Mr Fear cannot swallow. He is fed by means of a Percutaneous Endoscopic Gastrostomy (PEG) feeding tube, although he is learning to swallow and Mrs Fear hopes he will eventually have the pleasure of tasting real food again. He needs oral suctioning to manage saliva. As well as a bedside suctioning unit, he has a portable unit which enables him to leave the home and join in activities with his family such as sailing and family gatherings.
In a report dated 11 November 2013, Dr Steinfort said that Mr Fear had regained consciousness following many months in a coma after his injury; he is able to indicate to his parents by eye movement “that there is some comprehension present”; he has bilateral spasticity and is unable voluntarily to move his arms or legs.
Dr Steinfort reported that Mr Fear has “background history of asthma and has chronic colonisation of his lower respiratory tract with pseudomonas aeruginosa”. He outlined Mr Fear’s care needs including “he has home oxygen supply to prevent hypoxia when it occurs, he is on regularly inhaled Seretide for his asthma control and is on nebulised Tadim to keep his chronic pseudomonas colonisation of his airway suppressed”. He said Mr Fear had required intermittent hospitalisation over the years, “usually once every 2 years or so and usually with pneumonia” and is regularly attended by his general practitioner. Mrs Fear told us that, with improved support, her son has only needed hospitalisation once in the past four years.
In a further report dated 15 June 2015, Dr Steinfort stated that Mr Fear had multiple admissions to hospital because of recurrent bouts of chest infections associated with pneumonia; he had “background asthma” before his injury and has had recurrent bouts of pneumonia as a result of aspirating undigested food. Dr Steinfort reported that this problem had been minimised with the use of PEG feeding. He said Mr Fear has “home suction and portable suction devices to be used whenever [he] becomes gurgly in his upper airways. He then requires active suction to clear his upper airway. … Because of [his] underlying asthma he needs regular asthma medication and is at risk of recurrent chest infections with pseudomonas aeruginosa. For this he receives daily nebulised Colistin”. Dr Steinfort concluded by stating he has “immeasurable respect and admiration for his parents who have maintained his care over the past 14 years”.
We understand from Mrs Fear and from Dr Steinfort’s reports that the oral suctioning equipment is not required to manage Mr Fear’s asthma, rather it is to manage his inability to swallow and to reduce the risk of aspirating food and developing chest infections.
When the bedside machine they previously had on permanent loan from the DHS broke down after Mr Fear transferred to the NDIS, Mr and Mrs Fear paid approximately $1500 to replace it. They still have the portable equipment funded under the State program. The NDIS is currently meeting the cost of the associated “consumables” pending review of Mr Fear’s current plan on 19 December 2015. We discuss this further below.
General principles
In considering whether each of these supports is most appropriately funded by the NDIS or is more appropriately funded by the health system, it is important to consider the nature and purpose of the NDIS generally.
The objects of the NDIS Act are set out in s 3. As well as giving effect to Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities, they include:
·supporting the independence and social and economic participation of people with disability;
·providing reasonable and necessary supports for participants; and
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.
The objects of the Act are to be achieved by: providing the foundation for governments to work together to develop and implement the NDIS launch; and adopting an insurance based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability: s 3(2).
Section 3(3) provides that, in giving effect to the objects of the Act, regard is to be had to matters including:
·the broad context of disability reform provided for in the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and
·the provision of services by other agencies, departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
The NDIS implemented, in large part, the recommendations of the Productivity Commission’s 2011 report, Disability Care and Support, Report No 54, 31 July 2011. Regarding the role of “mainstream” services such as education, health care, public housing, transport and education services, the Commission said (at p 238):
It is generally accepted that disability services should not replace mainstream or other specialist services available to the broader population, or be expected to meet all the needs of people with disability. Indeed, a key policy goal is to move away from primary reliance on specialist disability services to the use of mainstream services or at least a mix of the two.
Further, the Commission said:
Access to generic services, such as health and housing, can affect demand for NDIS-funded services, and vice-versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ’silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services.
That said, the Commission recognised (at pp 238-239) that there were difficulties establishing “clear boundaries” between the disability service system and other mainstream service systems and that, even where boundaries were clear, they were not always consistent as between the states. It recommended that primary care and inpatient and outpatient hospital-based services, and medical and pharmaceutical products, should remain outside the scope of the scheme. Even then, it said (at p 182), it was “likely that some ambiguity will remain around the respective responsibilities of the health and disability system”, in particular “which system is responsible for meeting the support needs of individuals with a chronic health condition”. Moreover, it recognised (at p 183) that “gaps between disability and health services persist”.
The Supports for Participants Rules
The general principles in s 4 of the Act include the principle that reasonable and necessary supports should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
The Explanatory Statement to the Support for Participants Rules issued by the Minister for Families, Community Services and Indigenous Affairs and the Minister for Disability Reform refers, by way of background, to the “commitment by the Commonwealth, State and Territory Governments to establish [the NDIS]” and to the “Principles to determine the responsibilities of the NDIS and other service systems” agreed to by the Council of Australian Government on 19 April 2013. It states that Schedule 1 of the Supports for Participants Rules sets out considerations derived from these principles.
Schedule 1 sets out considerations that must be taken into account when deciding whether a support is most appropriately funded through the NDIS and is not more appropriately funded through other general service systems such as the health, education, employment and housing systems. Clause 7.3 states that “[f]or the avoidance of doubt”, Schedule 1 “does not purport to impose any obligations on another service system to fund or provide particular supports”.
In relation to health (excluding mental health) Schedule 1 states:
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5 The NDIS will not be responsible for:
(a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c) funding time-limited, goal-oriented services and therapies:
(i)where the predominant purpose is treatment directly related to the person’s health status; or
(ii)provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d) palliative care.
It seems clear enough that the Support for Participants Rules draw a distinction in broad terms between supports related to a participant’s ongoing functional impairment that enable him or her to undertake activities of daily living including some which may be delivered or supervised by health professionals, and those that may broadly be described as clinical treatment of health conditions and health services.
Operational Guideline Planning and Assessment - Supports in the Plan - Interface with Health
No doubt in recognition of the potential overlap between “disabilities” and “health conditions”, the Operational Guideline states that, depending on its purpose, a support may be more appropriately funded by either the NDIS or other parties. It describes supports under three headings:
(i)those that it is generally more appropriate for the NDIS to fund (emphasis added);
(ii)those that, depending on their purpose, can be more appropriately funded by either the NDIS or other parties; and
(iii)those that are generally more appropriate for other parties to fund (emphasis added).
“Other parties” includes government departments and agencies, independent organisations funded by governments to provide services, and individuals and families: cl.13.
The relevant part of the Operational Guideline concerning who should fund aids and equipment states:
Aids and equipment
a. NDIS: aids and equipment which are permanent and for the purpose of improving functioning and related to a participant’s self-care needs (including continence aids and catheters), except for medical or surgical procedures (e.g. the NDIS would not be responsible for providing continence aids and catheters for participants undergoing treatment within hospital settings),
b. Other parties: aids and equipment which are for the permanent or temporary purpose of regulating or treating a medical or health condition or aids and equipment associated with medical or surgical procedures and post-acute recovery.
Consideration
The Act, the Supports for Participants Rules and the Operational Guideline employ a number of terms which are central to their application but which are not defined. So, for example, it may be difficult to draw lines between a disability, an associated functional impairment, and a participant’s health conditions, and it may be difficult to determine, when applying the Act, the Rules and the Guideline to individual circumstances, whose responsibility a particular support should be. This case is one example.
The term “disability”, for example, is not defined in the Act (see Mulligan and National Disability Insurance Agency [2014] AATA 374 at [18]-[25] and Mulligan v National Disability Insurance Agency [2015] FCA 544 at [15]-[17] and there may be little obvious distinction between disability and chronic illness or medical conditions (see the Productivity Commission report at p 182).
Nor are the terms “clinical treatment” and “health conditions” in Schedule 1 to the Rules defined.
“Medical treatment” is commonly given broad meaning in legislation. For example, in the Safety Rehabilitation and Compensation Act 1988 (Cth) it encompasses medical, surgical or therapeutic treatment by, or under the supervision of, a legally qualified medical practitioner; therapeutic treatment by, or under the supervision of, a registered physiotherapist, osteopath, masseur or chiropractor; an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner; treatment and maintenance as a patient at a hospital; and nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise. "Therapeutic treatment" includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury: s 4.
We understand the term “medical treatment” in the Safety Rehabilitation and Compensation Act 1988 to have, broadly, the same meaning as “clinical treatment” in the Support for Participant Rules. “Clinical” in The Australian Oxford Dictionary means, relevantly, of or for the treatment of patients.
The term “health conditions” may also be broad. In the World Health Organisation International Classification of Functioning, Disability and Health it comprehends “diseases, disorders and injuries”. In some cases, the neurological or physical impairment that gives rise to a disability for the purposes of the disability requirements in s 24(1) of the Act might also be regarded as a chronic health condition. (For discussion about the intersection of the NDIS with the health system and chronic health conditions, see the report of the Productivity Commission at pp 182-185).
Where questions of interpretation arise, it will be necessary to consider the nature and purpose of the support for which funding is sought in light of the objects and purpose of the NDIS.
Submissions regarding the pulse oximeter
For Mr Fear it is submitted that the pulse oximeter satisfies the description in Rule 7.4 of supports for which the NDIS will be responsible. It is submitted that his need for oximetry is directly attributable to his brain injury and without it he would be unable to remain at home. It is submitted that his home and family are his community, meaning the pulse oximeter is integrally linked to the care and support that he needs to live in the community.
It is further submitted that Mr Fear has no underlying health issues, rather that he has a disability, and the equipment is required to manage his disability and not his health. It is submitted that, in the same way that his wheelchair replaces the functioning that enables him to walk, the pulse oximeter replaces his body’s ability to regulate his oxygen levels.
It is further submitted that the NDIS is most appropriate to fund this equipment because it is delivering the majority of the supports that enable him to live in the community, it is permanent, and for the purpose of improving his functioning and related to his self-care needs. Further, that there is no alternative source of funding available for this support.
For the NDIA it is submitted that the primary purpose of the pulse oximeter is to measure a particular aspect of Mr Fear’s essential bodily processes, being the oxygen saturation levels in his blood. It is submitted that it does not play an integral role in maintaining or regulating his oxygen levels of themselves but rather, as Ms Horman’s report indicates, enables an assessment of the adequacy of his blood oxygen levels to inform whether more oxygen is required, thereby guiding his “care needs”. For this reason, the NDIA submits, it cannot be characterised as a support that enables him to undertake activities of daily living or as a maintenance support integrally linked to the care and support that he needs to live in the community and participate in education and employment.
The NDIA submits that the pulse oximeter is more properly characterised as clinical in nature because it takes ongoing clinical measurements which may indicate the state of Mr Fear’s health and which is used to assist others to monitor and make choices about his treatment. It further submits that it plays a role in preventative health treatment insofar as it is designed to prevent any decline in Mr Fear’s condition and inform most appropriate treatment options. In this regard, it is submitted that falls within Rule 7.7(b)
Is the pulse oximeter most appropriately funded by the NDIS or more appropriately funded by the health system?
A support may serve more than one purpose or provide more than one kind of benefit. It may serve a clinical purpose at the same time as it allows a person to remain living at home. In determining whether it is most appropriately funded by the NDIS, the task is to consider what its primary purpose is. We accept the NDIA’s submission that the pulse oximeter has the primary purpose of assessing and regulating Mr Fear’s health condition, and may also appropriately be characterised as an aid or item of equipment that is associated with a medical procedure, being the clinical measurement of oxygen saturation in his blood.
The NDIA’s submission finds support in the statement in Ms Horman’s report that pulse oximetry is used “to assess the adequacy of oxygen levels for an individual to guide their care needs”. It also finds support in the fact that, without the equipment at home, Mr Fear would have to be in hospital where his oxygen levels could be monitored. In this way, it can be distinguished from supports such as his wheelchair which enables him to function and move around but without which he would not necessarily require hospitalisation.
It is relevant also to consider those items in the Operational Guideline which are identified as those more appropriately funded by other parties. They include the diagnosis and assessment of health conditions, and specifically include oxygen. In our view, the pulse oximeter is more in the nature of equipment for the diagnosis and assessment of Mr Fear’s health condition than for enabling him to undertake activities or participate in the community. The NDIA submits that, since oxygen is listed as an item that is generally not appropriately funded by the NDIS, it logically follows that a device used to measure oxygen saturation and to inform the decision to provide oxygen therapy falls into the category of clinical supports that are not appropriately funded by the NDIS. There is some force in that argument.
When considered in light of the nature and purpose of the NDIS, the objects of the Act and the principles underlying the provision of reasonable and necessary supports, we find that the pulse oximeter is closely related to Mr Fear’s health needs. It more closely meets the description of supports in the nature of diagnosis and clinical treatment of a health condition than those which enable activities of daily living or which are maintenance supports integrally linked to a person’s social or economic participation. Put very bluntly, it is helping to keep Mr Fear alive. The fact that it enables him to remain living at home does not change that, in our view, its principal purpose is to manage his health.
On balance, we are not satisfied that the pulse oximeter is most appropriately funded by the NDIS. We find it is more appropriately funded by the general health system.
Submissions regarding oral suctioning equipment
Parties’ submissions concerning the oral suctioning equipment are similar to those made in respect of the pulse oximeter.
For Mr Fear it is submitted that, in the same way that the pulse oximeter enables him to remain at home and, therefore, in the community, the bedside oral suctioning machine enables him to remain living in the community. It is submitted, and we accept, that he would otherwise be hospitalised. It is further submitted that the portable suctioning machine enables him to leave the home and join in activities with his family in the wider community. It is submitted that, like the pulse oximeter, it is not required to manage any health condition, rather to manage his disability.
The NDIA submits that the oral suctioning equipment is properly characterised as a clinical support. It is submitted that it has the “permanent purpose” of regulating or treating Mr Fear’s medical or health condition in that it serves the basic health functions of managing his saliva and preventing chest infections as a result of aspiration. It is submitted that it cannot properly be characterised as a support that enables him to undertake activities of daily living, or to live in the community as contemplated by Rule 7.4.
Is the oral suctioning equipment most appropriately funded by the NDIS or more appropriately funded by the health system?
We accept that the oral suctioning equipment fulfils a function that Mr Fear’s body is unable to do itself. In that sense, we accept that it has some similarities to the wheelchair which fulfils a function that his body cannot perform. However, the evidence from Dr Steinfort indicates that, in so doing, its essential purpose is to ensure that Mr Fear does not develop infections which would compromise his health.
We accept that the oral suctioning equipment enables Mr Fear to be cared for at home but that does not, in our view, change its essential nature and health-related purpose. The fact that he is monitored by Dr Steinfort tends to support this conclusion, as does the evidence that, without the oral suctioning, Mr Fear would almost certainly be hospitalised sooner or later.
We accept that the portable suctioning equipment is essential if Mr Fear is to participate in activities outside his home. We accept he cannot leave home without it. However, that does not change its essential nature and purpose.
When considered in light of the nature and purpose of the NDIS, the objects of the Act and the principles underlying the provision of reasonable and necessary supports, we find that the bedside and portable oral suctioning equipment are supports more closely related to the clinical treatment of Mr Fear’s health needs than to his independence and social or economic participation. Their principal purpose relates to managing his health and preventing illness rather than to supporting him to undertake activities that enable him to participate in the community. Put very bluntly again, they help to keep him alive. The fact that they enable him to remain living at home and to go out with his family and others does not change that, in our view, their principal purpose is to manage his health.
On balance, we are not satisfied that the bedside and portable oral suctioning equipment is most appropriately funded by the NDIS. We find it is more appropriately funded by the general health system.
Gaps in funding
In Young and National Disability Insurance Agency [2014] AATA 401 the Tribunal considered whether an oxygen concentrator and an insulin pump were clinical treatment for the purposes of the Rules. It decided that each had as its primary purpose the treatment of the applicant’s clearly identifiable health conditions and was more appropriately funded under the general health system. However, the evidence was that the health system did not presently fund either. The Tribunal said at [41]:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS. In our view, s 34(1)(f) reflects the statement of the Productivity Commission, which we have referred to above, that the purpose of the NDIS is not to respond to any shortfalls in mainstream services (nor does it purport to impose any obligations on another service system to fund or provide particular supports: cl 7.3 of sch 1).
We would make the same observation in this case. We would add that, although we have no expert medical evidence on this point, we have no reason to doubt the evidence of Ms Horman, Mrs Fear and Ms Pierce that, without these supports, Mr Fear would likely be hospitalised, and at greater cost to the community and his quality of life with his family. If the health system would fund these items for Mr Fear if he is hospitalised, it is difficult to see why the same equipment should not be funded when he is cared for at home under the supervision of his doctors.
Is there a present need for funding?
In Young (above), Mr Young already had one of the items of the equipment that he sought to have funded under the NDIS; he sought funding in order to replace it when the time came. The Tribunal said at [42] that it made no sense to say that he had a current need for funding under the NDIS but, in any event, it was more appropriately funded under the health system.
The NDIA submits that, as Mr Fear currently has both items of equipment, there is no current need for funding in any event. That is so but it has not formed part of our reasons for our decision.
Consumables and PEG tube feeding equipment
The NDIS is currently providing funding for the “consumables” for the pulse oximeter and the oral suctioning equipment. They comprise the probes for the pulse oximeter referred to above and the suction catheters for the oral suctioning equipment. It appears that, right up until the Tribunal hearing, the NDIA, and Mr and Mrs Fear, had different understandings about how long this funding would continue. The NDIA’s position now is that, if the Tribunal decides that either item of equipment is more appropriately funded by the health system, then the associated consumables should be as well. In the meantime, funding is to be provided for the life of Mr Fear’s current plan. As we are not called upon in this decision to determine whether funding for “consumables” should be provided under the NDIS, we need say no more other than that the NDIA’s position appears to make sense.
A further matter arose during the hearing which is that the NDIS is currently funding the equipment and consumables associated with Mr Fear’s PEG tube feeding. That raises an apparent anomaly in that the feeding equipment plays an essential part in maintaining Mr Fear’s life in much the same way that the equipment we are currently reviewing does.
The NDIA has advised that funding for PEG tube feeding was provided as a transitional measure in an attempt to ensure some level of consistency, at least in the interim, because of the different State funding regimes where the trial sites are located. The NDIA recognises that the decision to fund the feeding equipment and consumables is likely to be a departure from the provisions of the legislation and the Rules. We are not called upon to decide whether PEG tube feeding equipment is a reasonable and necessary support and need say no more other than that this appears to reflect the sorts of practical issues being faced especially in the early days of transition to the new scheme.
Conclusion
Mr and Mrs Fear say there is an element of unreality in attempting to separate aspects of their son’s care into those that are the responsibility of the NDIS from those that are the responsibility of the health system. We accept that is so, particularly where a participant’s needs are as complex as their son’s. There is no question that his need for this equipment is directly attributable to his acquired brain injury. We accept that, without them, he would have to be hospitalised. To that extent, they enable him to maximise his independence and remain at home with his family. However, for the reasons we have given we find that the pulse oximeter and the oral suctioning equipment are more appropriately funded by the health system than by the NDIS and we affirm the decision under review.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Member Regina Perton. ............................................
Associate
Dated 14 September 2015
Date(s) of hearing 1 September 2015 Representative for the Applicant Ajsela Siskovic, Victorian Legal Aid Representative for the Respondent Ms Shelley Landmark, NDIA
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