HHRQ and National Disability Insurance Agency

[2023] AATA 2430

HHRQ and National Disability Insurance Agency [2023] AATA 2430 (7 August 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/0757

Re:HHRQ

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J Collins 

Date:7 August 2023

Place:Brisbane

The decision under review is set aside and remitted to the Respondent (‘the Agency’) with the direction that the ‘statement of participant supports’ in the current plan dated 2 August 2023 include funding for the following as reasonable and necessary supports:

o15 hours per week of support at the 'Capacity Building Supports for Early Childhood Interventions – Other Professional' rate of $193.99/hour for early childhood intervention supports;

o4 hours per year of report writing at the 'Capacity Building Supports for Early Childhood Interventions – Other Professional' rate of $193.99/hour for early childhood intervention supports;

o26 hours per year of Level 2 Support Coordination at the applicable NDIS Price Guide rate;

o52 hours per year of occupational therapy to be included as a 'stated support' so that the funding cannot be used flexibly; and

o52 hours per year of speech therapy to be included as a 'stated support' so that the funding cannot be used flexibly.

·The date by which the Agency must reassess the HHRQ’s plan is to be twelve (12) months after the date of this decision.

·That all other supports in the HHRQ’s existing statement of participant supports, be replicated pro-rata from the date of this decision until the reassessment date.

...........................[SGD].............................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – Autism - ABA therapy - intensive feeding therapy - reasonable and necessary supports – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth) - decision set aside and remitted to the Respondent

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s2A, s33, s42D

National Disability Insurance Scheme Act 2013 (Cth) s34, s35, s103

National Disability Insurance Scheme (Supports for Participants) Rules 2019

Cases

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

G v Minister for Immigration and Border Protection [2018] FCA 1229

Mulligan v National Disability Insurance Agency [2015] FCA 544

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

National Disability Insurance Agency v WRMF [2020] FCAFC 79

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Secondary Materials

National Disability Operational Guidelines – Early childhood approach

National Guidelines for Best Practice in Early Childhood Intervention Early Years Learning Framework - Developmental Milestones 

REASONS FOR THE DECISION

1. HHRQ, a 3-year-old female, is a participant of the National Disability Insurance Scheme (‘the scheme’). She seeks an increase in her existing funding so that she can access the following supports:

   ·A higher level of early intervention supports; and 

   ·A program of intensive feeding therapy.

2. The issue before the Tribunal is whether these supports are ‘reasonable and necessary’ pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’) and therefore should be included in her participant’s plan made pursuant to the scheme.

   BACKGROUND

3. HHRQ became a participant in the scheme on 9 September 2021. A participant’s plan was subsequently approved for her which included the following capacity building supports:

   ·Improved Life Choices (CB Choice and Control) - $1,485.75

   ·Improved Daily Living (CB Daily Activity) - $24,927,72.[1]

   [1] Section 33(2) NDIS Act.

4. The purpose of HHRQ’s funding for ‘Improved Daily Living’ was stated to be for:

   ‘The provision of Early Childhood Intervention supports to work together within the home and community settings, utilising relevant disciplines within a key worker model (which may include psychology and/or physiotherapy rates as per the NDIS Support Catalogue) to support and advise the family in order to meet the participant’s plan goals. To include a progress report prior to plan review on outcomes against the NDIS plan goals and recommendations regarding the participant’s ongoing functional needs’.[2]

   [2] T-Documents, T1A; Section 103 NDIS Act.

5. HHRQ requested an internal review of that decision. In doing so she requested increased funding for the following supports:

   ·An intensive feeding program; and

   ·Occupational therapy and speech therapy.

6. The Agency however refused funding these supports and affirmed its original decision (’the decision under review’). Refusal was on the basis the Agency considered these supports did not represent value for money pursuant to section 34(1)(c) of the NDIS Act.[3] HHRQ subsequently applied to the Tribunal for a review of that decision.[4]

   [3] T-Documents, T1B.

   [4] T-Documents, T1.

7. In the context of these proceedings, and in order to ensure continued funding for HHRQ the Agency reconsidered HHRQ’s plan on 12 July 2022 and 11 October 2022.[5] On each occasion HHRQ’s plan was extended on a pro-rata basis with identical supports as detailed in [4].

   [5] AAT Act section 42D.

8. On 20 December 2022 the Agency approved a further plan with a review dated 21 July 2023 (an approximate seven-month period) which included the following capacity building supports:

   ·Improved Life Choices (CB Choice and Control) - $963.50;

   ·Improved Daily Living (CB Daily Activity) - $82,057.77 comprised of 423 hours (approximately 15 hours /week) at the Capacity Building Supports for Early Childhood Interventions - other Professional rate of $193.99/hour;

   ·Improved Health and Wellbeing (CB Health and Wellbeing) - $969.95 being funding for a nutrition plan consultation, assessment and report (hours) -plan managed; and

   ·Support Coordination - $1,401.96 comprised of 14 Hours of support coordination to support HHRQ to connect to, engage with and coordinate chosen service providers.[6]

   [6] Respondent’s closing submissions, dated 10 February 2023 [35].

9. On 2 August 2023 the Agency approved a further plan with a review dated 20 July 2024 (an approximate nineteen-month period) which included the following capacity building supports:

   ·Improved Life Choices (CB Choice and Control) - $2,606.85;

   ·Improved Daily Living (CB Daily Activity) - $222,016.00. Included in this category as a stated support is a component of $15,745.82 each for speech pathology and occupational therapy respectively;

   ·Improved Health and Wellbeing (CB Health and Wellbeing) - $2,624.30 being funding for a nutrition plan consultation, assessment and report (hours) - plan managed; and

   ·Support Coordination - $3,793.15[7] (‘the current plan’).

   [7] Respondent’s closing submissions, dated 10 February 2023 [35].

10. The effect of the current plan was to replicate the previous plan on a pro-rata basis and ensure that HHRQ continued with supports until determination of this application.

11. At the hearing HHRQ was not legally represented. Her Mother ‘M’ advocated on her       behalf with the assistance of Mr Bob Buckley, a representative of Autism Aspergers Advocacy Australia. The Agency was represented by Mr Sproule of Counsel instructed by Ashurst Lawyers.

    ISSUES

12. The Agency has conceded that the following supports are reasonable and necessary:

    ·52 hours/year of occupational therapy

    ·52 hours/year of occupational therapy

    ·26 hours/year of support coordination.

13. HHRQ seeks (through her parents), funding for the following supports:

    ·An Early Intensive Behaviour Intervention (‘EIBI’) program with Aspire Early Intervention (‘Aspire’). HHRQ relies on a recommendation and quotation by Ms Diane Verstappen, dated 4 July 2021. This recommendation relates to funding for 28 hours per week of EIBI for HHRQ, in the sum of $158,637.00 detailed as follows:

    o20 hours per week, over twelve months, for home and day care support from a behaviour technician at $87/hour over 48 weeks in a 12-month period;

    o8 hours per week of clinic-based support from a behavioural support practitioner at $193/hour or over 48 weeks in a 12-month period; and

    oAssessment/report writing as per NDIS requirements - totalling $158,637.00 (the ‘Aspire program’);[8] and

    ·An intensive feeding program provided by ‘Paediatric Feeding International’ (the ‘intensive feeding program’). HHRQ relies on a recommendation and quotation by Dr Tessa Taylor dated 2 November 2022 for the funding of a 4-week program in the sum of $78,660.00.[9]

    [8] T5.

    [9] T8; T9; A7, Dr Taylor reports dated November 2002 (12 Pages) and December 2022 (17 Pages).

14. HHRQ submits that these supports are ‘evidence based’, will address her autism[10] and feeding issues and are ‘reasonable and necessary’.[11]

    [10] Applicant’s Closing Submissions [43]; Transcript page 9 at lines 1-2.

    [11] Section 34 NDIS Act.

15. The Agency disagrees. Its position is that the following matters require determination:

    ·The number of hours of funding for early intervention supports that is ‘reasonable and necessary’; and

    ·Whether funding for intensive feeding therapy is a ‘reasonable and necessary support’.[12]

    16.The Agency submits that the decision under review should be varied to include the following supports in HHRQ’s plan:

    ·10 hours per week of support at the 'Capacity Building Supports for Early Childhood Interventions – Other Professional' rate of $193.99/hour for early childhood intervention supports;

    ·4 hours per year of report writing at the 'Capacity Building Supports for Early Childhood Interventions – Other Professional' rate of $193.99/hour for early childhood intervention supports;

    ·26 hours per year of Level 2 Support Coordination at the applicable NDIS Price Guide rate;

    ·52 hours per year of occupational therapy to be included as a 'stated support' so that the funding cannot be used flexibly; and

    ·52 hours per year of speech therapy to be included as a 'stated support' so that the funding cannot be used flexibly.[13]

    [12] Section 34 NDIS Act.

    [13] Respondent’s Closing Submissions at [303].

16. The Agency further submits that:

    ·Designation of the funds included in HHRQ’s plan for speech and occupational therapies as ‘Stated Supports’ is appropriate in order to prevent these funds from being used for other therapies;[14] and

    ·That a review date 12 months from the date of its decision is appropriate.

    [14] Ibid; Sections 33(3), 46(1) NDIS Act.

    THE NATIONAL DISABILITY INSURANCE ACT 2013 (CTH)

17. In respect of what constitutes a ‘reasonable and necessary’ support for the purposes of the NDIS Act, section 34 provides as follows:

    Reasonable and necessary supports

    (1)  For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (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 NationalDisability 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.

    (2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

18. Section 34(1) is cumulative and therefore all the criteria must be met.

19. The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle v National Disability Insurance Agency (McGarrigle), Mortimer J stated as follows:

    “Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[15]

    [15] [2017] FCA 308 at [19].

20. Section 35 of the Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the NDIS Rules’).

    OPERATIONAL GUIDELINES

21. The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[16] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However; in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[17] the Federal Court held that a Tribunal should take into account relevant government policy which are not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[18] where Mortimer J held:

    “Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …”[19]

    [16]  G v Minister for Home Affairs [2019] FCAFC 79 at [18].

    [17] [1979] AATA 179 (1979) 2 ALD 634.

    [18] [2018] FCA 1229.

    [19] Ibid, at [171].

22. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for HHRQ.

    EVIDENCE ABOUT HHRQ

23. The evidence overwhelmingly supports, and it is not disputed, that HHRQ has diagnoses of autism spectrum disorder - level 3 (ASD), global development delay and severe expressive and restrictive speech delay.[20]

    [20] Report of Dr Ken Maclean dated 10 November 2022; Report of Dr Helen Puusepp-Benazzouz dated 8 March 2022 and 9 September 2022; A11, Report of Dr Garg dated 20 September 2022.

24. HHRQ lives with her parents and her two brothers aged approximately 14 and 5 years respectively. Her father has a diagnosis of ASD - level 1 (mild) and her 5-year-old brother has a diagnosis of ASD - level 3.

25. In HHRQ’s plan, her parents refer to the following goals they would like HHRQ to achieve:

    ·increase her physical skills,

    ·increase her cognitive skills,

    ·increase her language and communication skills,

    ·increase her social skills, and

    ·increase her self-care skills.[21]

    [21] T1A.

26. M explained that at approximately 9 months of age she first became concerned in relation to HHRQ’s development. M referred to feeding difficulties, HHRQ’s refusal to permit any object coming near her mouth (such as a spoon or a toothbrush) and a delay in the ‘usual milestones’.[22] On or about this time M sought feeding services from Inner West Paediatrics.[23] M’s evidence was that Inner West Paediatrics provided only general hints and tips and that HHRQ made no meaningful gains with this service.[24] At the hearing no documentary evidence, or evidence otherwise, of HHRQ’s treatment, therapy or level of engagement with Inner West Paediatrics was provided for consideration by the Tribunal.

    [22] Transcript, page 63 lines 37-45.

    [23] A13(a); Applicant’s SFIC dated 13 December 2022 at [29].

    [24] A13(a) [29]; Transcript, page 76 lines 3-5.

27. HHRQ commenced speech therapy treatment at the Bankstown Community Health Centre in November 2020. Unfortunately, HHRQ made minimal progress and it was considered that HHRQ required support and assistance in all developmental domains. Accordingly, HHRQ was referred for formal developmental assessment and advised that she would benefit from accessing specialist Early Child Early Invention (ECEI) services. [25]

    [25] T4.

28. HHRQ was reviewed several times by Dr Nikam, a paediatrician. By May 2021, Dr Nikam had formed the view that HHRQ most likely had developmental delay. Dr Nikam recommended, as a priority, that HHRQ commence Early Intervention and make an application to the Agency for funding for speech and occupational therapy.[26]

    [26] T3.

29. On 4 July 2021 HHRQ had an ‘intake assessment’ at Aspire Early Intervention (‘Aspire’), undertaken by Ms Dianne Verstappen, Clinical Director of Aspire. Ms Verstappen recommended an initial ‘First Steps program’ with Aspire (the ‘First Steps program’). Following completion of the First Steps program, Ms Verstappen recommended an ‘Early Intensive Behaviour Intervention’ (‘EIBI’) program which was also provided by the Aspire program.[27]

    [27] T5.

30. On 28 October 2021 HHRQ was assessed by Kerry-Anne Sherson, Speech Pathologist. Ms Sherson’s assessment concluded that HHRQ had a language age equivalence of 5 months for her use of language. Ms Sherson recommended weekly 45-minute sessions of speech therapy.[28] HHRQ engaged in 12 speech pathology intervention sessions with Ms Kerry-Anne Thompson between October 2021 and June 2022 (that is, 12 sessions over 9 months).

    [28] T7.

31. In early November 2021 HHRQ was assessed at ‘Paediatric Feeding International’ by Dr Tessa Taylor. Dr Taylor provided a recommendation and quotation for the intensive feeding program, as referred to at [12].[29]

    [29] T;8 T9.

32. In January 2022 Dr Puusepp-Benazzouz, a paediatrician, assessed HHRQ. Her clinical opinion was that HHRQ required a substantial level of support (level 3) in terms of her social interaction, social communication difficulties and her restricted and repetitive interests, activities and behaviours. Dr Puusepp-Benazzouz supported the Aspire program and the intensive feeding program. She stated that HHRQ ‘needs intensive behavioural therapy through Aspire Early Intervention to improve her social skills and work on her sensory issues, play skills and repetitive behaviours’. Further, that HHRQ needs ‘urgent intensive feeding intervention by a specific feeding expert as soon as possible.’ [30]

    [30] A3; A9, letter of Dr Puusepp-Benazzouz dated 8 September 2022.

1. On 2 February 2022, Ana Romero Dodds, occupational therapist assessed HHRQ. Ms Romero Dodds’ recommendation included the following:

2. Ongoing weekly 45-minute Occupational Therapy intervention to support sensory processing, social/play, cognition, gross and fine motor skill development for improved participation in everyday tasks.

3. Funding to access a Paediatric Feeding Therapist with specific expertise in delivering specialised feeding programs such as the SOS Approach to Feeding to target sensory processing difficulties and support feeding behaviours.[31]

   [31] A11.

4. In September 2022, Dr Pankaj Garg, another paediatrician, undertook a developmental assessment of HHRQ. Dr Garg recommended speech therapy, occupational therapy and 15–20 hours per week of Applied Behaviour Analysis therapy (‘ABA therapy’).[32]

   [32] A11, Report of Dr Garg dated 20 September 2022.

5. Prior to the hearing HHRQ had completed the First Steps program with Aspire. Funding for the First Steps program occurred through the redirection of funds allocated in HHRQ’s plan[33] at the compromise of speech therapy and other interventions such as occupational therapy.

   [33]  Evidence Bundle Index No. 18, Report of Dr Ken Maclean dated 10 November 2022.

6. At the time of the hearing HHRQ was attending Cub-Bee House Early Learning Centre for 4 days per week (Monday to Thursday) and spending Fridays at home with her mother.

7. M’s opinion is that the First Steps program was beneficial to HHRQ and delivered significant positive outcomes.[34] In her oral evidence M explained her ongoing significant concerns in respect to HHRQ’s lack of engagement and motivation.

   [34] Transcript page 87 line 43 - page 88, line 19.

8. M’s opinion is that early intervention will provide the best long-term outcomes for HHRQ and the ‘best chance’ for HHRQ to ‘have a different life trajectory …. not reliant on NDIS’.[35]

   [35] Transcript page 60 lines 10-11.

   PUBLISHED AND REFERRED LITERATURE

9. The hearing of this matter included the tender of a significant amount of published literature and research review material[36] in respect of early interventions (‘EI’) for children with ASD. I have considered all of this material and accordingly I refer chronologically to what I consider as the relevant material.

   [36] Rule 3.2(a) NDIS Rules.

10. In 2006 a booklet publication titled ‘Early Intervention for Children with Autism Spectrum Disorders: Guidelines for Best Practice’ was authored by Jacqueline Roberts (‘Roberts’) and Margot Prior (‘Prior’), (‘Roberts & Prior - 2006’).[37] This booklet was associated with a report prepared by Roberts and Prior which related to a review to identify the most effective models of practice in early intervention of children with autism spectrum disorders.[38] Relevant to this decision, Roberts & Prior - 2006 provided the following information:

    ‘To be successful EI needs to be extensive and intensive. A minimum of 20 hours a week over two or more years is essential for young children to make major gains’.[39]

    [37] A10, page 12

    [38] A10, page 25.

    [39] A10, page 15.

11. In 2009 The National Autism Centre initiated ‘phase one’ of a National Standards Project to address the need for evidence-based practice guidelines for children with ASD (‘NAC-2009’).[40] One of the primary purposes of NAC-2009 was to ‘to identify the level of research support currently available for a range of educational and behavioral interventions’.[41]

    [40] A11, page 684.

    [41] A10, page 618.

12. NAC-2009 classified interventions into specific categories which included established treatments, emerging treatments, unestablished treatments and ineffective/harmful treatments. It concluded that comprehensive behavioural treatment (also referred to as Applied Behaviour Analysis (ABA)) was an ‘established treatment’ insofar as there being compelling scientific evidence to show that this treatment demonstrated favourable outcomes for children with ASD. Whilst NAC-2009 identified ABA therapy as an established treatment for children with ASD it did not however identify or determine ‘the level of intensity required for delivery of these interventions’. In this regard, and in particular, NAC-2009 stated that ‘the next version of the National Standards Project may provide further analysis in this area’.[42]

    [42] A10, page 646.

13. In 2011 a publication titled ‘A Review of the Research to Identify the Most Effective Models of Practice in Early Intervention for Children with Autism Spectrum Disorders’ by Prior and Roberts (‘Prior & Roberts - 2011’)[43] reviewed the research available as at that time, to identify the most effective models of practice in early intervention for children with ASD. Included in the findings of Prior & Roberts - 2011 was the statement that:

    ‘Behaviourally based interventions, and specifically those that are intensive (often referred to as Applied Behaviour Analysis (ABA) or early intensive behavioural interventions (EIBI), continue to indicate some positive outcomes for some children in a range of areas including cognitive skills, communication and adaptive behaviour’.[44]

    [43] A10, page 25.

    [44] A10, page 193.

14. In 2012 a subsequent booklet publication titled ‘Early Intervention for Children with Autism Spectrum Disorders; Guidelines for Good Practice 2012’ by Prior and Roberts (‘Prior & Roberts - 2012’)[45] provided as follows:

    ‘The amount of intervention is usually described as number of hours of treatment per week. Fifteen to twenty-five hours per week is generally recommended for autism early intervention in research literature (Roberts and Prior 2006) with some programs recommending as much as 40 hours per week.

    [45] A10, page 341.

15. Prior & Roberts - 2012 however was careful to identify that the quality of an intervention was just as important the quantity. Further that:

    ‘…no one program will suit all children with autism and their families. There are benefits from early, intensive, family-based treatment programs, so long as these are adapted to the child’s pattern of strengths and weaknesses and take into account of family circumstances.’

16. In 2015 the National Autism Centre, initiated ‘phase two’ of the National Standards Project (‘NAC-2015’). The primary goal of NAC-2015 was to identify interventions that had been demonstrated to be effective for individuals with ASD.[46] NAC-2015 identified the following three categories of interventions; ‘established interventions’, ‘emerging interventions’ and ‘unestablished interventions’. NAC-2015 referred to an ‘established intervention’ as a category where ‘sufficient evidence is available to confidently determine that an intervention produces favourable outcomes for individuals on the autism spectrum. That is, these interventions are established as effective’.[47]

    [46] A10, page 687

    [47] A10, page 708.

17. NAC–2015 identified ‘Comprehensive Behavioural Treatment for Young Children’ (‘CBTYC’) as an ‘established intervention’ and described CBTYC programs to ‘involve intensive early behavioural interventions that target a range of essential skills which defined or are associated with autism spectrum disorder ……… These interventions are often described as ABA (or applied behaviour analysis), EIBI (or early Intensive behavioral intervention) or behavioral inclusive programs.’ NAC-2015 also provided that CBTYC was an:

    ‘Intensive service delivery (typically 25-40 hours per week for 2-3 years) based on the principles of applied behaviour analysis (ABA)’.[48]

    [48] A10, page 721.

18. In 2016 a publication titled ‘Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to pre-school children, their families and carers’ by Roberts and Katrina Williams  (‘Roberts & Williams - 2016’) was prepared for the Agency ‘to assist with making decisions about the delivery of services to preschool children with autism, and their families and other carers’.[49] Roberts & Williams 2016 sought to identify evidence-based and evidence–informed good practice for supports provided to children with autism and their families and carers.  Roberts & Williams - 2016 provided the following findings:

    [49] A10, page 366.

19. Supports for children with autism should be evidence‐based and delivered using a family-centered approach that incorporates individual planning;

20. The specific early intervention program chosen should take into account family preferences and capacity and each child’s strengths and difficulties, age and stage of development;

21. The aims of support for the child with autism are to improve social communication and minimise behaviours that challenge to enhance learning and participation;

    ·Early intervention or support should start as soon as a diagnosis is made and the family are ready;

    ·Having well‐trained professionals working as teams to support children with autism and their families is needed. Parent or peer training is promoted, as long as it is incorporated to take into account a family‐centred approach;

    ·Intervention programs for children with autism should be comprehensive, that is, across all domains of learning with clearly stated replicable process and content;

    ·Early intervention programs for children with autism must be of sufficient intensity and fidelity (i.e. implemented consistently and accurately), and be evaluated to ensure program quality; and

    ·Children who have received a diagnosis of autism should receive 20 hours per week of early intervention that involves interaction with them. In relation to this level of support;

    ostaff-to-child ratios can vary between 1:1 and 1:3 as determined by the child’s individual program,

    oall staff are autism-trained (training and qualifications will vary),

    oprograms must involve allied health professionals in individual planning, program implementation and review,

    othe support is sufficiently flexible that it can be adapted and modified in line with the child and parents’ strengths and needs.

22. Notably, the recommendation of 20 hours per week of early intervention in Roberts & Williams 2016 was based on a ‘midpoint’ evaluation of the programs that were evaluated, which indicated that between 15 and 25 hours per week was most commonly effective.

23. In 2020 Autism CRC published a research report titled ‘Interventions for children on the autism spectrum: - A synthesis of research evidence’ (‘Autism CRC - 2020’).[50]  Notably, Roberts co-authored this research report. Autism CRC – 2020 reviewed the scientific evidence for the therapeutic (and other) effects of interventions for children on the autism spectrum. The findings included the following:

    [50] R10.

24. Minimal information was reported on the influence of the amount of intervention (e.g., total hours) on intervention effects;

25. Within the behavioural intervention category, there was evidence that a greater amount of intervention related to greater intervention effects. However, this effect on child outcomes varied between systematic reviews, and null effects were also reported;

26. Intervention amount did not influence the effect of interventions targeting social-communication and communication outcomes; and

27. No evidence was reported on the amount of intervention that may maximise effects on child and family outcomes for any intervention category (Tribunal emphasis added). [51]

    [51] R10. pages 13 - 14

28. In 2021, a Rogers et al research report titled ’A Multisite Randomized Controlled Trial Comparing the Effects of Intervention Intensity and Intervention Style on Outcomes for Young Children with Autism’ (‘Rogers – 2021’)[52] tested the effect of two levels of treatment intensity (by reference to the number of hours) and two treatment ‘styles’ on the progress of your children with autism.  The findings of Rogers - 2021 concluded:

    ‘Neither treatment style nor intensity had overall effects on child outcomes in the 4 domains examined. Initial severity did not predict better response to 1 intervention style than to another. We found very limited evidence that initial severity predicted better response to 25 vs 15 hours per week of intervention in the domains studied.’

    [52] R7, page 2063.

29. In 2021 a report by David Trembath et al, titled ‘An evidence-based framework for determining optimal amount of intervention for autistic children’ (‘Trembath - 2021’) considered the optimal amount of non-pharmaceutical interventions for children aged up to 12 years with ASD. This included an investigation of the association between the intervention amount and the effects on outcomes. Relevantly, Trembath - 2021 states:

    ‘These findings highlight a limited and fragmented evidence base linking intervention amount and intervention effects for autistic children. The insufficient evidence exacerbates the already complex challenge of making clinical recommendations for children who differ greatly in their individual learning profiles’.[53]

    [53] R7, page 2180.

30. In 2022 the Lancet Commission on the future of care and clinical research in autism by Lord et al 2022 stated as follows:

    ‘If evidence-based approaches to support the lives of autistic children, adolescents, and adults who are living now are to be developed (in contrast to the fervent hopes for neurobiological approaches in the future), knowing what works for whom, when, and at what intensity is imperative, and will allow the design of systems that are cost-effective, affordable, and scalable across the globe. Such approaches are not possible on the basis of the currently existing data, but, might become possible in the future.

    …………….

    Intensity and duration

    Knowledge about how much and for how long a given intervention should be delivered is scarce, and few systematic comparisons have been done to date. A recent study by Rogers and colleagues, done across three different sites, compared two types of intervention (applied behaviour analysis and Early Start Denver Model) at two different, relatively high intensities (12 h per week vs 20 h per week) for 2-year-olds with autism. There was no difference in outcome according to either treatment type or treatment intensity on autism manifestations, although greater improvement was found at one of the three sites with greater intensity. This finding is a start; the next step would be to determine if regular, relatively intense, face-to-face interventions of this kind have effects different from those of typical clinic visits or low-intensity, parent-mediated interventions that occur even less frequently’[54] (Tribunal emphasis added).

    2022AUTISM CRC DRAFT GUIDELINES

    [54] R9(b), page 19 and page 51 .

31. In July 2022 Autism CRC issued the “National guidelines for supporting the learning, participation, and wellbeing of autistic children and their families in Australia (Draft Guideline for public consultation) (‘2022 Autism CRC draft guidelines’)’.[55] The 2022 Autism CRC draft guidelines were developed within an evidence-based practice framework and were informed by the best available research evidence, evidence from clinical practice and the preferences and priorities of children and their families.

    [55] R7, page 389.

32. The objective of the 2022 Autism CRC draft guidelines was to provide practitioners with an evidence-based practice framework facilitating the safe and effective provision of support to children aged 12 years or younger with ASD.[56] 84 recommendations were made and relevant to this decision was ‘Recommendation 56’, which provided as follows:

    ‘Practitioners should deliver supports in an amount and duration that is likely to lead to the most meaningful and sustained increase in the child’s learning, participation, and wellbeing.

    Good Practice Points

    56.1 The amount and duration of support provision should be tailored to the individual needs of the child and family. The includes consideration of the frequency, length and time of day of support sessions, and variations in support needs over time.

    56.2 Practitioners should inform parents that there is no set number of hours per week of practitioner delivered supports that leads to the best outcomes for all children.

    56.3 Practitioners should be aware that research evidence does not support the concept that supports delivered in greater amounts consistently leads to better child and family outcomes.(Tribunal emphasis added).’

NDIS OPERATIONAL GUIDELINES – Early childhood approach (‘NDIS guidelines’)

[56] R7, page 416. 

1. Relevant to this decision the NDIS Guidelines[57] state that children and their families will benefit the most from early intervention when:

   ‘Early childhood professionals have qualifications and experience in early childhood development, and offer services based on sound evidence and research’ (Tribunal emphasis added).

EARLY CHILDHOOD INTERVENTION GUIDELINES (‘ECIA Guidelines’)

[57] R7, page 185.

1. The ECIA Guidelines[58] were developed in 2015 by Early Childhood Intervention Australia as a guide for best practice in childhood early intervention. Their purpose was to establish a framework for universal and equitable high-quality early child interventions, based on best practice for children with disability and/or developmental delay, irrespective of whether they attend government, non-government, large, small, sole non-for-profit service providers or private providers, anywhere in Australia.

   [58] R7, page 347.

2. The ECIA guidelines identify a number of ‘key practices’ in early childhood intervention, one of which is ‘Evidence-Based Practice’. Relevant to this decision the ECIA guidelines provide as follows:

   Evidence-Based Practice

   ‘Evidence-based practice is a decision-making process that integrates the best available research evidence with family and professional wisdom’ (Buysse and Wesley, 2006). In other words, evidence-based practice involves a balance of empirically supported interventions, clinical expertise or practice wisdom, and client or family values, preferences and circumstances (CCCH, 2014).

   To ensure that they are working from a base of evidence informed by the latest research and practice, ECI practitioners should maintain knowledge and skills through lifelong continuing professional development. ECI also requires ongoing review and monitoring to ensure that practices are achieving the desired outcomes.

   ECI practitioners become more effective through critical reflection and a strong culture of professional enquiry (DEECD, 2011). Ongoing self-reflection, self-assessment and monitoring of practices are at the centre of the proposed development of practice standards.’[59]

   [59] R7, page 364.

   EVIDENCE OF DR MICHEAL SANDBANK

3. Dr Micheal Sandbank is an Assistant Professor, at the Department of Occupational Science & Occupational Therapy, School of Medicine at the University of North Carolina in the USA. Two reports by Dr Sandbank were tendered on behalf of the Agency for consideration by the Tribunal.[60]

   [60]  R7, page 1833; R9(b).

4. In 2017 Dr Sandbank led the research investigation ‘Project AIM’ (Autism Intervention Meta-analysis). Project AIM involved a comprehensive meta-analysis of all available ‘studies’ in respect of children (up to age 8) with ASD and tested the effect of non-pharmacological interventions on any outcome for these children.

5. Project AIM was selected as one of the Top 20 Advances in Autism Research in 2020 by the Interagency Autism Coordinating Committee of the US Department of Health & Human Services.

6. In November 2021, Project AIM updated its investigation by identifying and analysing any further ‘studies’ undertaken subsequent to 2017.

7. As the lead researcher of Project AIM Dr Sandbank has read and analysed the full set of available experimental or quasi-experimental group studies in respect of early non-pharmacological interventions for children with ASD, published before November 2021. In addition, and prior to providing her report to the Tribunal, Dr Sandbank conducted a further search for any relevant studies published after November 2021 and prior to the hearing.

8. The purpose of meta-analyses is to provide a quantitative summary of the entire set of the available research studies on interventions for children with ASD. This includes providing an estimation on whether an intervention is effective for improving an outcome for a child with ASD, and also how effective the intervention actually is.[61]

   [61] R7, page 1843 paragraph 22.

1. Dr Sandbank’s evidence was informative and persuasive. At time of the hearing Dr Sandbank had read and analysed all available experimental or quasi-experimental group studies in respect of early interventions for children with ASD. This amount represented a total of approximately 289 studies, and included all studies tendered for consideration by the Tribunal. Dr Sandbank referred to a wide variety of methodological approaches by researchers over the years in their efforts to determine what interventions are of most benefit to children with ASD. In doing so, Dr Sandbank identified substantial flaws in the methodology of many of these studies, thereby limiting confidence in the respective findings.

2. Dr Sandbank explained that quasi-experimental design studies (‘QEDs’) provide ‘unreliable estimates’ for a number of reasons. These reasons include selection bias and the limited sample size of participants. By comparison, Randomised Controlled Trials (‘RCTs’) are considered by the medical and scientific community as the ‘gold standard method for establishing evidence of intervention effectiveness’ for children with ASD.[62]

   [62] R7, page 1839 paragraph 14.

3. Dr Sandbank identified Rogers - 2021 as the most recent and relevant RCT in respect of EIBI and the particular question as to whether increasing intervention intensity offered an increased benefit for a child with ASD.[63]

   [63] R7, MS 19.

4. Dr Sandbank referred to Rogers - 2021 as ‘a high-quality study designed to reliably test questions about the relative effectiveness of competing intervention approaches at different intensities.’[64] Dr Sandbank explained that Rogers - 2021 compared both Naturalistic Developmental Behavioural Interventions (‘NDBI’) and EIBI, at levels of 15 and 25 hours per week and made the following findings:

   ·Both types of interventions (NDBI and EIBI) exhibited significant gains over two years on all measured outcomes.

   ·The developmental progress for the children was similar regardless of whether they received NDBI or EIBI and regardless of whether they received 15 or 25 hours support per week.

   ·Children with initially higher cognitive scores and lower autism symptomology benefited more from higher intensity interventions, but this improvement was only in relation to their autism-related symptoms and spontaneous communication.  It was not in relation to their language or their non-verbal cognitive or adaptive ability.

   ·Children with more significant cognitive and autism-related challenges exhibited similar developmental progress regardless of whether they received 15 or 25 hours per week of intervention[65] (Tribunal emphasis added).

   [64] R7, page 1841 paragraph 18.

   [65] R7, page 1842 paragraph 19.

5. Dr Sandbank identified Rogers - 2021 as being selected as one of the Top 20 Advances in Autism Research by the IACC of the U.S. Department of Health & Human Services. She summarised the findings of Rogers - 2021 as follows:

   ‘The results indicated that, although all groups of participants exhibited significant gains over 2 years on all measured outcomes, there was no effect of either intervention approach or intensity. In other words, children exhibited markedly similar developmental progress over the course of the study, regardless of whether they received NDBI or EIBI supports, and regardless of whether they received those supports for 15 or 25 hours per week’.[66]

   [66] R7, page 1841 paragraph 18.

6. Relevant to this decision, when asked specifically her opinion on whether ‘20+ hours per week of early childhood intervention supports for children with ASD is more effective than less intensive supports (for example 5 to 15 hours per week)’ Dr Sandbank stated:

   ‘It is my opinion that, when considered in total, the available clinical research is

   mixed in both quality and conclusions, and does not satisfactorily establish that

   more intensive supports are unilaterally more effective than less intensive

   supports. Specifically, it does not establish that 20+ hours per week of early

   childhood intervention is unilaterally more effective than less intensive supports,

   such as 5 and 15 hours per week….’[67]

   [67] R7, page 1834 paragraph 4.

7. Dr Sandbank identifies that her opinion broadly aligns with the recommendations contained in the 2022 Autism CRC draft guidelines as referred to at [53].

8. In her second report. Dr Sandbank was requested to specifically consider Roberts & Prior - 2006, Prior & Roberts - 2011, Prior & Roberts - 2012, Larsson 2013, Roberts & Williams - 2016 and various other publications.[68] Following review, Dr Sandbank’s opinion remained unchanged for the following three reasons; these reviews were either subject to design flaws, related to research which was impertinent to the question of intensity of intervention and likely outcome, or they were dated.[69]

   [68] R9(b).

   [69] R9(b). page 3 paragraph 4.

9. In relation to the reviews considered ‘dated’ Dr Sandbank stated;

   ‘Many of these evidence reviews were of reasonably good quality and their conclusions were consistent with the evidence available at the time’, notwithstanding, ‘the pace of publication and discovery in early childhood autism intervention science is such that these reviews now describe only a fraction of available research’.[70]

   [70] R9(b), pages 4-5 paragraph 9.

10. Relevantly, Dr Sandbank drew the Tribunal’s attention to the following:

    ·Her opinion was informed by some 289 reports;

    ·Only 17 of these 289 reports had been published as of 2006,

    ·Only 73 of these 289 reports had been published as of 2012, and

    ·Roberts & Williams – 2016 was a ‘review of reviews’ and was informed by studies published during or before 2012.[71]    

    [71] Ibid.

11. Dr Sandbank referenced her opinion to the Autism CRC - 2020[72] report which reported there to be no evidence on the specific amount of intervention that may maximise the effect on the outcomes for a child or their family.[73] Also to the Trembath - 2021 report[74] which highlighted ‘a limited and fragmented evidence base linking intervention dosage and intervention effects’.

    [72] Referred to by Dr Sandbank as Autism CRC 2021,

    [73] R7, paragraph 29. R10, page 14.

    [74] Ibid.

    Evidence of Ms Dianne Verstappen

12. Ms Verstappen, is the founder and Clinical Director of ‘Aspire’.[75] On 4 July 2021, she assessed HHRQ at her home in the presence of her parents. At that time, Ms Verstappen considered that HHRQ presented with significant global developmental delay and a skill set developmental level of 6-10 months, despite a chronological age of 18 months.[76] She described HHRQ as having ‘significant impairment’.[77]

    [75] Transcript page 155 lines 11-13.

    [76] T5.

    [77] Transcript page 163 line 46.

13. In explaining to HHRQ’s parents the intervention program offered by Aspire, Ms Verstappen’s report referred to Applied Behaviour Analysis Therapy (‘ABA Therapy’) as follows: 

    ‘………a discipline concerned with the application of behavioural science in real world settings such as clinics, schools, and industry with the aim of improving socially important issues such as behaviour problems and learning…’[78]

    [78] T5.

14. Ms Verstappen referred to the categorisation of ABA interventions as either ‘Comprehensive ABA’ or ‘Focused ABA’ which she explained as follows:

    ·Comprehensive ABA interventions are aimed at producing changes in specific skills that impact global measures of functioning including IQ, adaptive skills and social functioning in children with autism.

    ·Focused ABA interventions are generally more time-limited in nature because they are designed to address specific behaviour deceleration concerns including aggression, self-injury, disruptive behaviour, pica and other challenging behaviours.[79]

    [79] T5.

15. Ms Verstappen explained that when Comprehensive ABA Interventions are utilised with younger children they are often referred to as ‘Early Intensive Behaviour Interventions’ (‘EIBI’).

16. In support of her recommendation for 28 hours per week of EIBI with Aspire, Ms Verstappen referenced research, meta-analysis, systemic evaluation reviews and references by various professional organisations and governments (including internationally) in relation to the merits of ABA.[80] Ms Verstappen stated:

    ‘Several research studies have demonstrated that centre-based comprehensive ABA interventions are highly effective in improving IQ adaptive skills, and social functioning when programming is delivered 25-40 hours per week’.[81]

    [80] T5.

    [81] T5.

17. In oral evidence Ms Verstappen referred to her experience of 30 years working with children and also managing a clinic for children, predominately with autism for the past 16 years. Ms Verstappen’s professional qualifications include Bachelor of Education, Bachelor of Physiotherapy, Masters of Linguistics and Board Certified Behaviour Analyst (BCBA).[82]

    [82] Transcript page 137 lines 37–44.

18. Ms Verstappen gave evidence that HHRQ’s presentation related to deficits in her level of motivation and limited engagement with others, including her parents.[83] She considered that HHRQ’s biggest barrier to learning new skills was her motivation.[84] She explained that the decision as to the intensity of a program for a child was ‘[tied] in with motivation’.[85] If limited motivation is identified at an intake meeting then generally the recommendation is for more hours.

    [83] Transcript page 141 lines 1–9.

    [84] Transcript page 152 line 33.

    [85] Transcript page 145 line 30-31.

19. Ms Verstappen’s recommendation for the Aspire program for HHRQ relied upon Roberts & Prior - 2006 as a ‘guideline’[86] together with her ‘clinical experience’. She stated;

    ‘So the research suggests that the more intensive intervention, the more early the intervention occurs, the better it is for long term outcomes’.[87]

    [86] Transcript page 148 lines 26-27.

    [87] Transcript page 148 line 29-30.

20. When clarification was sought under cross examination, Ms Verstappen confirmed that an intensive intervention ‘is no less than 20 hours per week’.[88] To further support her recommendation Ms Verstappen referred also to Roberts & Williams - 2016 which she identified a recommended 15 to 25 hours per week of autism-specific intervention.[89]

    [88] Transcript page 170 line 29.

    [89] Transcript page 149 lines 23-24.

21. Ms Verstappen conceded in cross-examination that her recommendation did not reference any research literature subsequent to Roberts - Williams 2016.[90] She acknowledged that she was ‘probably aware’ of research after 2016, however that she had not updated her ‘template’ at the time of providing her recommendation to HHRQ’s parents. Ms Verstappen further acknowledged that at the time of providing her recommendation to HHRQ parents she was aware of the Autism CRC – 2020 report but not aware of the research by Dr Sandbank.

    [90] Transcript page 159 lines 4–5.

22. In cross-examination it was put to Ms Verstappen that the research by Dr Sandbank provided findings which did not support her argument in respect of the intensity of EIBI recommended by her for HHRQ. Ms Verstappen stated ‘you can suggest that. I am not sure.’

23. Ms Verstappen indicated that subsequent to providing her recommendation to HHRQ’s parents she had read Autism CRC - 2020. She also indicated that she was now aware of Dr Sandbank’s meta-analysis although that she had not read it in depth.[91]

    [91] Transcript page 159 lines 25–38.

24. Ms Verstappen explained that the object of the Aspire program would be to increase HHRQ’s motivation so that she could ‘learn’. She maintained there to be more ‘carry over’ between therapy sessions when they were undertaken on 5 or 6 days per week and referred to the likelihood of a ‘gap’ or a ‘reversion’ when therapy sessions were more spaced out.

25. When an intensity of 12 hours per week of EIBI for HHRQ was suggested to Ms Verstappen, her opinion was that this intensity was not sufficient to enable HHRQ to  acquire the skills that are required to lead an independent life or as independent as possible.[92] She stated that ‘anything less than 28 hours a week would not give HHRQ the best opportunity…’[93] Ms Verstappen’s evidence was that the Aspire program of the intensity proposed by her recommendation would ‘unequivocally’ change the life trajectory for HHRQ.[94]

    [92] Transcript page 152 line 35.

    [93] Transcript page 164 lines 18-19.

    [94] Transcript page 154 line 17–19.

26. Ms Verstappen identified HHRQ’s progress to date. This included her engagement with the picture exchange communication system (‘PECS’) and the fact that HHRQ will now ‘look’ at Ms Verstappen when she walks into a room.[95] Notwithstanding, Ms Verstappen described the progress made with HHRQ as being limited in the absence of ‘day to day carry over’ with therapy.[96]

    [95] Transcript page 154 lines 1–8.

    [96] Transcript page 154 lines 4–5.

27. Ms Verstappen explained that the process of providing a recommendation to the Agency required the nomination a specific number of hours. Her nomination of number of hours was based on an ‘informed guess’ made at the intake assessment meeting and also having regard to her clinical experience and knowledge.[97]  Ms Verstappen stated:

    ‘So, but it is an informed guess, you – you are correct. Because we do – we never know how children are going to respond consistently within the context of the environment. Some children make progress really rapidly, and some children make steady but slow progress based on the severity of the impairment’.[98]

    [97] Transcript page 161 lines 16-17.

    [98] Transcript page 161 lines 21–26.

28. In addition to clinical considerations, Ms Verstappen’s recommendation also took into account ‘the context of the family, and the likelihood of funding’.[99]

    [99] Transcript page 163 lines 10-13.

29. Ms Verstappen accepted that she was aware it was unlikely that the Agency would fund 28 hours per week for HHRQ, notwithstanding her clinical indication remained at 28 hours per week.[100] This recommendation is comprised of 20 hours of behaviour therapy, provided by a behaviour technician (‘BT’) and 8 hours of therapeutic support and clinical supervision, provided by a behaviour support practitioner (‘BCBA’).[101] The role of the BT being to work with HHRQ and implement particular programs or protocols that would be designed by the BCBA. The role of the BCBA being to provide training and education to the HHRQ’s family or other caregivers[102] and provide them with the ‘tools’ to implement basic procedures into the future.[103]

    [100] Transcript page 164 lines 30-35.

    [101] Transcript page 164 lines 39-43.

    [102] Transcript page 165 lines 8-17.

    [103] Transcript page 192 lines 25-32.

30. Ms Verstappen stated that Aspire offered programs of varying intensity of either 15, 18, 20, 22 or 28 hours per week. Aspire does not provide a program for less than 12 hours.[104] Generally an intensive program is considered to be 20 hours per week.[105]

    [104] Transcript page 170 lines 44-46.

    [105]Transcript page 171 line 1.

31. Ms Verstappen rejected the Agency’s contention of there being no clinical justification for the 28 hour per week Aspire program and did not withdraw or reduce her recommendation. She maintained her recommendation was appropriate and was based on her experience and the progress that HHRQ had made to date.[106] Her opinion was that fewer hours of therapy could result in a loss of skills or an increase in behavioural barriers, and that increased therapeutic support resulted in an increase in the acquisition of skills.[107]

    [106] Transcript page 172 line 46 – page 173 line 3.

    [107] Transcript page 192 lines 1-4.

    Evidence of Dr Kenneth Maclean

32. Dr Maclean is a paediatrician and a geneticist with approximately 20 years clinical experience. His experience includes children with neuro-developmental disabilities, ASD, intellectual disability, language disorders and feeding disorders.[108]

    [108] Transcript page 200 lines 3-8.

33. Dr Maclean assessed HHRQ on 8 September 2022 at the family home. He provided several reports[109] and gave oral evidence at the hearing. In addition to providing a clinical assessment of HHRQ, Dr Maclean provided an opinion on various research literature (including the research literature referred to in this decision) in relation to the effectiveness of EIBI at different intensities. In doing so, Dr MacLean emphasised that as a clinician he was strongly influenced by an evidenced-based approach to research. He explained that high-quality evidence ensured that the therapies that are likely to assist an individual child are in fact being considered.[110]

    [109] R2(c) and (d); R5(c) and (d).

    [110] Transcript page 208 lines 8–11.

34. Dr MacLean agreed with HHRQ’s diagnoses of ASD - Level 3, global development disorder and severe language delays. He referred to HHRQ as having a composite diagnosis of ‘a neurodevelopmental disorder’ or ‘complex neurodevelopmental disorder’.[111] His opinion is that any child affected by a significant developmental delay should have access to evidence-based family-centred early intervention with trained therapists. Further, that the intervention should be individualised and funded in order to maximize the developmental outcome for the child and their family.[112]

    [111] Transcript page 201 lines 2-4.

    [112] R2(c), page 26.

35. Dr Maclean considers that ABA is an accepted EIBI therapy endorsed by US and Australian guidelines.[113] His opinion is that behavior intervention is indicated for HHRQ together with speech therapy and occupational therapy. Also, that HHRQ’s clinical response supports behavioural therapy intervention on an ‘individual basis’.[114]

    [113] R2(c), page 33.

    [114] Ibid.

36. Dr Maclean demonstrated in his evidence a detailed knowledge of the findings of relevant research literature over the years including included Roberts & Prior - 2006, Prior & Roberts - 2011, Roberts & Williams - 2016.[115] He confirmed that whilst he was strongly guided by these reports, he has since been informed by more recent analyses.[116]

    [115] R8(i).

    [116] Transcript page 216 lines 8-10.

37. Dr Maclean described Williams & Roberts - 2016 as the seminal guiding paper for the management of ASD nationally. He stated that Williams & Roberts - 2016 highlighted the need for early intervention programs for children with ASD to be of ‘sufficient intensity and fidelity to ensure program quality’, notwithstanding he identified that ‘the quality of an intervention is just as important as the quantity of the intervention’.[117]

    [117] R2(c), pages 26-27, also referring to Prior & Roberts 2012

38. Dr Maclean explained that Williams & Roberts 2016 also recommended that the level of intensity of intervention should take into account a range of characteristics of the child and their family. These characteristics included the severity of ASD, presence of an intellectual disability or developmental disorder, the needs of any other siblings and the personal capacity and preference of parents. Furthermore, that children with a greater baseline cognitive skill and high adaptive behaviour scores at baseline will have better outcomes from early intervention.[118]

    [118] R2(c), page 30.

39. Dr Maclean described the question of the frequency and intensity of interventions as ‘challenging’ and that cost-effectiveness, predictors of outcome and high-quality studies are directly relevant to the question of the number of hours per week.[119]

    [119] R2(c), page 33.

40. In acknowledging the findings of more recent research, Dr Maclean referred also to the literature of Dr Sandbank which identified a number of emerging themes as ‘predictors’ of outcomes for children with ASD in response to behavioural support intervention.  In doing so, Dr MacLean referred to the predictor that children with greater cognitive skills and higher adaptive behaviour scores are associated with better outcomes from intervention therapies. By comparison, children with more severe autistic symptoms make less progress over a longer period of time.

41. Dr Maclean’s opinion was that based on his clinical assessment of HHRQ’s symptoms and cognitive skills, HHRQ has several ‘predictors’ of achieving ‘lesser gains’ with behavioural support intervention.[120]

    [120]  R(c), page 34.

1. As to whether EIBI will, in the long term, reduce HHRQ’s future disability support needs Dr Maclean does not opine. This is on the basis he considers that the key determinant of future disability support needs for HHRQ relies on cognitive (IQ) testing (non-verbal and verbal IQ) and adaptive behavioural assessments.[121] 

   [121] R(c), page 35.

2. Dr Maclean’s opinion is that Dr Sandbank’s findings provide an evidence-based/evidence-informed guide as to what might be considered a reasonable and sufficient number of hours of ABA-based therapy week. Dr Maclean identified Dr Sandbank’s conclusions that an amount greater than 20 hours of early childhood intervention had not been satisfactorily proven to be more effective than a reduced level of intensive support in the range of 5-15 hours per week. Further, that Dr Sandbank’s findings align broadly with the recommendation recently proposed in the 2022 Autism CRC draft guidelines - Recommendation 56 which provided that practitioners should be aware that the research evidence does not support that more hours of intervention will consistently result in a better outcome for a child and their family.[122]

   [122] R5(c), page 6.

3. In respect of providing his recommendation of a range of hours for HHRQ Dr Maclean stated:

   ‘Even with knowledge of the robust nature of the conclusions provided by Dr Sandbank’s report and the notion of similar outcomes for children with autism receiving therapy in the range of 5-15 hours versus 20+ hours, it is difficult to directly translate this into hours of EIBI/ABA based therapy that can be confidently recommended for the applicant as both beneficial and sufficient and for the NDIA, both sufficient and value for money’.[123]

   [123] R5(c), page 3.

4. Notwithstanding, having regard to his clinical assessment and his observations of HHRQ Dr Maclean suggests:

   ‘a range of 10-14 hours per week, equivalent to three to four sessions of EDSM per week warrants evaluation in the application’.[124]

   [124] R5(c), page 4.

5. In providing his recommendation for HHRQ, Dr Maclean’s rationale refers to the findings contained in Rogers - 2021 (as also referred to by Dr Sandbank in her evidence) which highlighted 14-15 hours as being evidence-based. In doing so, Dr Maclean stated ‘pushing up to 27 to 40 hours to me…it hasn’t been shown to result in improvement’.[125]    

   [125] Transcript page 210 lines 21–40.

6. Dr Maclean considered that Rogers - 2021 was currently the ‘best’ study in relation to the effectiveness of intervention at different intensities. He confirmed that the findings of Rogers - 2021 identified there to be no outcome difference between intervention provided at an intensity of 15 hours as compared to 25.[126] In this regard, he described Rogers - 2021 as ‘a well-constructed randomised control trial’ with a significantly reduced risk of bias.[127]

   [126] Transcript page 204 lines 24–26.

   [127] Transcript page 204 lines 26-29.

7. Dr Maclean also gave evidence in relation to the proposal for the intensive feeding program. Dr Maclean stated that typically feeding problems are managed by a multidisciplinary team (‘MDT’) which included a speech therapist, dietitian, occupational therapist and paediatrician. Further, that in NSW, there are dedicated MDT feeding clinics within paediatric tertiary hospitals, that provide services for children with oral sensitives, restricted intake and feeding problems.[128] Dr Maclean considered that many of the risks and problems referred to by Dr Taylor in her report were ’potential outcomes’ that could be monitored medically.[129]

   [128] R2(c), page 35.

   [129] R2(c), page 36.

8. Dr Maclean described feeding disorders as being ‘almost germane’ to autism[130] and acknowledged that HHRQ clearly has restriction in her diet.[131] Dr Maclean described the nature of the intervention recommended by Dr Taylor as giving ‘exceptionalism’ to clinical disorders. He further stated that ‘within Dr Taylor’s report there was language and urgency that I just don’t agree with’.[132]

   [130] Transcript page 211 line 21.

   [131] Transcript page 211 line 28.

   [132] Transcript page 213 line 1- 2

9. Dr Maclean’s opinion was that the benefits of Dr Taylor’s intensive feeding program were not well-established.  He stated ‘… the idea of an incredibly intense intervention, that is, to put it plain - in plain English, extraordinary – is one that needs to be backed up by an extraordinary level of evidence’.[133]

   [133] Transcript page 212 lines 11-13.

10. Mr Maclean addressed the reference to ‘risks’ detailed in Dr Taylor’s report [102] and states ‘the statement of life and death appeared in her report and that’s not something that, you know, I would countenance.’ [134]

    [134] Transcript page 212, lines 4 - 6

11. As a lower cost alternative, with the same outcome, Dr Maclean referred to a feeding clinic assessment, MDT approach and weekly therapy.[135]

    [135] R2(c), page 36.

    Evidence of Dr Tessa Taylor.

12. Dr Taylor is a clinical psychologist.  She provided a recommendation and quotation for Paediatric feeding services on 2 November 2021 for HHRQ in the sum of $78,660.00.[136] This quotation encompassed the following components:

    [136] T8; T9.

    Intensive Services

    4 weeks/ 6 days per week at 7.5 hours per day

    180 hours at $350.00 per hour   $63,000.00

    Assistant

    Per family

    4 weeks/ 6 days per week at 8 hours per day

    8 hours for Discharge Summary

    10 hours follow up   

    210 hours at $50.00 per hour  $10,500.00

    Assistant Alone  

    Per family

    Parent Training and Follow-up                 $2,210.00

    On call

    One hour/day minimum

    6 hours at $325.00 per hour  $1,950,00

    Report preparation

    Discharge Summary

    5 hours at $200.00 per hour  $1,000.00

    TOTAL  $78,660.00

13. Dr Taylor also provided oral evidence at the hearing. She indicated that she was also a ‘Board Certified Behavior Analyst’, a qualification obtained from a non-government-based organisation based in the United States of America. Dr Taylor described herself as a ‘behaviour analyst’[137] and confirmed that she was currently on the Board of Working Directors for ABA Australia.[138]

    [137] Transcript page 115 line 19.

    [138] Transcript page 113 lines 27–28.

14. Dr Taylor’s recommendation in respect of HHRQ was prepared following a video conference with HHRQ’s parents, which included a meal observation of HHRQ.[139] Her opinion is that HHRQ has a paediatric feeding disorder.[140]

    [139] Transcript page 115 lines 1-2.

    [140] T9.

15. In her recommendation for an intensive feeding program Dr Taylor referred to multiple substantial risks and consequences for HHRQ in the absence of timely and effective treatment services. These include medical, developmental and social consequences including matters relating to sleep, toileting, learning and behaviour. She referred also to the risk of dehydration, growth failure, dental decay, immune system compromise, vitamin and mineral deficiencies, blindness, rickets, scurvy, fractures, infections, constipation and hormone disruptions. Also, the potential for severe problem behaviors such as self-injury, aggression, rumination and pica. Dr Taylor also identified the potential impact upon HHRQ’s social development, including participation in the community, school and extra-curricular participation, family functioning and travel.

16. I have no doubt the content of Dr Taylor’s report would cause significant distress and concern for HHRQ’s parents.

17. Dr Taylor recommended an intensive and effective feeding intervention for HHRQ ‘as soon as possible’, and that treatment for feeding should be ‘the highest priority’. She maintained that the program recommended by her was a cost-effective alternative to prolonged feeding difficulties and ineffective services.[141]

    [141] T9.

18. In her evidence Dr Taylor referred to research literature, including her own, RCT’s and Single Case Experimental Design Studies (‘SCEDS’) relevant to the question of whether the ‘intensity’ of intensive feeding intervention would likely lead to long-term benefits for HHRQ.[142] Dr Taylor acknowledged RCTs as being accepted as an adult standard in scientific research. Notwithstanding she also acknowledged that two RCT’s cited by her related to studies of three participants in each group. Also, that a number of SCEDS referenced were in respect of a single individual.[143] Dr Taylor’s evidence as to the proposed intensity of treatment recommended by her was in my view underwhelming.[144]

    [142] Transcript page 117 lines 29-38; T9; Peterson et al 2016; Peterson et al 2019.

    [143] Transcript page 117 lines 36-47; page 119 lines 32-46.

    [144] Transcript page 117 lines 8-10.

19. In the absence of providing any other references to current evidence-based research literature to support her recommendation of the intensity of a feeding therapy for HHRQ, Dr Taylor’s evidence was that the ‘intensity’ of the program recommended by her was an estimate based on the goals that HHRQ needed to meet.[145]

    [145] Transcript page 117 lines 14– 25.

    HHRQ’s position

20. HHRQ is significantly impacted by ASD and global developmental delay. This impact is in relation to learning, development, socialisation, life skills, communication and personal care and hygiene skills.

21. Her oral aversion and feeding difficulties are due to ASD and require specific expertise. HHRQ has an extremely limited food intake. She also has difficulty brushing her teeth, taking medicine or letting anyone or anything near her mouth.[146] She requires intensive feeding therapy in order to prevent a potential and costly lifetime issue.

    [146] Transcript page 63 lines 40-41.

22. M maintains that the Aspire program and the intensive feeding program are both ‘evidence-based’ early interventions which will address HHRQ’s disability.[147] Further, that to be effective as interventions, the programs recommended by Ms Verstappen and Dr Taylor, respectively, ought each be funded.

    [147] Transcript page 89 line 6.

23. M maintains that HHRQ has made minimal progress in the past 12 months as a consequence of inadequate therapy.

    Agency’s position

24. The Agency submits that the current funding for early childhood intervention supports are described generally in HHRQ’s plan and can be used flexibly. It is HHRQ’s parents who have exercised choice and control in respect of this funding to participate in an ABA therapy program through Aspire.[148]

    [148] Respondent’s Closing Submissions dated 10 February 2023, paragraphs 79-80.

25. The Agency also submits that it is open to the Tribunal to make a finding that the funding recommended by Dr Maclean satisfies the requirements of section 34 of the NDIS Act.[149]

    [149] Ibid, paragraph 87.

26. The Agency further submits that the funding sought by HHRQ in accordance with the recommendation of Dianne Verstappen through the Aspire program does not satisfy the requirements provided under sections 34(1)(c), 34(1)(d) or 34(1)(e). Further, that the funding sought by HHRQ in accordance with the recommendations of Dr Taylor does not satisfy the requirements provided under sections 34(1)(c), 34(1)(d) or 34(1)(f) of the NDIS Act.[150]

    [150] Ibid, paragraph 248.

    Early Intervention Support for HHRQ

27. There is no dispute between the parties as to whether the early intervention supports will assist HHRQ to pursue her goals and aspirations and assist her to undertake activities that will facilitate her social and economic participation. In this regard I am also satisfied that the criteria under sections 34(1)(a) and 34(1)(b) of the NDIS Act are satisfied.

Subparagraph 34(1)(d): Will the Aspire Program be, or likely to be, effective and beneficial for HHRQ, having regard to current good practice?

1. In my view the substantive issue in respect of early intervention support is whether the Aspire Program, provided at the intensity recommended by Ms Verstappen, will be, or will likely to be, effective and beneficial for HHRQ having regard to current good practice. Consideration of this issue invokes the operation of rules 3.2 and 3.3 of the NDIS Rules which provide as follows:

   Effective and beneficial and current good practice

   3.2     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

   (a)     published and referred literature and any consensus of expert opinion;

   (b)     the lived experience of the participant or their carers; or

   (c)     anything the Agency has learnt through delivery of the NDIS.

   3.3     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

2. The Tribunal is required to be positively satisfied that section 34(1)(d) is established on the evidence.[151]

   [151] National Disability Insurance Agency v WRMF [2020] FCAFC 79 AT [201]; Beezley v Repatriation Commission (2015) 150 ALD 11 at 26-27 at [68].

3. I accept the evidence of Dr Maclean ABA therapy is an accepted EIBI therapy and endorsed by both Australian and US guidelines. In this regard I also refer to the findings of both NAC - 2009 and NAC - 2015 which support ABA therapy as an established treatment insofar as there being compelling evidence to show that ABA demonstrates favourable outcomes for children with ASD.

4. I also accept Dr Maclean’s opinion that in the context of HHRQ being affected by a significant developmental delay she should have access to an evidence-based early intervention with trained therapists.[152]

   [152] R2(c).

5. Having considered the evidence, which includes expert opinions and voluminous research literature, I am therefore satisfied that ABA therapy as an EIBI and provided by Aspire is an established treatment that will be beneficial to HHRQ.

6. Notwithstanding, I am not satisfied that increasing the intensity of EIBI for HHRQ from 15 hours per week to 28 hours per week will be, or is likely to be, effective and beneficial for HHRQ having regard to current good practice.

7. In this regard the evidence of both Dr Sandbank and Dr Maclean was highly persuasive. I am satisfied that the expert opinions of Dr Sandbank and Dr Maclean, and the research literature upon which those opinions relied, correctly informed the Tribunal in respect of the outcomes of early intervention for HHRQ at differing intensities.

8. In respect of Dr Sandbank, my considerations were as follows:

   ·I accept Dr Sandbank is an internationally renowned expert on early interventions for children on the autism spectrum and suitably qualified to provide an expert opinion on the following matters:

   ·the current state of clinical research; and

   ·what the current clinical research establishes in relation to intervention intensity and the effectiveness of any outcome for children with ASD.[153]

   [153] R9(b) at [6].

   ·Project AIM, led by Dr Sandbank, is the most recent quantitative synthesis of controlled tests of non-pharmacological interventions for children with ASD.[154]

   [154] R9(b) at [33].

   ·In providing her opinion Dr Sandbank had considered all relevant and available research studies up until the time of her final report in December 2022 (shortly prior to the hearing).

   ·Dr Sandbank’s opinion correctly reflects the current scientific evidence and research findings in relation to the effectiveness of early intervention at different levels of intensity. This opinion that the current available clinical research does not satisfactorily establish that more intensive supports of 20+ hours per week of early childhood intervention is more effective than less intensive supports, such as 5 and 15 hours per week.

   ·Dr Sandbank’s opinion includes review of the Rogers - 2021 study which concluded similar ‘outcomes’ for children with ASD irrespective of 15 or 25 hours of intervention per week.

   117.    In respect of Dr Maclean, my considerations were as follows:

   ·Dr Maclean demonstrated a detailed knowledge and understanding of the current research, recommendations and guidelines (including draft guidelines as proposed) in respect of current good practice in 2023 for early childhood intervention for children with ASD. Dr Maclean’s knowledge and understanding is of the level that is expected of an expert giving evidence in this Tribunal. 

   ·Dr Maclean’s clinical assessment and opinion in respect of HHRQ was informed not only by his extensive clinical skills and expertise but also his knowledge and understanding of high-quality and up-to-date research literature.

   ·Dr Maclean’s recommendation of a range of 10-14 hours of early intervention for HHRQ[155] is well-reasoned. Dr Maclean acknowledged appropriately the challenges in providing a recommendation and I formed the view that his recommendation was cautiously and carefully made after consideration of a significant number of factors including the following:

   [155] R5(c), page 4.

   oHis professional commitment to being strongly influenced and informed by up-to-date evidence-based research insofar as decisions concerning therapies for children with ASD.[156]

   oHis strong guidance that the question of intensity versus outcome has more recently been informed by the recent studies of Dr Sandbank in Project AIM and Rogers - 2021.[157]

   oThe findings of Rogers - 2021 which identified that there was no difference between 15 and 25 hours per week of early intervention in terms of outcomes for a child with ASD.[158]

   oThe findings of Dr Sandbank research in Project AIM and her opinion.

   oThe reported experience of HHRQ’s family and the improvements noted during the Little Steps program and the subsequent therapy of lesser hours.

   oHis clinical experience as a paediatrician over a period of twenty years.

   oHis clinical assessment of HHRQ which included a ‘first-hand evaluation’ conducted at the family home.

   oHis clinical opinion that HHRQ has several predictors of achieving lesser gains with early intervention having regard to research of Dr Sandbank.[159]

   oThe recent findings of Trembath - 2021 which reported a ‘limited and fragmented base linking the intensity of intervention with an outcome for children with ASD’. 

   oThe 2022 Autism CRC Draft guidelines which currently propose as a recommendation that practitioners inform parents that there is no set number of hours per week that will necessarily led to the best outcome for their child. Further, that practitioners should be aware that the current research evidence does not support the proposition that supports delivered in greater amounts consistently leads to the best outcome for their child. 

   [156] R5(c), page 6.

   [157] Transcript page 205 lines 21-40.

   [158] Transcript page 204 lines 24-25; R5(c), page 5.

   [159] R2(c), page 34.

9. The evidence of Ms Verstappen was not persuasive. In this regard, I make the following comments:

   ·The Aspire program recommended by Ms Verstappen refers to purported benefits and outcomes from EICI. In doing so it refers to the findings of ‘dated’ research literature, the accuracy of which has been superseded by more recent studies.[160]

   ·Understandably HHRQ’s parents were persuaded and encouraged by the content of the information and material provided to them by Aspire Intervention. Unfortunately, the information provided by Ms Verstappen did not incorporate the findings of current research, recommendations or guidelines in respect of current evidence-based good practice in 2023. Notably, research studies available during or prior to 2012 constitute only 25% of the published research currently available.[161]

   ·As far back as 2015 the ECIA Guidelines identified a number of key practices for early child intervention practitioners. These included the recommendation that practitioners maintain their knowledge and skills through lifelong continuing professional education. This requires ongoing review and monitoring of their practices and a strong culture of professional enquiry.[162]

   ·The information provided by Aspire Intervention to HHRQ’s parents does not reflect or incorporate current research literature. By way of example Roberts & Williams - 2016, a study relied upon by Ms Verstappen was informed by approximately 73 reports. By comparison, Dr Sandbank’s research findings and opinion are informed by approximately 289 reports.

   ·In her evidence Ms Verstappen demonstrated an absence of knowledge of the current and relevant research literature in respect of the relationship between the intensity of early intervention and outcomes for children with ASD.

   ·In oral evidence Ms Verstappen confirmed her recommendation was based on her ‘clinical view, with my best understanding of the knowledge and the interpretation of the evidence that I’ve read, yes. That’s correct’.[163]

   ·Ms Verstappen then proceeded to confirm that at the time of providing her recommendation she was ‘probably aware’ of research subsequent to Roberts - Williams 2016; however, had not, at that time, updated ‘my report templates’.[164] When clarification was sought, Ms Verstappen acknowledged that at the time of providing her recommendation she was also not aware of Dr Sandbank’s research, Project AIM, and that she was uncertain as to whether she was aware of Autism CRC - 2020.

   ·Ms Verstappen confirmed in her oral evidence that she had since read Autism CRC – 2020. Of concern however, she stated that whilst she was now aware of Dr Sandbanks’ meta-analysis, she had not read Dr Sandbank’s research literature in any depth.[165]

   [160] R9(b), page 5.

   [161] R9(b), page 6.

   [162] R7, ECIA Guidelines page 364.

   [163] Transcript page 158 lines 44–46.

   [164] Transcript page 159 line 8.

   [165] Transcript page 159 lines 37-38.

   Intensive Feeding Program

1. The Agency submits that the Intensive Feeding Program does not satisfy the requirements provided under sections 34(1)(c), 34(1)(d) or 34(1)(f).[166]

   [166] Respondent’s submissions dated 10 February 2023 at [248].

2. I am also not satisfied that the Intensive Feeding Program recommended by Dr Taylor will be effective and beneficial for HHRA having regard to current good practice and in accordance with the criterion under section 34(1)(d). My considerations include the following:

   ·The evidence of Dr Taylor which in my view failed to satisfy me that the Intensive Feeding Program represented current good practice and was supported by appropriate and persuasive published and referred literature.

   ·The opinion expressed by Dr Maclean, an experienced paediatrician, as already referred to in this decision.

3. As stated, because the criteria in section 34(1) are cumulative, it is not necessary for the Tribunal to consider whether the remaining mandatory criteria under section 34(1) are satisfied.

   CONCLUSION

4. In respect of the Aspire program, section 34(1)(d) of the NDIS Act is not satisfied. Therefore, because the criteria in section 34(1) are cumulative, it is not necessary for the Tribunal to consider whether the further mandatory criteria under sections 34(1)(c), 34(1)(e) or s34(1)(f) of the NDIS Act are met.

5. In respect of the intensive feeding program, section 34(1)(d) of the NDIS Act is also not satisfied. Likewise, it is therefore not necessary for the Tribunal to consider whether the remaining mandatory criteria under sections 34(1) of the NDIS Act are met.

6. I am satisfied that the Aspire program, which recommends 28 hours early invention per week is not evidence-based having regard to current research literature.  I am therefore also not satisfied that the Aspire program will be, or is likely to be, effective and beneficial for HHRQ and represents current good practice.[167]

   [167] Section 34(1)(d) NDIS Act.

7. Having regard to the evidence of Dr Maclean, Dr Sandbank and the relevant research literature I am however satisfied that ABA therapy as an early intervention, at a reduced intensity will be, or is likely to be beneficial to HHRQ. HHRQ currently receives 15 hours per week as a funded support through the scheme.[168] I see no reason to disturb this level of support and I am satisfied that the current funding of 15 hours per week for Early Childhood Intervention in the form of ABA therapy through Aspire is a reasonable and necessary support in all of the circumstances.

   [168] Respondent’s submissions dated 10 February 2023 at [35]

8. I am not satisfied that the intensive feeding program is a reasonable and necessary support for HHRQ.

9. In relation to the provision of occupational therapy and speech therapy I agree with the specification of these supports as ‘stated supports’. Based on the evidence of Dr Maclean[169] I consider it is imperative that HHRQ receives these supports and that the funding for these supports not be redirected elsewhere.

   [169] R5(c).

   DECISION

10. The Tribunal sets aside the decision under review and remits the matter to the Agency with the following directions:

    ·The ‘statement of participant supports’ in HHRQ’s current plan dated 2 August 2023 include as reasonable and necessary supports:

    o15 hours per week of support at the 'Capacity Building Supports for Early Childhood Interventions – Other Professional' rate of $193.99/hour for early childhood intervention supports;

    o4 hours per year of report writing at the 'Capacity Building Supports for Early Childhood Interventions – Other Professional' rate of $193.99/hour for early childhood intervention supports;

    o26 hours per year of Level 2 Support Coordination at the applicable NDIS Price Guide rate;

    o52 hours per year of occupational therapy to be included as a 'stated support' so that the funding cannot be used flexibly; and

    o52 hours per year of speech therapy to be included as a 'stated support' so that the funding cannot be used flexibly.

    ·The date by which the Agency must reassess the HHRQ’s plan is to be twelve (12) months after the date of this decision.

    ·That all other supports in the HHRQ’s existing statement of participant supports, be replicated pro-rata from the date of this decision until the reassessment date.

162.    

I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

..........................[SGD]..........................

Associate

7 August 2023