Mazy and National Disability Insurance Agency - [2018] AATA 3099

Mazy and National Disability Insurance Agency [2018] AATA 3099 (9 August 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/1936
Re:Kim Mazy
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:9 August 2018
Date of written reasons: 28 August 2018
Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides that:
1.the reviewable decision made 27 March 2018 to refuse to fund the provision of care by a registered nurse to administer insulin to Ms Mazy four times per day is set aside; and
2.in substitution it is decided that the provision of care by a registered nurse to administer insulin to Ms Mazy four times per day is a reasonable and necessary support in accordance with s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth).

..................[sgd]......................................................
J W Constance
Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - whether support is reasonable and necessary - whether cost of support is reasonable - whether support is most appropriately funded or provided through the National Disability Insurance Scheme - whether administering insulin to Applicant falls under the Scheme - non-verbal - intellectual disability - blind - hearing impaired - decision set aside
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
Young and National Disability Insurance Agency [2014] AATA 401
YPRM and National Disability Insurance Agency [2016] AATA 1023
SECONDARY MATERIALS
Council of Australian Governments, Principles to Determine the Responsibilities of the NDIS and Other Service Systems, 27 November 2015
National Disability Insurance Scheme, Operational Guidelines (Planning)
WRITTEN REASONS FOR DECISION
Oral reasons given 9 August 2018
28 August 2018
INTRODUCTION

Ms Mazy is a participant in the National Disability Insurance Scheme (NDIS) which is administered by the National Disability Insurance Agency.
By this application Ms Mazy is asking the Tribunal to review the Agency’s decision to refuse to review her plan to include provision for the assistance of a registered nurse to administer the doses of insulin she requires to control her type 1 diabetes.
On 9 August 2018 I set aside the Agency’s decision. In substitution, I decided that the provision of the services of a registered nurse four times per day to assist in the management of Ms Mazy's type 1 diabetes is a reasonable and necessary support to be funded by the National Disability Insurance Scheme.
At the time I gave oral reasons for my decision. I now provide my reasons in writing.
BACKGROUND
The facts set out in the following subparagraphs are taken from the Applicant’s Statement of Position and are not in dispute:
1The applicant, Ms Mazy, is a 53 year old woman who is blind, hearing impaired and non-verbal. She has a severe intellectual disability.
2On 17 January 2018, the applicant’s representatives (her mother, Margaret Noble and her support co-ordinator, Alexandra Nakad) were notified that funding for the applicant’s regular administration of insulin for her type one diabetes, funded at the time by the NSW Department of Ageing, Disability and Home Care and provided by Nurses on Wheels, would cease.
3On 22 January 2018, the applicant (through her representatives via phone) sought a review of her National Disability Insurance Scheme (NDIS) plan under section 48(1) National Disability Insurance Scheme Act 2013 (NDIS Act).
4Between 22 January 2018 and 21 March 2018, the applicant’s representatives submitted requested evidence and had discussions with officers of the respondent about the applicant’s change of circumstances.
5On 21 March 2018, the respondent issued a decision. It said:
The National Disability Insurance Agency (NDIA) must decide whether or not to review a plan when requested by a participant under section 48(2) of the National Disability Insurance Scheme Act 2013.
Unfortunately based on the information provided, your request for a plan review has not been successful at this time (T20/143)
6In her reasons, the decision maker said:
A person normally administers their own insulin so if Kim is unable to due to a cognitive or physical impairment then it is reasonable for her support staff to provide this assistance as long as they have been trained. The request could be met through ‘the Capacity Building support, individual assessment and support by a registered nurse to train staff in how to assist participants with their health care needs as a result of their disability.
…
As Kim’s General Practitioner and service provider have stated that the support staff are not to administer the insulin due to Kim’s complex medical needs and a registered nurse needs to provide this support, then it becomes the responsibility of HEALTH.
7On 26 March 2018 the applicant sought an internal review of the decision by email.
8On 27 March 2018, the respondent issued an internal review decision, considering and applying the section 34(1) criteria to the support. The review concluded:
I have decided not to change the decision (T2/8)
9The application before the Tribunal is for a review under s 103 NDIS Act of the decision made 27 March 2018.
The care provided by Nurses on Wheels since 2009, and which Ms Mazy wishes to continue, is:
·a registered nurse visits Ms Mazy at 8:00 am, 12 noon and 4:30 pm each day to monitor her blood sugar levels and administer the appropriate insulin dose (given in four injections);
·on three days per week the nurse will meet Ms Mazy at an outdoor location away from her home to administer the 12 noon injection; this allows Ms Mazy to participate in activities such as swimming and visits to parks and beaches with friends.
LEGISLATIVE FRAMEWORK
Participant plan
Once a person becomes a participant in the Scheme, the Chief Executive Officer of the Agency must facilitate the preparation of a plan for the participant as soon as reasonably practicable.[1] This plan must include a “statement of goals and aspirations” of the participant and a “statement of participant supports”.[2] The latter statement must specify “the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme”.[3]
[1] National Disability Insurance Scheme Act 2013 (Cth) s 32.
[2] National Disability Insurance Scheme Act 2013 (Cth) s 33.
[3] National Disability Insurance Scheme Act 2013 (Cth) s 33(2)(b).
The objects of the Act
Subsection 3(3) provides, in part:
In giving effect to the objects of the Act, regard is to be had to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
…
(d) 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 National Disability Insurance Scheme.
General principles guiding action under the Act
Relevant general principles to this application found in section 4 of the Act are:
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(11) Reasonable and necessary supports for people with disabilities should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to 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 ISSUES FOR DETERMINATION
In order to decide whether the provision of the assistance of a registered nurse is a “reasonable and necessary support” for Ms Mazy and one which should be funded under the Scheme, two issues arise:
(1) Is the support requested “most appropriately funded or provided through the National Disability Support Scheme”?
(2) Does the support requested “represent value for money”?
EVIDENCE AND FINDINGS OF FACT
The evidence of Ms Noble
Ms Noble is the mother of Ms Mazy. She provided a statement dated 3 July 2018[4] and gave evidence before the Tribunal.
[4] Exhibit A5.
Ms Noble noted that in addition to the disabilities referred to above, Ms Mazy has a heart problem.
Ms Mazy lived at home and was cared for by Ms Noble until she was six years old. From that time she became a boarder at the Blind/Deaf School during the week. She would return home for the weekends and be cared for by Ms Noble. She continued to attend the Blind/Deaf School until she was 25 years old.
Ms Mazy has very little capacity to communicate with others. She makes limited use of hand movements to convey her needs. She is entirely dependent on other people for full-time care. She needs supervision to ensure that she eats her meals properly. As she cannot distinguish day and night, she may remain awake all night and sleep during the day.
Ms Mazy was diagnosed with type 1 diabetes when she was about 18 years old. This condition has worsened over time and is now difficult to control. Her blood glucose levels can range from 2 to 35, particularly if the levels are not well monitored. Ms Mazy has never managed her diabetes herself.
Ms Mazy has lived in her present home for the past 19 years. She is very settled in this accommodation and has come to know, and be familiar with, those who assist in her care. Ms Mazy’s carer who supervises her day program has been with her for the entirety of her time at her present accommodation and previously. Ms Mazy is also assisted by another member of the household.
There are two carers in the house during the day and one overnight. One of the carers has been at the home for the past 16 years and knows Ms Mazy very well.
Ms Mazy identifies those who care for her, including the registered nurses, by touch. She is rarely in a position where she is in company with someone she does not know.
It is very difficult for Ms Mazy to adapt to change. She can become aggressive if she finds herself in unfamiliar surroundings.
Prior to the assistance provided by Nurses on Wheels there were occasions when Ms Mazy was given an incorrect dose of insulin. At times Ms Mazy was hospitalised and on one occasion it was necessary to call an ambulance. On other occasions Ms Mazy was resistant to having an injection as she was unfamiliar with the person attending her.
In late April 2018 Ms Noble was advised that the funding of assistance by Nurses on Wheels would cease. She then tried to find alternative accommodation for Ms Mazy where carers were permitted to administer insulin. Ms Noble was unable to find accommodation which would meet Ms Mazy’s needs as well as her present arrangements. The alternative housing provider did not provide any day programs. Others living in the property did not have the same type of disabilities as Ms Mazy. When Ms Noble costed the alternative accommodation it was going to cost $1000.00 per week more that Ms Mazy's present arrangements (including the cost of Nurses on Wheels). In addition, the alternative arrangements did not provide any day programs.
The cost of the support requested
Based on invoices from Nurses on Wheels,[5] the cost of the support requested is $105.00 per day.
[5] Exhibit A4.
Evidence of Dr Rohl, Endocrinologist
Dr Rohl provided a report dated 1 June 2018 and gave evidence. He also provided reports dated 13 February 2018,[6] 8 March 2018[7] and 1 June 2018.[8] He has been Ms Mazy’s treating specialist since February 2002.
[6] Exhibit R1 at 141.
[7] Exhibit R1 at 142.
[8] Exhibit A6.
On 13 February 2018 Dr Rohl reported that:
…… this patient is totally unable to administer insulin to herself because she has intellectual disability, is BLIND, hearing impaired & non-verbal. She has had insulin dependent diabetes since adolescence. Arrangements must be made for nursing staff to be available to give this patient insulin.
In his report of 8 March 2018, Dr Rohl expanded upon this view:
In addition, her complex medical problems, in particular insulin dependent diabetes mellitus requires professional nursing supervision. Professional nursing supervision is required to review the blood glucose profile of the patient and understand how to adjust the patient insulin requirements to void in particular, hypoglycaemic episodes and how to adjust the dose to take into account blood glucose fluctuations during periods of infection or stress.
On 1 June 2018 Dr Rohl reported, in part:
Professional nursing supervision is necessary to draw up and administer variable insulin doses three times daily. This aspect of her care cannot be left to medically untrained carers, and the patient herself is incapable of undertaking this task.
Three times per day the patient requires her blood glucose levels to be monitored, then her regular insulin dose before meals needs to be adjusted and administered. …… Carers are not qualified to administer injectable medications, nor should it be their responsibility.
A medically trained professional such as Nurses on Wheels, is also able to assess whether or not changes in the patient’s insulin requirements are appropriate and could also monitor the patient for signs of hypoglycaemia (low blood glucose events), as well as for other chronic complications of diabetes.
I provide telephone support for Nurses on Wheels, when there are clinical problems developing in this patient. Medical personnel understand and can carry out my suggestions if Kim’s management needs to be adjusted between routine visits to see me. The responsibility for changing medical orders cannot not [sic] be relegated to a non-medically trained carer, but only to a suitably trained nurse.
Ms Mazy is on a variable insulin dose which can be adjusted by the registered nurses on a day-to-day basis. In addition, the registered nurses have the training to enable them to adjust Ms Mazy’s food plans as required and to look for signs of infection. Dr Rohl described their task as “always fine tuning”. They will be alert to a rise in sugar level which can be a life-threatening situation.
Dr Rohl gave oral evidence that if Ms Mazy is administered an incorrect dose of insulin it could cause obstruction of her airways. A monitor or an insulin pump is not an appropriate form of treatment for her. If Ms Mazy did not have the disabilities she has, she could be taught to self-administer and to adjust doses of insulin herself.
With the assistance of registered nurses, Ms Mazy’s consultations with Dr Rohl are restricted to a couple of times per year. Between visits he is in contact with the medical staff and peruses Ms Mazy’s records.
CONSIDERATION OF THE ISSUES
The Agency agrees that the assistance requested by Ms Mazy satisfies some of the requirements of the Act in relation to the “reasonable and necessary supports that will be funded”
In making a decision as to the reasonable and necessary supports which will be funded, the decision-maker must be satisfied of a number of matters which are set out in subsection 34(1) of the Act.
The Agency accepts that the nursing assistance requested by Ms Mazy meets some of the criteria set out :
·it will assist Ms Mazy to pursue the goals, objectives and aspirations set out in her plan (subsection 34(1)(a));
·it will assist Ms Mazy to undertake activities, so as to facilitate a social and economic participation (subsection 34(1)(b));
·it will be effective and beneficial for Ms Mazy, having regard to current good practice (subsection 34(1)(d));
·it is not reasonable to expect families, carers, informal networks and the community to provide the assistance sought (subsection 34(1)(e)).
On the evidence before me, I am satisfied that the Agency’s agreement that the above requirements have been met is appropriate.
Issue 1: Is the support requested “most appropriately funded or provided through the National Disability Insurance Scheme”?
Subsection 34(1)(f) of the Act provides that the CEO must be satisfied that:
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.
The Agency’s argument
The Agency:
contends that the medical evidence suggests that notwithstanding the Applicant’s disability, she would still require nursing assistance to manage her diabetes. In those circumstances, in accordance with s 34(1)(f) of the NDIS Act, Support Rules 7.4 and 7.5 and the COAG Principles, the nursing assistance is not most appropriately funded by the NDIS.[9]
[9] Respondent’s Statement of Position filed 10 July 2018 at [5.5].
The National Disability Insurance Scheme (Supports for Participants) Rules 2013
Schedule 1 of these Rules sets out the considerations relating to whether supports are most appropriately funded through the NDIS.
Under the heading Health (excluding mental health) the Rules provide, in part:
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;
The COAG Principles
In 2015 the Council of Australian Governments issued “Principles to Determine the Responsibilities of the NDIS and Other Service Systems”.
The relevant Principles provide:
3Health systems are responsible for funding time limited, recovery-oriented services and therapies (rehabilitation) aimed primarily at restoring the person’s health and improving the person’s functioning after a recent medical or surgical treatment intervention. This includes where treatment and rehabilitation is required episodically.
4The NDIS will be responsible for supports required due to the impact of a person’s impairment/s on their functional capacity and their ability to undertake activities of daily living. This includes “maintenance” supports delivered or supervised by clinically trained or qualified health professionals (where the person has reached a point of stability in regard to functional capacity, prior to hospital discharge (or equivalent for other healthcare settings) and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
Discussion
I do not accept the Agency’s argument that the nursing support provided by Nurses on Wheels is clinical treatment of an ongoing or chronic health condition and that it is excluded from the responsibility of the Scheme by rule 7.5(a).
Rule 7.4 clearly recognises that in some circumstances maintenance supports by clinically trained health practitioners will be funded under the Scheme where the supports are “related to a person’s ongoing functional impairment and that enable a person to undertake activities of daily living” and where they are “directly related to a functional impairment.”
I accept the evidence of Dr Rohl that, but for her disabilities (by reason of which she is a participant in the Scheme), Ms Mazy would be able to self-administer the insulin she requires. On the basis of this evidence I am satisfied that her inability to do so does not arise from the nature of the health condition which requires treatment. Rather, it arises from the disabilities which caused her to be a participant in the Scheme. In this regard, Ms Mazy's need for nursing assistance is to be contrasted with the clinical treatment provided by Dr Rohl. The latter is not funded by the Scheme as it clinical treatment related to her diabetes and not directly to her disabilities.

The requested support of a registered nurse is directly related to Ms Mazy's functional impairments and is integrally linked to the care she needs to live in the community.
The conclusion I have reached is consistent with the COAG Principles. The support of a registered nurse is required due to the impact of Ms Mazy's impairments on her functional capacity and her ability to undertake activities of daily living. The support is not required by reason of the diabetes condition – without the disabilities she suffers Ms Mazy would be able to self-manage her condition with the assistance of Dr Rohl.
Counsel for the Agency also referred me to the Appendix of the Operational Guidelines – Planning issued by the Agency. These Guidelines relevantly provide that the following are “supports general funded by other parties”:
Assistance to increase functioning (rehabilitation) specialist allied health, rehabilitation and other therapies for people with recently acquired conditions such as newly acquired spinal cord injury or brain injury, until the participant has achieved the maximum level of achievable functioning and the remaining allied health support is for the purpose of maintenance
Clinical treatment – general practitioner, psychiatry, pharmaceuticals, clinical care in the community, residential services, mental health crisis assessment services, post-acute services, hospital avoidance services and post-acute care services.
The paragraph under the heading “Clinical treatment” appears in a section relating to mental health and is not applicable to this application. In any event, to the extent that the Guidelines are inconsistent with the Act and Rules, the Guidelines should not be applied. They are not binding on the decision-maker.
In reaching my conclusion on this issue I have taken into account that the absence of an alternative source of funding (in this case services provided by the State Government) does not mean that funding automatically becomes the responsibility of the NDIS.
In Young and National Disability Insurance Agency,[10] the Tribunal said:
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).
[10] [2014] AATA 401 at [41].
In this application, for the reasons set out, I am satisfied that the correct interpretation of the Act and Rules require funding under the Scheme.
Issue 2: Does the support requested “represent value for money’?
Subsection 34(1)(c) provides that the CEO must be satisfied that:
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.
The Agency’s argument
The Agency argues that other comparable supports which would achieve the same outcome for Ms Mazy have not been fully investigated.[11]
[11] Respondent’s Statement of Position filed 10 July 2018 at [5.14].
The Agency accepts that it would be beneficial to Ms Mazy to remain in her present accommodation in terms of her social participation and independence. However, it is argued that other technological aids and assistive technology, such as an insulin pump, have not been sufficiently explored. The Agency has proposed that it could fund training of Ms Mazy's support workers in the use of a pump and the engagement of appropriately qualified personnel to undertake any injections required and to maintain the pump.[12]
[12] Respondent’s Statement of Position filed 10 July 2018 at [5.15].
Discussion
There is some evidence as to the relative value for money of the support requested. Ms Noble has made enquiries which indicate that it would be more expensive to relocate Ms Mazy and provide some support for the administration of the insulin she requires than it would be to continue to provide the services of Nurses on Wheels. In addition, extra support for a day care program would be required if Ms Mazy moved to alternative accommodation.
There is also the unchallenged evidence of Dr Rohl, Ms Mazy's treating specialist, that an insulin pump is not suitable technology for Ms Mazy and that she is unable to self-administer insulin under any circumstances. Dr Rohl has been treating Ms Mazy for over 16 years. I accept his evidence and find it to be particularly persuasive.
I am satisfied that any changes to Ms Mazy's accommodation would be very difficult and disruptive for her. There would be no benefit achieved by the adoption of any means of providing the requested support other than that presently in place. In fact, I find that any change would be detrimental to Ms Mazy.
I have taken into account that the financial sustainability of the Scheme is an object of the Act.[13] The need to ensure this sustainability is also one of the general principles set out in subsection 4(17)(b).
[13] National Disability Insurance Scheme Act 2013 (Cth) s 3(3)(b).
In this case there is evidence that the support requested by Ms Mazy presently costs $105.00 per day. There is no evidence to enable me to compare the cost of alternative supports or to make an assessment as to the effect (if any) of my decision on the financial viability of the Scheme. This is to be compared with the material provided to the Tribunal by the Agency in YPRM and National Disability Insurance Agency.[14] In that matter, the Agency provided estimates as to probable future costs to the Scheme should the decision sought by the Applicant be made.
[14] [2016] AATA 1023.
I do not accept the Agency’s contention that I should conclude that the requirements of subsection 34(1)(c) are not met on the basis that alternatives means of support have not been “fully investigated.”
With exceptions that are not relevant here, neither party to proceedings before the Tribunal bears an onus of proof. The Tribunal is required to make the correct or preferable decision (depending on the nature of the decision to be made) after considering all of the evidence before it. In this matter, the evidence of Dr Rohl is that an insulin pump and any form of self-administration is not a reasonable option. In addition, I have the evidence of Ms Noble to which I have referred. On the other hand, there is no evidence advanced by the Agency as to specific alternatives supports which would meet the requirements of subsection 34(1)(c).While each matter is to be determined on its merits by the particular Tribunal hearing the matter, often it will not be sufficient for the Agency simply to take the position that an Applicant has not fully investigated the alternative supports which may be available.
If the Agency claims that there are alternative supports which are preferable to those sought by the Applicant, it is incumbent on the Agency to assist the Tribunal by providing evidence to support its argument.
CONCLUSION
The reviewable decision, made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency on 27 March 2018, will be set aside.
In substitution, the services of a registered nurse four times per day to assist in the management of Ms Mazy's type 1 diabetes is a reasonable and necessary support to be funded by the National Disability Insurance Scheme.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..................[sgd]......................................................
Associate
Dated: 28 August 2018

Date(s) of hearing: 17 July and 9 August 2018

Solicitors for the Applicant: Legal Aid NSW

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:	17 July and 9 August 2018
Solicitors for the Applicant:	Legal Aid NSW
Solicitors for the Respondent:	Sparke Helmore Lawyers