XXWC by his mother and National Disability Insurance Agency
[2020] AATA 923
•23 March 2020
XXWC by his mother and National Disability Insurance Agency [2020] AATA 923 (23 March 2020)
Division:National Disability Insurance Division
File Number: 2018/5630
Re:XXWC by his mother
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:23 March 2020
Place:Melbourne
The Tribunal decides:
(1)vary the statement of participant supports included in the Plan by:
(a)setting aside the decision to specify funding in the sum of:
(i)$39,196.62 for the provision of Early Childhood interventions supports as Capacity Building supports; and
(ii)$5,129 for Core Supports to assist with the activities of daily living; and
(b)substituting a decision that funding in the amount of $112,723.20 is approved for Capacity Building Supports for XXWC; and
(2)adjourning further consideration of whether any further funding should be provided for reasonable and necessary travel by therapists to deliver the Capacity Building Supports.
......................[sgd]..............................................
S A FORGIE
Deputy President
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – participant is a minor with Autism Spectrum Disorder – participant in need of early intensive behavioural intervention– multidisciplinary therapy – participant already undertaking a program of intervention under the Early Start Denver Model – whether it is reasonable and necessary to fund the Early Start Denver Model – whether alternative comparable intervention should be funded at a lower rate – alternative intervention not appropriate for this applicant – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (AAT Act); s 25
National Disability Insurance Scheme Act 2013; s 3; s 4; Chapter 3; s 99
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Plan Management) Rules 2013
Private Health Insurance Act 2007
Private Health Insurance (Benefit Requirements) Rules 2011
Tribunals Amalgamation Act 2015; s3 and Schedule 1, Item 40
Secondary materials
Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers
Early Intervention for Children with Autism Spectrum Disorders: ‘Guidelines for Good Practice’ 2012
Cases
Re Gee and and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Yolbir v Administrative Appeals Tribunal and Anor [1994] FCA 910; (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15
REASONS FOR DECISION
Deputy President SA Forgie
XXWC is a three year old boy, who has been diagnosed with Autism Spectrum Disorder (ASD) when he was approximately 18 months.[1] He is also a participant in the National Disability Insurance Scheme (NDIS). On 12 December 2017, the Chief Executive Officer (CEO) of the National Disability Insurance Scheme Launch Transition Agency (Agency) approved a statement of participant supports included in the participant’s plan prepared for XXWC (Plan). That Plan was to commence on 12 December 2017 and to be reviewed by 12 December 2018. It included a sum of $39,196.62 for the provision of Early Childhood intervention supports that it identified as Capacity Building Supports and a further $5,129 for Core Supports to assist with undertaking activities of daily living. WWXC’s parents sought review of that decision on the basis that funding should be provided to provide Early Childhood intervention for at least 20 hours each week. For reasons given in a letter to XXWC’s mother and dated 1 November 2018,[2] the reviewer decided that the supports provided for XXWC in the SPS were those that were reasonable and necessary for him. The reviewer affirmed the decision to approve the statement of participant supports in WWXC’s Plan.
[1] T documents; T6 at 55-62
[2] Supplementary T documents; ST1 at 1-6
The Agency replaced the Plan on 11 December 2018 with a new plan starting on that day and specifying 11 June 2019 as the plan review date. It approved reasonable and necessary supports for Early Childhood supports in the sum of $19,918.66 and Total Capacity Building Supports in the sum of $2,723.24 for the six month period.
The Plan as first made for the period commencing on 12 December 2017 and scheduled for review by 12 December 2018 is the plan which is under review. The statement of participant supports approved by the CEO approved funding for the same supports and at the same figure as in the original Plan. Since then, the Agency has agreed that XXWC should have a further 18 hours of early intensive behavioural intervention (EIBI) each week. XXWC’s parents have agreed that 18 hours is an appropriate amount of additional EIBI but have not agreed on the funding model. I have decided to vary the Plan by setting aside the funding of $39,196.62 for the provision of Early Childhood intervention supports that it identified as Capacity Building Supports and $5,129 for Core Supports to assist with undertaking activities of daily living, and substitute a decision that funding in the amount of $112,723.20 should be approved for Capacity Building Supports for XXWC. I have adjourned further consideration regarding any further amount that may be payable for reasonable necessary travel by therapists to deliver those supports.
This has meant that XXWC’s parents may be entitled to be reimbursed by the Agency to the extent of the additional funding if they submit receipts for any additional expenses they incurred over and above the amount provided for Early Childhood intervention in the Plan. For the reasons that I give below, that is a matter between them and the Agency and not a matter on which I can make any order or give any direction.
THE ISSUES
The XXWC’s parents and the Agency have agreed that XXWC’s statement of participant supports should be varied so that a further 18 hours of EIBI is approved for him. Their expert witnesses were all of the opinion that research supports a conclusion that EIBI is clinically effective and the younger a child is at the commencement of EIBI, the greater the benefits that the child is likely to achieve. They agree that a multidisciplinary team is more effective than therapy with professionals working in only one or two disciplines.
There continue to be three areas of difference between them. One lies in the blended or composite rate that is calculated and what is included in each rate. Dr Briggs of Best Start is of the view that it is neither possible nor safe for child therapists to work across all developmental areas without adequate “off-client” supervision and training from a certified Early Start Denver Model (ESDM) therapist for ESDM programs or a Board Certified Behavioural Analyst for Applied Behavioural Analysis (ABA) programs. That leads to an additional six hours and 18 minutes of planning, discussion and supervision over and above the work of therapists with the client.
The second area of difference centres on whether there should be a key worker coordinating the provision of the various services. XXWC’s parents submit that it is reasonable and necessary for a person separate from those delivering the supports involved in the delivery of ESDM to their son to coordinate the various programs. That involves discussions with XXWC’s parents and working with them over approximately 16 weeks. The Agency prefers a model where there is no provision for a key worker as such but a similar function is performed by a senior clinician.
The third area of difference turns on whether a psychologist should be costed as a separate item. The Agency’s position is that, at XXWC’s age and given the EIBI that he would receive, the input of a psychologist is not a reasonable and necessary support. XXWC’s parents do not agree.
The fourth area of difference cannot be resolved until the earlier differences are resolved. That involves the travel of the EIBI therapist and the travel of the key worker to XXWC’s home. Travel for both is favoured by XXWC’s parents but not by the Agency.
The Agency takes the position that the services comprised in the additional six hours and 18 minutes are components of the costings it has prepared for the 18 hours of EIBI each week. XXWC’s parents take the view that they are in addition to the costings for those hours. That leads to a higher blended rate. They ask that the sum of $136,403.12 be approved for Capacity Building Supports as reasonable and necessary supports for the period of the Plan. That sum is calculated on the basis of the delivery of EIBI according to the ESDM as recommended by the report of the Best Start Clinic (Best Start) dated 21 August 2018 and updated on 8 October 2018 (Best Start). It is costed on the basis of 18 hours of EIBI provided according to the ESDM together with an additional six hours and 18 minutes of planning, discussion and supervision. XXWC’s parents also seek the retention of the sum of $5,129.00 for Core Supports as currently shown in the Plan. I also note that the sum of $136,493.12 is based on the 2018/2019 NDIS Price Guide, which only applied to the last 23 weeks of the 48 weeks in issue in this case.
Relying on recommendations made in two reports prepared by Irabina Autism Services (Irabina) dated 24 February 2019 (Irabina report) and 2 April 2019 (supplementary Irabina report) the Agency has calculated the funding for that on the basis of the NDIS Price Guide relevant to the 25 week period from 12 December 2017 to 30 June 2018 (2017/2018 NDIS Price Guide) and that relevant to the 23 week period 1 July 2018 to 10 December 2018 (2018/2019 NDIS Price Guide).[3] It takes the position that the sum of $76,695.04 should be approved for Capacity Building Supports for XXWC.
[3] Exhibit 8
In addition and based on their figures, XXWC’s parents seek reimbursement of $47,922.38 for expenses they have incurred in providing Capacity Building supports in the context of the Plan. This was calculated on the basis that XXWC’s parents had spent $91,234 on Capacity Building supports during the term of the Plan. The Agency had funded $39,196.62 of that amount and claims submitted to Medicare recovered a further $4,115.00. The difference between what they had spent and what they had recovered was $47,922.38.
BACKGROUND
XXWC has two siblings, one of whom is approximately two years older and the other approximately three years older. Each of the children has been diagnosed with ASD as has their father. XXWC’s parents are professional people who work full-time in their own business. They employ full-time nannies to care for their children while they are working during the week as well as to assist at other times during the week and at weekends. Both nannies have experience with caring for children with ASD and actively work with them to support their development and treatment programs. XXWC has difficulties with his emotional regulation and cannot deal with the unexpected. If, for example, his father leaves his car in a different place because someone has parked in his usual place, XXWC becomes upset. The last year has seen some gains for XXWC.
Understandably, XXWC’s participant statement expresses his goals in terms of what his mother would like for him. Those stated in the Plan are:
“My First Goal is:
… [XXWC’s mother] would like … [XXWC] to develop self-care skills to enable him to achieve greater independence in the day-to-day routine. For example, assisting in dressing and sleeping in his own bed.
My Second Goal is:
… [XXWC’s mother] would like … [XXWC] to increase his receptive and expressive communication to enable him to express his needs and participate in conversation with peers and adults.
My longer term goals and aspirations are:
Goal: … [XXWC’s mother] would like … [XXWC] to develop his gross motor skills and balance to ensure his safe participation in home and community.
Relates to: Daily lifeGoal: … [XXWC’s mother] would like … [XXWC] to develop healthy eating habits and independent emotional regulation skills to allow him to manage his emotions in a positive manner.
Relates to: Daily LifeGoal: … [XXWC’s mother] would like … [XXWC] to develop his social skills to enable him to engage with and play with peers and adults. For example, making eye contact and joint attention.
Relates to: Daily life.Goal: … [XXWC’s mother] would like … [XXWC] to continue to receive support to enable them and their children to participate in day-to-day activities and to ensure that …[XXWC’s mother and father] are able to continue to provide support into the future.
Relates to: Daily life.”[4][4] T documents; T32 at 288
OUTLINE OF SUPPORTS SOUGHT BY WWXC
XXWC’s parents relied on Best Smart’s costing of ESDM, which it provides. The costing for that model was provided by Dr Briggs in her statement dated 13 June 2019. It is based on the 2018/2019 NDIS Price Guide, which applied to the last 23 weeks of the relevant 48 week period, and costed according to three hour blocks of attributable time (face-time). She has costed each block of EIBI as $265 or a ‘blended rate” of $88.33. I have calculated the figures in the chart Dr Briggs provided as producing a figure of $274.02 for each three hour block but the difference is a reflection of the fact that Best Start offers each three hour session at $265.00 if it is booked on a term basis and paid for monthly in advance. Sessions not paid for in advance or booked at a casual rate, are charged at a higher rate.[5] It is not a matter I need to focus on at this time. Travel time is not included in the costings. The figures provided by Dr Briggs, together with my calculation of the total cost, are:[6]
[5] Exhibit D at [7]-[8]
[6] Exhibit D; Annexure EB-148
Role title
Function/purpose of time
Rate per hour/NDIS Line Item
Number of Hours
Total
Early intervention behaviour therapist
Child facing therapy time
$45.66
15_052_0128_1_3
3
$136.98
Early intervention behaviour therapist
Team discussions/supervision/planning
$45.66
15_052_0128_1_3
0.4
$18.264
Key worker/senior therapist
Team discussions/supervision/planning
$182.74
15_052_0128_1_3
0.4
$73.096
Occupational therapist
Team discussions/supervision/planning
$182.74
15_052_0128_1_3
0.1
$18.274
Speech therapist
Team discussions/supervision/planning
$182.74
15_052_0128_1_3
0.1
$18.274
Psychologist
Team discussions/supervision/planning
$182.74
15_052_0128_1_3
0.05
$9.137
TOTAL
$274.025
ZZWC’s parents have presented the same information for a 48 week year based on the 2018/2019 NDIS Price Guide and including travel time:
Event
Hours/trips per week
Weeks per year
Quantity per annum
Rate per hour/per trip
Total
Parent session with key worker
1
48
48
$182.74
$8,771.52
Key worker/child observational session
1
48
48
$182.74
$8,771.52
ESDM therapist
6 x 3 hour sessions = 18
48
864
$88.33
$76,317.12
Occupational therapist
1
48
48
$182.74
$8,771.52
Speech therapist
1
48
48
$182.74
$8,771.52
Psychology
1
12
12
$182.74
$2,192.88
Travel EIBI therapist
12 trips
48
576
$29.44
$16,959.36
Travel key worker
2 trips
48
96
$60.91
$5,847.68
Total
$136,403.12
The Agency has re-costed these services according to the two relevant NDIS Price Guides covering the relevant period 48 week period of the Plan from 12 December 2017 to 10 December 2018 and including travel time:
Event
Hours/trips per week
Weeks per year
Quantity per annum
Rate per hour/per trip
NDIS Price Guide in effect
Total
Parent session with key worker
1
25
25
$175.57
2017/2018
$4,389.25
Parent session with key worker
1
23
23
$182.74
2018/2019
$4,203.02
Key worker/child observational session
1
25
25
$175.57
2017/2018
$4,389.25
Key worker/child observational session
1
23
23
$182.74
2018/2019
$4,203.02
ESDM therapist
6 x 3 hour sessions = 18
25
25
$85.31
2017/2018
$38,389.50
ESDM therapist
6 x 3 hour sessions = 18
23
23
$91.34
2018/2019
$37,814.76
Occupational therapist
1
25
25
$175.57
2017/2018
$4,389.25
Occupational therapist
1
23
23
$182.74
2018/2019
$4,203.02
Speech therapist
1
25
25
$175.57
2017/2018
$4,389.25
Speech therapist
1
23
23
$182.74
2018/2019
$4,203.02
Psychology
1
6
6
$175.57
2017/2018
$1,053.42
Psychology
1
6
6
$182.74
2018/2019
$1,096.44
Travel EIBI therapist
12 trips
25
300
$85.31 p/hour x 20 mins = $28.44
2017/2018
$8,532.00
Travel EIBI therapist
12 trips
23
276
$91.34 p/hour x 20 mins = $30.45
2018/2019
$8,404.20
Travel key worker
2 trips
25
50
$175.57 x 20 mins = $58.52
2017/2018
$2,926.00
Travel key worker
2 trips
23
46
$182.74 x 20 mins = $60.91
2018/2019
$2,801.86
Total
$135,387.26
OUTLINE OF AGENCY’S POSITION REGARDING FURTHER SUPPORTS FOR EIBI
The Agency adopted the position that XXWC’s statement of participant supports should be varied so that a further 18 hours of EIBI is approved for him. It has done so on the basis of a recommendation made in two reports prepared by Irabina Autism Services (Irabina) dated 24 February 2019 (Irabina report) and 2 April 2019 (supplementary Irabina report) respectively. The funding model recommended in the Irabina report recommends 18 hours of EIBI per week for XXWC at $63.33 per hour. That I will return to the basis of its recommendation and the calculation of the hourly rate below but note for the moment that it is a blended rate reflecting the items identified separately in the table below.
As I said earlier, the Agency accepted Irabina’s recommendation as to the manner in which EIBI is provided, the Agency has calculated the funding for that on the basis of the NDIS Price Guide relevant to the period from 12 December 2017 to 30 June 2018 (2017/2018 NDIS Price Guide) and that relevant to 1 July 2018 to 10 December 2018 (2018/2019 NDIS Price Guide).[7]
[7] Exhibit 8
Service
Frequency
Rate
Cost
For the period 12 December 2017 to 30 June 2018
Based on 25 weeks
Initial assessment costs
Once
Direct clinical time x 1.5 hours:
1. Behaviour therapist: $41.71 p/h
2. Senior clinician: $175.57 p/h
Indirect clinical time:
1. Senior clinician: $175.57 p/h x 4.5 hours
2. Behaviour therapist: $41.71 p/h x 1.5 hours
$1,178.55
EIBI
18 hours per week (25 weeks per year)
Rate of $59.81 per hour based on three hour block consisting of:
1. Behavioural therapist: $41.71 p/h x 3 hours;
2. Senior behavioural therapist: $41.71 p/h x 15 minutes; and
3. Senior clinician: $175.57 p/h x 15 minutes.
Calculation:
($41.71 x 3.25 hours) + ($179.45 x 0.25) = $59.81 p/h
$26,914.50
OT
Weekly
(25 weeks per year)$175.57 per hour
$4,389.29
Speech pathology
Weekly
(25 weeks per year)$175.57 per hour
$4,389.29
Parent review meetings
Monthly (6 per year)
$410.35 per session, comprising:
Direct appointment with client x 1 hour:
1. Behaviour therapist: $41.71 p/h
2. Senior behaviour therapist: $41.71 p/h
3. Senior clinician: $175.57 p/h
Indirect clinical time:
4. Senior behaviour therapist: $41.71 p/h x 1.5 hours
5. Senior clinician: $182.74 p/h x 30 minutes
$2,462.10
For the period 1 July 2018 to 10 December 2018
Based on 23 weeks
EIBI
18 hours per week (48 weeks per year)
Rate of $64.70 per hour, based on three hour block of support consisting of:
1. Behaviour therapist: $45.66 p/h x 3 hours
2. Senior behaviour therapist: $45.66 p/h x 15 minutes; and
3. Senior clinician: $182.74 p/h x 15 minutes.
$26,785.80
OT
Weekly
(48 weeks per year)$182.74 per hour
$4,203.02
Speech pathology
Weekly
(48 weeks per year)$182.74 per hour
$4,203.02
Parent review meetings
Monthly (6 per year)
$433.91 per session, comprising:
Direct appointment with client x 1 hour:
1. Behaviour therapist: $45.66 p/h
2. Senior behaviour therapist: $45.66 p/h
3. Senior clinician: $182.74 p/h
Indirect clinical time:
4. Senior behaviour therapist: $45.66 p/h x 1.5 hours
5. Senior clinician: $182.74 p/h x 30 minutes
$2,169.55
Total
48 weeks per year
$76,695.04
THE EVIDENCE
Report for Department of Families, Housing, Community Services and Indigenous Affairs
Professor Margot Prior and Professor Jacqueline Roberts reviewed developmental/behavioural learning-based interventions for children under the age of seven years in their paper entitled “Early Intervention for Children with Autism Spectrum Disorders: ‘Guidelines for Good Practice’ 2012” (GGP Paper). They explain that:
“Autism is a neurodevelopmental disorder beginning at birth or shortly after. The characteristic symptoms have been described as a triad of impairments involving delay and deviance in social and communicative development, along with restricted interests and repetitive behaviours. Certain sensory, motor and cognitive characteristics are also associated with autism.
The term Autism Spectrum Disorders (ASD) covers diagnostic labels which include Autistic Disorder, High Functioning Autism, Asperger Syndrome, and Pervasive Developmental Disorder – Not Otherwise Specified (PDD-NOS). Children with these labels all share the social and communicative symptoms which are the core of autism, but they vary in severity of symptoms and in level of functioning.
No specific cause has yet been identified although there is growing evidence that autism may be inherited to a significant degree. To help children with autism it is essential to focus on the earliest years of development, since this is a critically important time for early learning which powerfully affects the child’s future life course.”[8]
[8] T documents; T5 at 32
Their GGP Paper was prepared for the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) following a review of the current evidence of outcomes for early intervention for children with autism. It updates the review that the authors had previously conducted with their colleagues for the Department of Health and Ageing (DoHA) in 2006.
Professors Prior and Roberts note the rapid increase in the types of programs and interventions available for children with autism together with a substantial increase in the amount of research into the outcomes of interventions over the previous six or seven years. They emphasised the importance of evidence-based treatment guidelines in an area where various treatments have been well-promoted but have lacked scientific evidence for their effectiveness and even for their not being harmful. Both parents and professionals need to be aware of the guidelines for good practice in autism intervention and the extent to which the rationale for any proposed intervention is based on research evidence about autism.
The GGP Paper describes six interventions based on learning for children with autism:
“Behavioural Interventions
Focus on application of learning theory and skill development. Use of Applied Behaviour Analysis (ABA). Example: Pivotal Response Training (PRT)
Developmental Interventions
Focus on development of social emotional capacities. Example: Relationship Development Intervention (RDI)
Therapy Based Interventions
Focus on communication and social development or sensory motor development. Usually designed for use with other interventions. Example: Picture Exchange Communication System (PECS).
Combined Interventions
Incorporate behavioural and developmental strategies. Often include sensory issues. Focus on working with and managing the characteristics of autism. Examples: TEACCH (Treatment and Education of Autistic and Communication Handicapped Children, Early Start Denver Model (ESDM).
Family Based Interventions
Focus on working with families to develop skills in working with their children. Example: The Hanen Program.
Other Interventions
Example: Music Therapy.”[9]
[9] T documents; T5 at 34
Professors Prior and Roberts reported that evidence from high quality intervention trials is somewhat inconsistent. There are few studies that are able to show whether real improvements have been made as a direct result of the interventions carried out. There is little well documented information about potential adverse treatment outcomes and few studies that rigorously assess the cost benefit of treatments. Some interventions have been proven to be ineffective, the authors noted, and should be avoided. As for others:
“High intensity interventions which address the child and family’s clearly documented needs, using behavioural, educational and/or developmental approaches have been shown to be the best of currently available early interventions. Research has consistently shown good outcomes for intensive ABA programs and there is growing evidence that intensive developmental and combined programs are also effective.
…
Reviewers of programs remain cautious in their conclusions about longer term outcomes for children with autism, in social, adaptive or vocational areas, or greater independence in adulthood. There are too few well controlled studies to allow for confident claims about what types of intervention are best for improving long term learning and adaptive functioning.”[10]
[10] T documents; T5 at 35
Key elements identified in the GGP Paper as being necessary for effective intervention are:
“· An autism specific curriculum content focusing on attention compliance, imitation, language, and social skills.
·Highly supportive teaching environments which deal with the need for predictability and routine, and with challenging behaviours, obsessions, and ritual behaviours.
·Support for children in their transition from the preschool classroom.
·Support for family members via parternship with professional involved in treatments.”[11]
[11] T documents; T5 at 35-36
The amount of intervention is generally recommended for between 15 and 25 hours per week with some recommending up to 40 hours per week. Quality is as important as quantity and intensity, timing and duration should be based on individual needs. No one program will suit every child for each will have different patterns of strengths and needs. Good practice principles that are fundamental to working with children and their families include assessment for intervention planning, an individualised program based on strengths and needs of the child and regular review and an evaluation and adjustment of program. The assessment should address a child’s strengths and needs in all relevant areas including communication and cognitive development) and should guide intervention content and provide information about the best techniques for that child. An individual plan should be developed for each child by all those involved including family, early intervention providers and preschool or child care services.
This is consistent with the later report by Professor Roberts with Professor Katrina Williams in February 2016 for the Agency. It is entitled “Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers”.[12] No two children are the same, the authors reported. Consequently, interventions needed to be adapted to suit each child’s autism characteristics, their abilities, their environment and their parents’ priorities and values.[13]
[12] Exhibit E
[13] Exhibit E at 19
The GGP Paper goes on to develop key elements of effective intervention for children with autism. Of particular relevance in this case is the paper’s reference to a multi-disciplinary approach:
“Effective programs are multidisciplinary and collaborative. Assessments and programs are provided by a number of individual service providers, such as speech pathologists, psychologists and teachers, who need to communicate and collaborate with each other to develop goals, provide intervention and evaluate progress.”[14]
[14] T documents; T5 at 40
Reports by Best Start and Irabina: a focus on ESDM and ABA
XXWC’s parents asked Best Start to prepare a report regarding the therapy that XXWC has been receiving from it. The report was prepared by Best Start’s Manager, Dr Elizabeth Briggs, and its Community Program Coordinator and certified ESDM therapist, Ms Margaret-Ann Brennan. Dr Briggs has a Bachelor of Arts and Sciences, a Bachelor of Behavioural Sciences (Psychology) (Honours) and a Doctorate of Clinical Psychology. She is a registered Psychologist (Clinical) and a registered Psychology Supervisor as well as a member of the Australian Psychology Society and Autism Diagnostic Observation Schedule trained. Ms Brennan has an undergraduate and a Masters degree in psychology. In May 2019, she became a certified ESDM therapist and has worked with XXWC since July 2017. She first worked with him in her capacity as an EIBI therapist and then, from April 2018, as a key worker. Certification of Ms Brennan required her to have, in addition to her tertiary qualifications, 1,500 hours of relevant experience working with children with autism while being certified by a certified behaviour analysist. During those hours, she had to demonstrate, and satisfy her supervisor, of her skills.
The report written by Dr Briggs and Ms Brennan is dated 21 August 2018 and updated on 8 October 2018. Given that, unlike Best Start, Irabina has not provided any therapy for XXWC in the past, it is understandable that their reports are written from slightly different perspectives. Best Start is able to address the progress that XXWC has made in the context of the delivery of ESDM therapy. That of Irabina sets out its observations of XXWC’s receptive and expressive language skills, social skills and nonverbal communication, play, behaviour, sensory processing, motor skills and self-care/daily living skills before making recommendations as to future therapy according to the ABA model.
The report of Best Start is focused on the goals that it has put in place and then describes the intervention put in place to achieve that goal and the progress that XXWC has made in relation to each of them. The goals are to: improve XXWC’s in-hand manipulation and refined body awareness within his hands so that he can demonstrate and complete fine motor activities; improve XXWC’s spatial awareness and balance (through vestibular input), so he can sustain one leg off the ground for 5 – 10 seconds and complete gross motor activities appropriate to his age; improve XXWC’s body awareness, extensor muscles, core and upper limb strength, so that he can maintain an upright posture when sitting at a table for at least ten minutes; to develop XXWC’s cognitive skills to be able to understand different concepts and engage in tasks; XXWC will independently respond to a peer’s requests and take turns with simple action toys; XXWC will independently be able to gain communication partner’s attention by using name of person or game and initiate activity or communication exchange; and XXWC to progress with social skills and play development.
Putting aside details of whether the support should be provided according to ESDM or not, both reports favour supports in the nature of EIBI for XXWC. Irabina’s reasons for their recommendations are broadly consistent.[15] Irabina expressed its reasons in this way:
“The existing scientific evidence suggests that the best-practice model to support young children with autism spectrum disorder is that which is based on the early diagnosis of the disorder, and the provision of intensive, behavioural therapy as early as possible, particularly in the preschool years. Research indicates that the interventions that are most effective are commonly those that are provided at a sufficient level of intensity (15-25 hours per week) for at least a year. In addition to the early intervention program, it is considered that appropriate support for the family should be provided, usually in the form of parent training.’[16]
[15] Exhibit A at 11-12
[16] Exhibit 4; Question 2)
Best Start was able to draw in its experience with XXWC to explain its reasons:
“… [XXWC] has made terrific gains under his NDIS funded ESDM program as well as psychology sessions, speech pathology, and occupational therapy. Due to evidence-based intensive hours … [XXWC] has been receiving, progress and outcomes have been consistently increasing. On commencement of … [XXWC’s] EIBI program, … [XXWC’s] skill level was within the domains of Level 1 and Level 2 of the ESDM [Early Start Denver Model] curriculum checklist …, … [XXWC’s] skills have been developed within the range of Level 3 … This improvement has been due to the consistent practice of the skills listed in this review to ensure that … [XXWC] develops strong independent foundation skills. It is common for children with ASD to experience challenges generalising skills across environments, tasks, and with different adults, it is therefore extremely important that … [XXWC] continues to receive the same evidence-based intensive hours to develop skills that maintain and generalises across environments and individuals.
… [XXWC’s] functional capacity and social development has significantly improved, but is still below what is expected for his age. … [XXWC] still experiences challenges to demonstrate skills in social settings with peers which has a impact on his participation in the community and underlying skill deficits that contribute to his social, personal independence, motor, emotional, behaviour, communication and cognitive difficulties stemming from his Autism Spectrum Disorder. In order for … [XXWC] to continue to progress towards his developmental milestones it is important that he maintains the same evidence based intensive program. Providing sufficient therapeutic intervention and training and support to … [XXWC’s] support staff and family is a cost effect support to ensure … [XXWC] will progress with his skill development, achieve his goals and intervention strategies are effectively faded out and generalised to everyday life.
I strongly recommend that … [XXWC] continue to receive allied health services consisting of monthly psychology, weekly occupational therapy and weekly speech pathology, as well as minimum of 20 hours of Intensive Behaviour Therapy in home, social, and community settings to help facilitate social interactions, participation and communication at home and during community and social activities, continue to build functional skills and daily-living skills, with supervisor involvement to oversee the program and provide support and training to … [XXWC’s] family and other carers.
This recommendation are [sic] in line with what evidence suggests is most conducive to continued improvement (i.e., increased frequency and length in treatment) in order to develop optimal skills towards the goals described.”[17]
[17] Exhibit A at 10-11
There was some focus on the ESDM and its appropriateness as a vehicle for the provision of the EIBI support but only in so far as it requires a key worker to coordinate the input by each specialist. Best Start referred to the considerable empirical evidence that supported a conclusion that the principles and teaching strategies followed in the ESDM could result in substantial and sustainable functional improvements to children with developmental delay. Research conducted by the Agency identified the number of intensive hours (15 to 25) per week, a comprehensive and individualised program addressing all skill domains and one-to-one teaching format and one-on-three for group intervention as three of the important components contributing to the effectiveness of EIBI.[18] Since April 2018, XXWC has undertaken a comprehensive EIBI program starting at ten hours per week and increasing to 19 hours of therapy. That therapy followed the ESDM model with a weekly speech pathology session, weekly occupational therapy and monthly psychology sessions in his home and community environment.[19] Following the ESDM model, Best Start has also provided, since July 2018, on average, three hours per week focused on training and supporting XXWC’s parents and nannies in strategies to promote skill development in everyday routines.
[18] Exhibit A at 11-12
[19] Exhibit A at 2
Irabina was of the view that:
“Based on the clinical evidence provided, as well as parental report, it is our assertion that the participant has benefited greatly from the support received so far through an Early Start Denver Model (ESDM) program. The ESDM program is an evidence-based intervention model for children with Autism with ages ranging from 12 months to 60 months, and there is extensive research suggesting it is an effective model to support skills acquisition and overall development in this population.
However, it is our opinion the due to the complexity of … [XXWC’s] family unit (i.e. multiple children with disabilities, with comorbid behavioural problems), the family would benefit from additional support in behaviour management that potentially exceeds the scope of the ESDM intervention. We are in agreement that the best intervention model for … [XXWC] will be that which combines early intensive behavioural support aimed at developing his skills with structured, regular parent training focused not only on skill acquisition goals, but also on the management of the significant behaviours of concern displayed by … [XXWC] and his siblings.”[20]
[20] Exhibit 4; Question 6
Although the two reports agree that EIBI for 18 hours per week is a reasonable and necessary support for XXWC, they disagree on the way EIBI is provided and the manner of its funding. Best Start adopts the ESDM program and Irabina favours ABA therapy. The case is not, however, concerned with which is the better program for, as is clear from the report of Irabina, there is respect among professionals for both programs and both are directed to delivering EIBI. Differences lie in the costing models adopted by each and from the requirement of the ESDM to cost separately a key worker to coordinate its specialists.
Best Start and ESDM
Dr Briggs works in her clinic, Best Start, as part of a multidisciplinary team supporting children with ASD and their parents. Therapies that she has found to be effective include Cognitive Behaviour Therapy, Behaviour Intervention and Acceptance and Commitment Therapy. Best Start focuses on improving core challenges for children with ASD in communication, social interactions and restricted behaviours to help them to develop greater functional skills and independence. Most of the children are under seven years of age with the majority being pre-school aged. Most of them participate in an ESDM or an ABA program.
Dr Briggs said that, for every hour of EIBI that a behavioural therapist spends with a child, a lot more time is spent by the therapist with others to deliver that hour. She set out what she described as “non-attributable time activities”:
“… carried out by various members of a multidisciplinary team to deliver the attributable Behaviour Therapy time include:
a.Session planning
b.Team meetings regarding the child
c.Key worker direct supervision of the therapist
d.Consulting with the key worker regarding an ad hoc problem or observation
e.Meetings with parents regarding goals, expectations and areas of concern.
f.Discussing strategies and ideas with parents they can continue/implement
g.Developing detailed goals and written plans, updated on a regular basis
h.Reviewing data taken by a therapist (supervision/quality)
i.Analysing data taken in sessions, updating and checking progress against goals
j.Developing strategies to address specific behaviours of concern
k.Communication with other stakeholders
m.Case conferences regarding the child
n.Making resources for use during the session
o.Making tools such as visual planners and social stories for out-of-session use by child and family
p.6 to 10 hours of child specific training delivered by the Certified ESDM therapist to a Behavioural Therapist each time a Behavioural Therapist commences work with a new child.
6.This does not include time spent in:
a.Actively coaching parents and carers (parent/carer training sessions) in how to use and re-inforce strategies or manage the children, for example by role play and observations with the key worker
b.Direct observations and therapy time (child face-time) with the key worker/Certified ESDM professional
c.General organisation, discussions with parents, carers, kindergartens etc about the logistical side of actually delivering the therapy with times, places and relevant permissions e.g. to be on kindergarten grounds, reviewing written contracts regarding continued access and other paperwork.
d.‘overhead’ type activities including professional development such as regular cross-training from other qualified allied health professionals in different areas of the child development, and the like.”[21]
[21] Exhibit D at [5] and [6]
The flat rate of approximately $45 for a “therapy assistant” is not tenable for delivery of therapy by a multidisciplinary team. The rate is calculated on the basis of attributable face- time with the child. It does not nearly cover the non-child facing time also spent by a multidisciplinary team to deliver an individualised program to the child. Ms Brennan from Best Start is of the opinion that ESDM requires greater consultation to ensure that goals are individualised and to remove barriers to communication. ESDM requires one or two therapists to deliver block therapy with a key worker assessing the child each 12 weeks and the delivery of the program by the occupational therapists, who are focused on learning and finer motor skills, speech therapists and psychologist.
A psychologist is required to review a child’s cognitive development and to provide strategies and emotional regulation as well as to review the child’s overall development, to obtaining parents’ reports and assisting in the development of strategy. He or she will conduct a psychology therapy session with the child. That happens once a month and is in addition to the blended rate. Ms Brennan agreed with Dr Foley of counsel for the Agency that sitting down with XXWC and interacting with things and playing games and interacting with his parents would be the sort of work already being done in the three hourly blocks of therapy sessions. She said that they were necessary, however, because the psychologist provides feedback to assist with the approach taken during those three hour blocks. The psychologist needs face-time with the child alone to enable him or her to develop strategy to be incorporated in the program. That should be done every month, Ms Brennan said. Even though there are therapists in the team who have qualifications in psychology, but their qualifications may not be those of a clinical psychologist. Her qualifications, for example, are academic and do not, Ms Brennan said, do not equate to those of a clinical psychologist.
Three monthly reviews by a psychologist would be too widely spaced, Ms Brennan said, for Best Start reviews its goals for each child every fortnight. It could not wait for the 12 weekly review that was concerned with overall goals. Adjustments had to be made to the five or six learning steps in the overall goals every two weeks. Ms Brennan did not agree with Dr Foley’s suggestion that XXWC is too young to be involved in a therapy session with a psychologist.
The occupational therapist’s role varies across each three month period of the delivery of the program. Provision is made for six minutes of team discussions and planning with the occupational therapist for six minutes in each three hour block. At the start, the occupational therapist might be involved in assessing motor skills and the like. Each week there is discussion of how the therapy went that week. A lot of people are involved in the discussion because it is a multidisciplinary approach and there must be consistency. Much depends on the progress of the child. Goals are moved according to that progress. Provision is also made in the funding for the occupational therapist to have face-time with the child.
Ms Brennan said that the key worker and the senior therapist are one and the same and must be a certified ESDM therapist. That person first decides on goals, writes the steps necessary to achieve those goals and delivers them to the team and then supervises the program and supports the therapists.
Ms Brennan said that the services of a speech pathologist are required for six minutes for the delivery of each three hour block of therapy. That is six minutes in addition to therapy provided during the three hour block. Ms Brennan said that, each week, a speech pathologist looks at data that has been collected during each of the three hour blocks delivered in the previous week. She said that the data had to be translated into the therapy that was to be delivered in the following week. In all, Ms Brennan agreed, six hours and 18 minutes of non-face time with a child is required for the delivery of 18 hours face-time under ESDM.
Ms Brennan said that there are differences between those delivering ESDM and those delivering ABA. ABA, she said, may be delivered by a person who may have completed a technician’s course. ESDM, on the other hand, requires much more extensive training concluding with shadowing another therapist and then demonstrating the skills in a practical sense. Once trained, the therapist is expected to deliver a range of different strategies developed by speech pathologists, occupational therapists and psychologist. Traditional ABA, on the other hand, requires that those who deliver it do so on instruction. They learn three areas only whereas there are ten in all that should be focused upon. ESDM requires greater skills and delivers greater outcomes, in Ms Brennan’s opinion. Fifteen minutes for a senior therapist and senior clinician for each three hours of face-time, as the model favoured by Irabina would have, does not leave sufficient time to talk with those involved.
Dr Briggs said in giving evidence that ESDM is the only evidence-based intervention for toddlers. She explained that the therapy is directed to each professional working individually with the child and delivering objectives. She said that delivery incorporated the efforts of all team members. A qualified therapist will provide therapy for a child, the key worker regularly reviews the objectives and looks at progress. Training has to be provided to the team. The occupational therapist, the psychologist and the speech pathologist are consulted and develop and form the objectives and ensure the child is working towards them. There must be allied health team meetings, the objectives must be created and updated and there must be consultation with the family as well as providing the family with resources to use outside the therapy sessions. It required every single team member to work together.
Dr Briggs said that she would not describe the EIBI offered by Irabina as ESDM. She would not describe it as being offered by a multi-disciplinary team. It would, in her opinion, be irresponsible to run an EIBI program without a psychologist having face to face time with the child. Regular monitoring of a program is required and a child’s needs and rate of development must be recognised and goals adjusted. A psychologist needs to see a child and not simply talk with therapists about that child. Sessions with a psychologist look much like any sessions run by any other therapist. The psychologist interacts and plays with the child while assessing their motor skills, their verbal and non-verbal communication, cognitive development and such-like. A therapist who is not a psychologist could not do this because a psychologist has nine years of education in terms of knowledge of cognitive development and mental health concerns and phobias. The diagnostic approach requires a clinical psychologist. To give a practical example, Dr Briggs referred to the meltdowns and frustration that XXWC experiences. Therapists are trained to roll out a program and do not need to think about strategies and recommendations, both for the child and the family, with regard to behavioural control. If a psychologist had not met XXWC, it would be hard to develop tailored strategies and recommendations.
Dr Briggs rejected a suggestion that ESDM as delivered by Best Start can be regarded as “gold plated” or that similar results could be achieved with reduced face-time. She said that the more time the better but that there was no evidence that anything above 40 hours per week was useful. In Australia, Dr Briggs said, there is no minimum requirement to become an ABA therapist but there is to become an ESDM therapist.
Her evidence regarding the time required by members of a multi-disciplinary team both with the child and in discussions was in terms similar to that given by Ms Brennan. ESDM would not work outside that model. Her position is supported by a report by Dr Roberts, Dr Briggs said, but acknowledged that she was not aware of any peer-reviewed article referring to the number of hours required to deliver ESDM. If there were any study of a program delivering EIBI that did not require allocated non-face time, that program would not be ESDM because it needs some allocated non-face time with the child. Dr Briggs said that her knowledge of that was based on her clinical experience and on ESDM guidelines. She had no knowledge of the way in which other clinics based in Victoria and offering ESDM broke down their hours. Best practice requires that any clinic deliver ESDM in the way it is delivered by Best Start.
If a family were to come to her with funding for 18 hours of face-time for EIBI and only three hours (not six hours and 18 minutes) of non-face time, Dr Briggs said that she would not turn their child away. She would develop an individual program for the child where the face-time therapy and non-face time planning, coordinating and the like were delivered in the same proportions as they are for the delivery of an 18 hour program with six hours and 18 minutes non-face time. If the funding were fixed and could not be adjusted from one to the other, Dr Briggs would develop a program for the child delivering 18 hours of therapy but it would not be ESDM.
In her statement dated 13 June 2019, Dr Briggs said that Irabina is a charity and that, like many other non-government agencies (NGOs) receives block funding or grants from the Agency. That funding is in addition to fees paid to it by families using their NDIS funding. Block funding enables Irabina to operate without full recovery of its costs from the families. When challenged in cross-examination on her statement, Dr Briggs acknowledged that she had no knowledge of Irabina’s taxation status or of its financial modelling. She felt able to make her statement because Irabina is a charity that gets topped up with government funding. That was information she had because she is aware of other providers in the industry and that is widely understood to be the position in the industry. She had no personal knowledge.
Dr Briggs thought that Best Start is competitive with the rates charged by other ESDM providers in Melbourne. She was aware that they provided between 15 and 25 ours of face-time but could not comment on the non-face time they built into their programs.
Irabina and ABA
The Agency asked Irabina to prepare a report regarding XXWC’s current areas of need and a suitable intervention plan for him and his family. Dr Jose Molina-Toleda (Dr Molina), Irabina’s Clinical Director, and Ms Sara Donoghue, Irabina’s Senior Speech Pathogist, prepared that report on 24 February 2019 after XXWC and his mother attended an intake appointment at Irabina on 19 February 2019.
Dr Molina has a doctorate in psychology following a Masters degree in clinical psychology following an undergraduate degree in clinical psychology. At the time of the hearing, he was studying for a Masters of Education in Behavioural Analysis. Dr Molina is an Honorary Fellow in the School of Education at the University of Melbourne. He received training in ABA during a supervised placement as part of his doctorate. Once he had completed his training, he went on to practise as an ABA therapist because he wanted to extend his knowledge. He was already a Clinical Psychologist. He has supervised ABA programs at Irabina and, in collaboration with others, developed an ABA program that is now being run by a large team of people. Dr Molina is no longer involved in running that program. Dr Molina also completed the training to become an ESDM therapist and worked as an ESDM therapist for two or three years. Certification requires that he comply with certain requirements to maintain it. Dr Molina has not done so as his duties do not require that he be a direct provider of ESDM services. In all, he has spent up to nine years working with children with autism.
Irabina, Dr Molina said, provides a large number of services. Until five years ago, Irabina was an early intervention centre. It then changed to include all paediatrics so that it now provides services, which are mostly focused on skill apposition from time of the child’s diagnosis to 21 years of age. Irabina supports families with different models that include parent counselling and training. It also engages with schools for training and holds workshops for the public. As Clinical Director of Irabina, Dr Molina works closely with those in the field and provides input into the development of the programs that it implements and also oversee all clinical activities.
As to Irabina’s charitable status, Dr Molina said that it is a registered charity and a not for profit agency. Clients use their own funding, whether from the NDIS or otherwise, to gain access to an Irabina program. Irabina does not receive any form of separate subsidy from a government agency for its ABA program. That program is structured around the prices in the NDIS Price Guide published by the Agency. It is financially viable.
In cross-examination by XXWC’s father, Dr Molina was asked about the reference to “NDIS Funding” in Irabina’s Financial Statements for the year ended 30 June 2018. In Note3, “NDIS Funding” of $91,555.00 was shown as a source of revenue and other income. Dr Molina is not Irabina’s Chief Financial Officer (CFO) but he does work with the CFO to ensure that each program is viable from a financial point of view. Things have changed since then, Dr Molina said. In that financial year, there was block funding from the Department of Education and Training known as “ECIS funding”. That is no more and no child at Irabina is receiving it. Irabina does receive some separate funding but it is for allocated to specific programs such as research and be directly funded. No funding is provided by the Agency for ABA or other specialist therapy programs. NDIS funding is provided to the families. Irabina does not receive any top up funding from the Agency in order to stay afloat.
Ms Donoghue wrote the speech and language component of the report and Dr Molina answered the questions. The report sets out their opinions. Irabina’s report noted XXWC had previously been enrolled in the ESDM program run at the La Trobe University. Due to significant difficulties XXWC experienced when separating from his parents at drop-off time for the program, his parents chose for an in-home program instead. XXWC attended Occupational Therapy and State Therapy in the clinic environment at Best Start. He is able to attend these therapies without the support of a nanny or parent in the session. Earlier in 2019, XXWC also commenced a three-year old kindergarten program. At the time of his appointment with Irabina, XXWC had attended one session without the support of a therapist or familiar 1:1 carer.
Dr Molina and Ms Donoghue considered seven areas: receptive and expressive language skills; social skills and nonverbal communication; play; behaviour; sensory processing; motor skills; and self-care/daily living skills. Based on their observations, they recommended that XXWC would benefit from:
“Early Intensive Behaviour Intervention
·Intensive individual behaviour therapy (Applied Behaviour Analysis)
Individual Intervention Services
·Speech Pathology
·Occupational Therapy
Specialist Programs
·Brief Behaviour Intervention (BBI)
·Parent Training (RUBI)
·Safety and Behaviour Response (SABR)”[22]
[22] Exhibit 4
At Appendix B to their report dated 24 February 2019, Dr Molina and Ms Donoghue provided further information on their recommendations and gave costings:[23]
[23] Exhibit 4; Appendix B
Service
Frequency
Cost
Early Intensive Behaviour Intervention
18 hours per week
Initial assessment and program development
$1,141.50Hourly rate
$63.33 (includes ongoing clinical consultation and program review)Parent Review Meetings
$426 (x 11 meetings)Individual Intervention Services
Speech Pathology
Weekly
$179 per hour
Occupational Therapy
Weekly
$179 per hour
Specialist Programs
Brief Behaviour Intervention (BBI)
10-week program
$7,240 (plus travel costs)
Parent Training (RUBI)
16-week program
$5,728
Safety and Behaviour Response (SABR)
1-day training
$580
Total cost for 12-month period (based on 48 weeks of service)
$91,276.62
The Agency asked Irabina to provide further details of the Specialist Programs identified in the previous paragraph. Ms Donoghue provided that information in the following table:[24]
[24] Exhibit 6
Program
Hours in program
NDIS Line Item
Qualification of Clinician
Brief Behaviour Intervention (BBI)
10-week Program, each weekly session consists of:
· 2 hours direct support with client and caregivers in the agreed environment (e.g., home or clinic)
· 2 hours indirect support (e.g. report writing, program development, data analysis)
· 1 hour program review and oversight by clinical specialist
At the completion of the program the following is charged:
· Final report – 3 hours total
11_022_0110_7_3
11_023_0110_7_3And/or
15_040_0118_1_3
Registered Psychologists or Provisional Psychologist**
Program review and oversight provided by our clinical specialist who is a registered clinical psychologist. Where the child’s NDIS plan has “Specialist Behaviour Intervention” included, we would charge the specialist rate of $200 per hour for this.
This report is jointly written by the registered psychologist (or provisional psychologist)** and clinical specialist.
Parent Training (RUBI)
16-week program, each weekly session consists of:
· 1 hour 40 minutes direct with the parents
· 20 minutes indirect (e.g., report writing and planning)15_048_0128_1_3
15_040_0118_1_3
Or
11_022_0110_7_3
11_023_0110_7_3Registered Psychologist
Safety and Behaviour Response (SABR)
1-day training
Direct:
· 4 hours behaviour therapist
Indirect:
· 2 hours registered psychologist
15_052_0128_1_3
and
15_048_0128_1_3
15_040_0118_1_3
Or
11_022_0110_7_3
11_023_0110_7_3
Behaviour Therapist (refer to previous document for specific qualifications)Registered psychologist (charged at specialist rate of $200 per hour if this is included in the child’s plan)
**Provisional psychologist rate is $120 per hour.
Ms Donoghue also provided further information regarding the Early Intensive Behaviour Intervention service identified in the table at [60] above:[25]
[25] Exhibit 6
Program
Hours in program
NDIS Line Item
Quantification of Clinician
Behaviour Therapy Initial Assessment and Program Development
Direct Costs:
1.5 hours of direct appointment with client and caregiver/s (clinician and senior therapist present)
Indirect Costs
4.5 hours indirect clinical time – scoring assessment, report writing, liaising with senior ABA therapist to develop child’s initial program
1.5 hours indirect for senior therapist – liaising with clinician to develop child’s initial program15_052_0128_1_3
And
15_048_0128_1_3
15_040_0118_1_3
Or
11_022_0110_7_3
11_023_0110_7_3Allied Health Professional trained in ABA and relevant assessments (e.g. psychologist)
Senior Behaviour Therapist …
Behaviour Therapy Parent Review Meetings
Direct Costs:
1 hour direct appointment with client and caregivers (clinician, senior behaviour therapist and behaviour therapist present)
Indirect costs:
1.5 hours program planning (senior behaviour therapist)
0.5 hours program planning clinician)15_052_0128_1_3
And
15_048_0128_1_3
15_040_0118_1_3
Or
11_022_0110_7_3
11_023_0110_7_3Allied Health Professional with relevant behaviour intervention experience
Senior Behaviour Therapist
Behaviour Therapist(… see report for description of qualifications)
In a further table, Ms Donoghue costed the Early Intensive Behaviour Intervention service. It is costed on the basis of a three hour block of intervention invention. The total cost of each block offered by Irabina at is $190. It is costed according to the Agency’s NDIS Price Guide:[26]
[26] Exhibit 5
Role title
Rate
NDIS Line Item
Qualification/Experience
Behaviour Therapist
15_052_0128_1_3
ABIA ABA Therapist Training (3-days face-to-face) or ABIA Making it work as an ABA therapist (27.5 hours online training)
Senior Behaviour Therapist
15_052_0128_1_3
Over 5 years-experience as a behaviour therapist plus relevant qualifications (e.g., undergraduate in psychology), enrolled in the Masters of Education in Applied Behaviour Analysis Course (e.g., at Monash University or have completed a similar recognized degree overseas)
Senior Clinician
15_040_0118_1_3
Allied health professional (Speech Pathologist, Occupational Therapist, Psychologist, or Social Worker) with experience in behavioural interventions
Total
$45 x 3.25 +$43.75
=$190/3hours
=$63.33 per hour
In cross-examination, Dr Molina agreed with XXWC’s father that the model allowed approximately 1.1 hours for meetings and consultations. Dr Molina said the he would have to take time if an accurate figure was required but it was approximately correct. It is apparent from Ms Donoghue’s evidence that an additional charge might be made if further resources were required in a particular case or if an extra resource had to be made and it was more time consuming than usual.
The Irabina report recommended that XXWC would benefit from an EIBI program. Irabina would typically enrol him in ABA as its behavioural intervention model of choice for ASD. In its view, it is the most supported by scientific evidence. Its ABA Skills Acquisition Program is tailored to the needs of each participant and treatment intensity is responsive to a participant’s progress and his or her developmental needs. As part of the ABA Skill Acquisition program, key functional skills are taught to encourage and to facilitate appropriate participation in family and community activities. Those skills would include instruction following, social communication skills, rule compliance, self-care skills, safety skills and independent leisure skills. Training of parents and other caregivers usually involves a systematic and individualised curriculum including several objective and measurable goals.
Training emphasises skills development and support so that caregivers become competent in implementing treatment protocols across critical environments. Irabina recommends that parents enrol in a Parent Training Program. That is a 16 week evidence-based curriculum developed to support parents and carers by teaching a number of strategies. Those strategies include identifying what can be done to prevent the problem behaviours, managing the problem behaviours once they have occurred, teaching new skills that could replace the problem behaviour and promoting positive behaviours instead of challenging behaviours. The program is based on the principles of ABA and aims to support parents of children with ASD and co-occurring behaviours such as tantrums and emotional regulation difficulties, non-compliance, difficulties with transition and physical aggression. As part of the training, parents and care givers are given a better understanding of what is being done within the treatment and why it is being done. Understanding the reason is a fundamental component in the generalisation of the treatment.
Irabina also recommends that parents of children who present with challenging behaviours that may cause harm to themselves or to others should enrol in the Safety and Behaviour Response program. This program is carer-focused intervention aimed at supporting them. They are trained to use behaviour intervention strategies to prevent, manage, and de-escalate crisis situations associated with challenging behaviours. The training can last three hours to four days, depending on the level of support required and the complexity of the behaviours to be addressed.
Dr Molina and Ms Donoghue explained that:
“At Irabina, EIBI programs are typically supported by a team of clinicians in a consultancy role. Clients receiving EIBI services generally attend occupational therapy and/or speech therapy on a weekly or fortnightly basis. These sessions provide the child with direct therapeutic support, and allow the team to evaluate progress in specific areas on a regular basis. During these sessions, the treating clinicians develop treatment goals on a regular basis. During these sessions, the treating clinicians develop treatment goals and corresponding intervention protocols which are integrated into the child’s skill acquisition program and delivered by the ABA therapists during the therapy sessions.”[27]
[27] Exhibit 4 at b)
In giving oral evidence, Dr Molina explained that a key worker tends to be the lead clinician who engages with the family and coordinates services to ensure that they are all working together towards similar goals and to facilitate additional services that the family may require. In an ABA program at Irabina, that role would be undertaken by the lead, or senior, clinician.
The Irabina model recommended for XXWC does not include regular sessions for a psychologist. Dr Molina said that he and Ms Donoghue were of the view that, for a child of XXWC’s age presenting with the concerns that his parents expressed, the preferred model of intervention would start with parental training directed to basic principles of behaviour or intervention behavioural support. They are coached and supported to implement those principles with their child in their own home. Not all parental training sessions would be conducted by a psychologist but, in any event, in some cases, the senior clinician is a psychologist. A psychologist would not work in child counselling with a child on an individual basis. The amount of supervision, planning and discussion associated with ABA may be as much as for the delivery of ESDM. Incorporation of a psychology session is the usual course for ESDM and is not inappropriate for XXWC, Dr Molina said.
Dr Molina does not regard ESDM as the only evidence-based behaviour intervention approach for toddlers. ABA is another and, from the literature, they seem to be the two that are accepted. ABA has the longest history and ESDM takes more than a few principles from it. Therefore ESDM has a robust theoretical model behind it as well as practical implementation. He would consider them both to be best models for early intervention for children with autism. ESDM has been seen as a model that requires more non-face time because it does provide very good support for the family and the child. ABA programs of quality would also emulate that. In the end, it comes down to the implementation of the program rather than a core principle of EDSM’s having more non-face time than other programs.
In their report, Appendix A set out answers Dr Molina had written to questions asked by the Agency. The questions centred on whether XXWC requires an early intervention capacity building program. If so, the Agency had asked further questions such the reasons why that would be so, what the program should include, how it should be designed and how capacity building strategies should be integrated into XXWC’s daily activities and how the early intervention support should build the capacity of XXWC’s kindergarten teachers, nannies and carers to assist them to facilitate his skill development. Dr Molina explained that he recommended a range of the hours required because he was discussing the range of therapies that might be needed by a range of participants. Irabina is not confined to ABA and recognises the need to flexible and to individualise the program for each child. At the same time, it is not so flexible that it changes goals every day. Dr Molina is not aware of any ESDM program that does that.
Irabina collects data during the therapy sessions with each child. It has developed a system that sets out the goals that have been set for the child and the therapist uses a range of codes to record the information. These are not notes in a narrative form but convey what has occurred. Irabina has developed this method of data collection over the years so that therapists can spend more time with the child and less on data collection.
XXWC’s father told Dr Molina that he could not see anything in Irabina’s recommendation for his son that matched the individualised details presented by Best Start. When he read 20 hours of therapy, he expected there to be 20 hours of therapy with the therapist paying attention to the child and not switching his or her attention between the child and writing notes.
Dr Molina responded that he has never worked at a clinic where there is three hours of constant therapy time without any downtime. That is so even with ESDM where data is supposed to be recorded every 15 minutes. If it were correct that therapy is recorded for the whole three hours and data collected at its conclusion, Dr Molina considered that would be unethical because what occurred in the previous three hours will not be accurate. XXWC’s father agreed that Best Start’s therapists do have an iPad on which they record whether the goal was met.
LEGISLATIVE FRAMEWORK
General principles
In conjunction with other laws, the National Disability Insurance Act 2013 (NDIS Act) gives effect to certain obligations that Australia has as a party to international conventions.[28] Its objects are also to:
[28] NDIS Act; ss 3(1)(a) and (i)
“(a) …
(b)provide for the National Disability Insurance Scheme in Australia; and
(c)support independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; …
(i)…”[29]
[29] NDIS Act; s 3(1)
Section 3(2) provides that the objects are to be achieved by:
“(a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and
(b)adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(c)establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.”
In giving effect to the objects of the NDIS Act, regard is to be had to:
“(a) the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c)the broad context of disability reform provided for in:
(i)the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and
(ii)the Carer Recognition Act 2010; 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.”[30]
[30] NDIS Act; s 3(3)
Section 4 of the NDIS Act sets out the general principles guiding actions taken under it. I will set out some of them:
“(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and deliver of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6)-(10)…
(11)Reasonable and necessary supports for people with disability 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.
(12)-(13)…
(14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15)Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)…
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.”
Participant’s plan
There is no question that WWXC is a participant in the NDIS as he meets the access criteria under Part 1 of Chapter 3 of the NDIS Act. Chapter 3 begins with a statement of the principles relating to the participation of people with a disability:
“(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their lives.
(2)People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3)The National Disability Insurance Scheme is to:
(a)respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b)enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c)support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.”[31]
[31] NDIS Act; s 17A
Once he became a participant, the CEO of the Agency was required to facilitate the preparation of her plan in accordance with the National Disability Insurance Scheme rules[32] and with Division 2 of Part 2 of Chapter 2. A participant’s plan must include a statement, known as the participant’s statement of goals and aspirations, prepared by the participant and, if not written by the participant, recorded in writing by the Agency,[33] and specifying:
“(a) the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other community supports; and
(iii)social and economic participation.”[34]
[32] NDIS Act; s 32. Section 209(1) provides that National Disability Insurance Scheme rules may be made by the Minister by legislative instrument. They may prescribe matters required or permitted to be prescribed by the NDIS Act or necessary or convenient to be prescribed in order to carry out, or give effect to, that Act. Sections 209(2) to (8) make specific provision for those rules.
[33] NDIS Act; s 33(8)
[34] NDIS Act; s 33(1)
In addition, the participant’s plan must include a statement, known as a statement of participant supports. That statement will have been prepared with the participant and approved by the CEO. It must specify:
“(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.”[35]
[35] NDIS Act; s 33(2)
The expression “general supports” has the meaning given by s 13(2):[36]
[36] NDIS Act; s 9
“(a) a service provided by the Agency to a person; or
(b)an activity engaged in by the Agency in relation to a person;
that is in the nature of coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.”
The word “supports” includes “general supports”.[37] A reference to “general supports” is a reference to:
“(a) a service provided by the Agency to the person; or
(b)an activity engaged in by the Agency in relation to the person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.”[38]
[37] NDIS Act; s 9
[38] NDIS Act; ss 9 and 12(2)
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 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 National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.”[39]
[39] NDIS Act; s 34(1)
The NDIS is not simply subject to legislative requirements as is a private health insurer but in the creation of statute. Although styled as an insurance scheme, the NDIS has some features that take it outside the boundaries of insurance. The benefit that is payable, for example, is not defined in absolute terms. It is, instead, determined by reference to the support that the CEO is satisfied is the reasonable and necessary support in each individual case or that is a general support that will be funded by the Agency. That means that each benefit is tailored for each individual participant. It is a bespoke benefit.
Unlike a health insurance scheme, the NDIS is not funded by its members in the form of premiums. It is funded from the public monies but regard must be had to the need to ensure its financial sustainability.[58] That is language consistent with its being a scheme of insurance. It is language that is consistent with the need for the CEO to be satisfied, for example, that the support represents value for money in that the costs of the support are reasonable, relative both to the benefits achieved and the cost of alternative support[59] and that the support will be, or likely to be, effective and beneficial for the participant having regard to current good practice.[60] At the same time, that language is consistent with the individualised nature of the benefits that are approved by the CEO. That is also apparent from s 33(5) when it requires the CEO to have regard to relevant assessments conducted in relation to the participant and to the operation and effectiveness of previous plans approved for a participant.[61]
[58] NDIS Act; s 3(3)(b)
[59] NDIS Act; s 34(1)(c)
[60] NDIS Act; s 34(1)(d)
[61] NDIS Act; s 33(5)(b) and (f)
When regard is had to all of the matters, to which the CEO must have regard under s 34, in approving the supports that will be provided to a participant as well as those matters, which s 33 requires the CEO to have regard in deciding whether to approve a participant’s plan in the context of the objects of the NDIS Act set out in s 3, the principles that must guide actions of people doing acts or things on behalf of others and the need to maintain stability, it becomes clear that the plan, including its statement of participant supports, that is approved is unlikely to meet every participant’s every wish. The NDIS Act itself recognises that it is unlikely to do so for s 34 itself requires consideration to be given to whether a support is most appropriately funded or provided through NDIS or more appropriately funded or provided through other services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination.[62] The CEO must also take account of what it is reasonable to expect families, carers, informal networks and the community to provide.
[62] NDIS Act; s 34(f)
The evidence I have been given must be viewed with an eye to trying to achieve the balance that is required by the NDIS Act and of which I have given examples in the preceding paragraphs. While reference is made to a participant’s choice and control on several occasions in the NDIS Act,[63] it is not choice of the statement of participant supports that will be approved by the CEO. The CEO will pay careful regard to a participant’s, or in this case his parents’, choice but he or she must have regard to a range of issues of the sort I have mentioned in reaching a decision. The CEO may approve a plan that requires funding to be spent by engaging particular providers or it may have various levels of flexibility so that a participant may choose the service provider to provide supports that have been approved in a statement of participant supports.
[63] See, for example, NDIS Act; ss 3(1)(e) and 17A(3)(a) and NDIS Rules; cl 1.2(e)
This is apparent from the NDIS Price Guides but it is also apparent that the Agency wishes to ensure that participants are not overcharged when choosing a service to be provided by a registered provider. The Board of the Agency, which is established by s 123 of the NDIS Act, is required, among other functions, to ensure the proper, efficient and effective performance of the Agency’s functions.[64] In carrying out that function, it has set price controls for certain NDIS supports. The Agency states in its introduction to each NDIS Price Guide that:
“The NDIA sets price controls for certain NDIS supports to ensure NDIS participants obtain reasonable value from their support packages. The price limits in this Guide are the maximum prices that Registered Providers can charge NDIS participants for specific supports. There is no requirement for providers to charge at the maximum price for a given support or service. Participants and providers are free to negotiate lower prices.
Price controls must be sustainable, which means that efficient providers must be able to recover the cost of delivering high quality disability supports. The NDIA takes into account market risks, when setting price controls to protect against supply gaps and ensure participants receive critical supports. This is important especially in markets that are immature or where there is limited choice for participants. Over time, the need for price controls will reduce, as disability support markets develop and competitive tension increasingly keeps support prices at reasonable levels.
Not all NDIS support items have price limits, and this NDIS Price Guide is not a comprehensive list of all supports that are available to NDIS participants. Instead, this Guide lists the specific supports that have maximum prices, and also sets out other rules and support definitions that are part of NDIA’[s] market intervention approach. A complete list of disability supports recognised by the NDIS (Support Catalogue) is maintained on the NDIS website ( NDIS Act; s 124(1)(a)
[65] Exhibit 3 at
What are reasonable and necessary supports for XXWC?
In this case, I accept that XXWC’s parents are well-pleased with the progress that their son has made with Best Start. They wish to continue with Best Start and, provided the funding is provided flexibly, there is no reason why they should not. In practical terms, the real issue is whether the 18 hours of EIBI agreed upon between the parties should be funded at the blended rate and include a key worker and sessions with a psychologist. To use the language of the NDIS Act, is ESDM what amounts to reasonable and necessary supports for XXWC or is ABA?
Dr Briggs and Ms Brennan take the position that ESDM is the best EIBI model. As Dr Briggs said, she regarded any change in the delivery of that model as not being ESDM. Dr Molina and Ms Donoghue acknowledge that ESDM is an evidence-based intervention model and that there is extensive research suggesting it is an effective model to support skills acquisition and overall development. Dr Molina is well-placed to give that evidence for he has practised as both an ABA therapist as well as an ESDM therapist. ESDM would be a model that would meet the guidelines and comply with the principles set out by Professors Prior and Roberts but so too would the model recommended by Irabina.
In the context of this case, I must look not only at the nature of the EIBI available but what is reasonable and necessary for XXWC. That is the nature of the individualised approach that the NDIS Act adopts. I will, however, begin with more general findings. Having heard the evidence and particularly that of Dr Briggs and Ms Brennan, I am satisfied that the extent of the program supplemented by a further six hours and eighteen minutes for matters such as supervision and planning are necessary for the delivery of ESDM. I am also satisfied on the basis of their evidence that XXWC has made advances from the baseline with which he presented to Best Start. Dr Molina and Ms Donoghue also acknowledge the results that Best Start has achieved and I understand that XXWC’s parents are satisfied with ESDM as followed at Best Start.
Results and satisfaction with a particular program do not necessarily equate with that program’s being the only program that will enable XXWC to pursue his goals, objectives and aspirations or with its presenting value for money in the sense of the benefits achieved and the cost of an alternate program. The merits of the programs that are available need to be compared and then considered in the context of the particular participant’s circumstances. The only EIBI model with which it can be compared is that recommended by Dr Molina and Ms Donoghue after reviewing XXWC.
The EIBI offered by Irabina is ABA and its program meets the guidelines and is consistent with the principles adopted by Professors Prior and Roberts. It is team-based and the members of the team are multi-disciplinary. It will assist a child to pursue goals, objectives and aspirations of the sort set out in XXWC’s statement of goals and aspirations. At a young age, they will support a child to undertake activities to facilitate his or her social participation if not, at a later time, his or her economic participation. An ABA program is likely to be effective and beneficial for a child having regard to current good practice as explained by Professors Prior and Roberts. It also takes account of what it is reasonable for others, including the participant’s parents, to provide.
Dr Molina has recommended that 18 hours of ABA be provided in conjunction with two hours of clinical consultation each week. That would be in the fields of occupational therapy and speech therapy. He has done so on the basis of the observations he and Ms Donoghue made of XXWC. Irabina’s ABA does not have the additional six hours and 18 minutes each week provided for by Best Start for supervision, planning and the like but it does include reviews that are conducted monthly with the senior therapist, parents and the child. If required, Dr Molina said, the amount of time allowed for that review is fluid and increased as required. Review will not take place as frequently under the ABA model but, as Dr Molina observed with his background as both an ESDM and ABA therapist, a child needs some continuity in the program and it should not be changed on a weekly basis.
I note that XXWC’s parents rely on Dr Briggs’ evidence that XXWC should have a separate session with a psychologist each week. For a child of tender years, Dr Molina is of the view that it is not necessary. If there should be a reason in XXWC’s particular circumstances, that can be addressed in future plans as will the whole issue of the general supports and reasonable and necessary supports that will be approved by the CEO.
When I have regard to the whole of the evidence, it seems to me that there is little to choose between ESDM and ABA. Both offer EIBI and both have expert support. If it were not for one matter, I would find that ABA is a reasonable and necessary support for XXWC having regard to his statement of goals and aspirations, the assessments that have been made of him, the support that will assist him to achieve his goals and aspirations to undertake activities so as to facilitate the participant’s social and economic participation. It represents value for money in that its costs are relative both to the benefits achieved and the cost of the alternative, which is ESDM in this case. ABA is also takes account of what it is reasonable to expect families and carers to undertake as well as what it is reasonable to expect, if anything at XXWC’s young age, informal networks and the community to provide.
The one matter that leads me to prefer ESDM as the reasonable and necessary support in XXWC’s particular circumstances is that he has already been receiving ESDM for at least a year. Dr Molina acknowledged that stability and consistency are important in the treatment of ASD. I am satisfied that, even though there is a significant difference in the costing, XXWC’s continued treatment using ESDM as provided by Best Start is the reasonable and necessary support for him.
In relation to the period from 12 December 2017 to 10 December 2018, with which I am concerned, I find that XXWC’s statement of participant supports should be varied to allow for him to participate in ESDM for 18 hours each week together with provision for a key worker and an additional six hours and 18 minutes of planning, discussion and supervision. On the costings of the Agency based on the 2017/2018 NDIS Price Guide for the first 25 weeks and the 2018/2019 NDIS Price Guide for the remaining 23 weeks, I would vary the statement of participant supports to reflect the sum of $112,723.20 for the period 12 December 2017 to 10 December 2018. The figure of $91,276.62 costed by Dr Molina and Ms Donoghue in Appendix B to their report dated 24 February 2019, is based on the NDIS Price Guide in effect from 1 February 2019.
The sum of $112,723.20 effectively replaces that of $39,196.62 initially approved by the CEO for the provision of Early Childhood intervention supports that it identified as Capacity Building Supports. That leaves the further $5,129 identified in the Plan for Core Supports to assist with undertaking activities of daily living. The Agency submitted that XXWC’s parents had not detailed how that funding would be used and why it was reasonable and necessary within the meaning of s 34 of the NDIS Act. Given the increase in the sum approved for EIBI, I agree that this is so in respect of the period of the Plan.
Travel is not provided for either in the ESDM of Best Start of the ABA of Irabina. The NDIS Price Guide sets out the circumstances in which a provider may claim travel costs for a participant. Taken from the NDIS Price Guide commencing on 1 February 2019, which is in terms consistent with earlier guides, it is stated:
“Provider Travel
Providers who intend to claim travel costs from a participant must have the agreement of the participant in advance (i.e. the service agreement between the participant and provider should specify the travel costs that can be claimed).
Travel to provide personal care and community access
Providers may not claim travel costs for the time that a support worker spends travelling from home to the workplace (or first participant) and from the workplace (or last participant).
Where a support worker travels from one participant appointment to another, up to 20 minutes of time can be claimed against the next appointment at the hourly rate for the relevant support item.
Where a worker travels from one participant appointment to another in an MMM4 or MMM5 area, up to 45 minutes of time can be claimed against the next appointment at the hourly rate for the relevant support item.
Travel to provide therapy supports
Therapy providers may claim travel costs when travelling to and from appointments:
·For travel to a first participant appointment each day, or for travel from one participant appointment to another, therapy providers can claim up to 20 minutes of time against the appointment they are travelling to, at the hourly rate for the relevant support item. If the appointment is in a MMM4 or MMM5 area, therapy providers can claim up to 45 minutes of travel time against the appointment they are travelling to, at the hourly rate for the relevant support item.
·Therapy providers can also claim for return travel from the final appointment in a day.
In remote areas, therapy providers may enter specific arrangements with participants to cover travel costs, up to the relevant hourly rate for the support item. Providers should assist participants to minimise the travel costs that they need to pay (e.g. co-ordinating appointments with other participants in an area, so that travel costs can be shared between participants).”[66]
[66] NDIS Guide valid from 1 February 2019 at 16-17
The evidence has touched at times on therapists’ visiting XXWC’s home but the circumstances in which that occurred and the need for it have not been addressed. Rather than conclude that I cannot make a finding as to whether it is reasonable and necessary to assist XXWC in pursuing his goals, objectives and aspirations and the other criteria in s 34(1) of the NDIS Act, I have adjourned further consideration of this issue. That will enable XXWC’s parents to gather the relevant information and put it to the Agency. If the parties do not come to an agreement regarding travel, I will consider it further.
Claim for reimbursement
Whatever I decide in this matter, it is clear from the position agreed upon by the parties regarding an additional 18 hours of EIBI that the budget for Improved Daily living in the Plan would be increased. Had that budget appeared in the Plan as originally approved, XXWC’s parents would have been paid by the Agency directly for the EIBI up to 18 hours up to the total budget. As it is, XXWC’s parents have paid the costs of those 18 hours during the life of the Plan from their own pocket. They now ask me to make an order that the Agency reimburse the costs of EIBI for those 18 hours each week.
I have decided that I cannot make that order. The reason why I cannot do so lies in the limits of the power that I have to review decisions of the Agency. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that an enactment may provide that applications may be made to the Tribunal for review of a decision made in the exercise of powers conferred by that enactment. The NDIS Act is such an enactment when it provides in s 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6). Decisions that a reviewer may make under s 100(6) are made after a person directly affected by a reviewable decision asks the decision-maker, in this case the CEO, to review that decision.[67] The decisions that come within the description of a “reviewable decision” are those set out in ss 99(1) and (2) of the NDIS Act.
[67] NDIS Act; ss 100(2)-(6)
A decision made by the CEO under s 33(2) of the NDIS Act to approve a statement of participant supports is a reviewable decision because it is specified to be that by Item 4 of s 99(1). That is the decision made by the CEO on 12 December 2017. As the reviewer confirmed the CEO’s decision under s 100(6)(a), the CEO’s decision under s 33(2) to approve the statement of participant supports in the form in which it appeared in the Plan is the decision in relation to which an application may be made to the Tribunal for review. It is the operative decision that affected XXWC’s rights.[68] It is not the decision made by the reviewer for the decision simply confirmed the CEO’s decision that was already operative.[69]
[68] See Re Gee and and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347 at 139-141; 355-357; Davies J, President, Mr Cusack and Mr Prowse, Members and cited with approval in Yolbir v Administrative Appeals Tribunal and Anor [1994] FCA 910; (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 248-249; 10; 17-18; Davies J, Burchett and O’Connor
[69] Application of the principles in cases such as Gee and Yolbir leads to the conclusion that the operative decision would be the CEO’s decision under s 33(2) as varied by the reviewer under s 100(6) or, if the reviewer set the CEO’s decision aside, the decision substituted by the reviewer.
Once an applicant has lodged an application for review of a decision, the Tribunal has power to review that decision. Before its amendment by the Tribunals Amalgamation Act 2015,[70] s 25(4) of the AAT Act provided that: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.” Since its repeal, the link between the lodgement of an application and the Tribunal’s power to review the decision in respect of which the application was made, is no longer expressly stated. It must now be understood by implication from other provisions of the AAT Act. Those provisions are found in Part IV of the AAT Act when it sets out the Tribunal’s powers in relation to applications that are made to it.
[70] Tribunals Amalgamation Act 2015; s 3 and Schedule 1, Item 40
For the purposes of reviewing a decision, the Tribunal “… may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.”[71] This is subject to any qualification made by the enactment conferring the right to make an application for review of a decision. The CEO’s powers in deciding whether to approve, or not approve, a statement of participant supports under s 33(2) of the NDIS Act must be made having regard to criteria set out in provisions such as ss 33(5), 34 and 35. The CEO may request information under s 36(2) for the purposes of deciding whether or not to approve a statement of participant supports but, provided he or she gives a participant a reasonable opportunity to comply with a request, may make a decision before receiving the requested reports or information.
[71] AAT Act; s 43(1)
There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal’s power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC’s parents’ expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC’s parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.
DECISION
For the reasons I have given, I:
(1)vary the statement of participant supports included in the Plan by:
(a)setting aside the decision to specify funding in the sum of:
(i)$39,196.62 for the provision of Early Childhood interventions supports as Capacity Building supports; and
(ii)$5,129 for Core Supports to assist with the activities of daily living; and
(b)substituting a decision that funding in the amount of $112,723.20 is approved for Capacity Building Supports for XXWC; and
(2)adjourning further consideration of whether any further funding should be provided for reasonable and necessary travel by therapists to deliver the Capacity Building Supports.
| I certify that the preceding one hundred and twenty-five [125] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
.......................[sgd]..........................................
Associate
Dated: 23 March 2020
| Date of hearing: | 27 and 28 June 2019 |
Applicant | Represented by his mother and father |
| Counsel for the Respondent: Solicitor for the Respondent: | Dr Kathleen Foley Ms Danielle Nicholson, Sparke Helmore |
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