Disability Services Standards (Eligible Service Standards) (FAHCSIA) Determination 2010

EXPLANATORY STATEMENT

DISABILITY SERVICES STANDARDS (Eligible Service Standards) (FAHCSIA) Determination 2010

Summary

The Disability Services Standards (Eligible Service Standards) (FAHCSIA) Determination 2010 (the eligible service standards) are made by the Minister of Families, Housing, Community Services and Indigenous Affairs under paragraph 5A (1) (a) of the Disability Services Act 1986 (the Act).

Background

In June 1992 a number of amendments were made to the Act as part of the Government's strategy to assist funded organisations improve the standard of service they provide for people with disability.  The primary focus of those amendments was on providing people with the services which best meet their needs and aspirations, and to ensure that the quality of these services is subject to safeguards.

As a consequence of these amendments, Disability Services Standards were made under a legislative instrument entitled “Determination of Standards for the purpose of Section 9C” (the 1993 Standards).  The Determination commenced on 1 March 1993.

The determination of the 1993 Standards originally related to the Commonwealth Government's strategy for assisting funded agencies to improve the quality of services provided to people with disability.  The 1993 Standards comprised 11 standards. Standards numbered 1 to 8 inclusive are the ‘core’ Standards and were intended to apply to all disability services for which the Commonwealth had responsibility prior to implementation of the then Commonwealth State Disability Agreement (now National Disability Agreement). Standards 9 to 11 were to apply in addition for disability employment services only.

Standards numbered 1 to 8 inclusive, (of the 11 standards contained in the 1993 Standards), relate now to what are currently known as eligible services under paragraph 5A (1) (a) of the Act.  Under section 7 of the Act ‘eligible service’ is defined to include ‘advocacy services’.  Since the making of the 1993 Standards, disability employment standards have been made for employment services and Standards 9 to 11 are now not relevant to any other category of eligible service.

It was recently brought to the attention of the Department Families, Housing, Community Services and Indigenous Affairs (the Department) that the 1993 Standards made pursuant to the Act were not registered on the Federal Register of Legislative Instruments through the backcapture process as required by section 28 of the Legislative Instruments Act 2003.  This was the result of an administrative oversight, and was not intended.  As a consequence, the 1993 Standards were effectively repealed with effect from 1 January 2008.

There are a number of legislative and accountability requirements within the Act and associated Administrative Guidelines which require disability advocacy agencies funded under the National Disability Advocacy Program (NDAP) to comply with Standards made under the Act.  These requirements include annual self-assessments and five yearly audits, and for funding to only be provided to services which are complying with the Standards.  The relevant funding agreements include these requirements.

It is necessary for the relevant Standards set out in the 1993 Standards to be reinstated so that funded organisations are required to provide services for people with disability to the level required under the 1993 Standards; for example, the right to privacy, dignity and confidentiality.

Both the Department and the disability sector generally have acted in the belief that the 1993 Standards have been operative.  It was never the Department’s intention to actively repeal the 1993 Standards; as noted above, this resulted from an administrative oversight.  The purpose of this Determination is to rectify the inadvertent repealing of the 1993 Standards, thereby providing operational disability service standards to govern delivery of disability advocacy services.

Proposed revised Standards

There are also currently plans to develop and register a new set of standards for advocacy services, however, these are still being trialled and will not be operational in the near future.

In January 2009, all Australian jurisdictions endorsed a new National Disability Agreement, which includes the development of a National Quality Framework (NQF) for Disability Services in Australia.  The aim of a NQF is to promote and drive a nationally consistent approach to improving the quality of services, with a focus on improving outcomes for people who use these services.

The Disability Services Ministers, that is, the State, Territory and Commonwealth Ministers responsible for administration of disability services in their respective jurisdictions, endorsed an interim NQF in September 2009. A key feature of the interim NQF was to have quality management systems in place, with organisations in every jurisdiction being required to conform with a set of legislated National Disability Standards in order to receive government funding.

The NQF is being developed by government representatives on the National Disability Services Quality Strategy Working Group, which has been established by the Disability Policy Research Working Group.

The review aims to address gaps in the 1993 Standards, as well as to consider the inclusion of contemporary language and concepts.  Further, the NQF seeks to comply with the United Nations Convention on the Rights of People with Disabilities.

However, pending the making of the revised Standards, it is necessary to reinstate the 1993 Standards as an interim measure.

About the Determination

The Determination is in two parts.  The first part (Part A), provides introductory material to the Standards themselves, including definitions of some of the terms used in the determination.  The second part (Part B) sets out eight areas in which the standards have been determined.  These areas are:

1. Service Access

2. Individual Needs

3. Decision Making and Choice

4. Privacy, Dignity and Confidentiality

5. Participation and Integration

6. Valued Status

7. Complaints and Disputes

8. Service Management

The eight standards will apply to eligible services for which the Department has responsibility.

Minor Changes

Whilst the Department has sought to replicate the 1993 Standards there have been some minor technical changes to make them consistent with current legislative requirements.

In the table below the minor changes from the 1993 Standards are listed:

Explanation of the provisions

Section 1 – Citing these standards

This section provides that the Standards are the Disability Services Standards (Eligible Service Standards) (FAHCSIA) Determination 2010.

Section 2 – Date of commencement

This section provides that the Standards will commence on the day after the Determination is registered.

Section 3 – Authority of these Standards

This section provides that the Standards have been determined under paragraph 5A (1) (a) of the Act.

Section 4 – Application of Standards to Eligible Services

This section provides that Standards 1 to 8 inclusive are to be observed in respect of eligible services funded under the Act.

Section 5 – Interpretation

This section provides definitions for the following terms:

- the Act

- advocate

- agency

- community

- complaints and disputes

- consent

- consultation

- consumer

- integration

- least restrictive way

- organisation

- participation

- relative need

- responsibilities

- resolved

- retribution

- service

Part B – The Standards

Each standard has been developed to articulate the overriding outcome which that standard is expected to realise for each consumer.  Each outcome standard is supported by a number of "supporting" standards which collectively contribute to achievement of that outcome standard.

Standard 1 – Service Access

The purpose of this standard is to ensure that each consumer seeking a service has access to a service on the basis of relative need.

The supporting standards address the agency's entry and exit policies and procedures, the way in which the agency manages its waiting lists for each service, and the agency's onwards and specific-support referral mechanisms.

Standard 2 – Individual Needs

The purpose of this standard is to ensure that each person with disability receives a service that is planned, reliable and meets his or her needs in the least restrictive way.

The supporting standards address the agency's policies and procedures for identifying, meeting and reviewing the individual needs and goals of each service user.  The supporting standards recognise that the needs of a particular consumer may be best met by another agency or by generic community services, and that service providers need to be sensitive to the age and sex and the cultural, linguistic and religious background of each person with disability.

Standard 3 – Decision Making and Choice

The purpose of this standard is to ensure that each person with disability has the opportunity to make decisions and choices.

The supporting standards cover the written policies and procedures of the agency and address the manner in which decisions are made in respect of the service and individual consumers.  They also maximise opportunities for consumer participation in decision making and ensure that each person with disability receives the support they need to make informed decisions and choices.

Standard 4 – Privacy, Dignity and Confidentiality

The purpose of this standard is to ensure that each consumer has the same level of privacy, dignity and confidentiality as is expected by the rest of the community.

The supporting standards address protection of the dignity, privacy and confidentiality of consumers through the agency's policies and procedures in relation to the handling of personal information and in relation to personal activities.

Standard 5 – Participation and Integration

The purpose of this standard is to ensure that each person with disability has the opportunity to participate in the life of the community.

The supporting standards address the policy and procedures of the service in relation to encouraging the use by consumers of general community facilities and services, and the establishment and maintenance by consumers of ties and involvements in the community.

Standard 6 – Valued Status

The purpose of this standard is to ensure that services play an active role in promoting the valued status of people with disability.

The supporting standards address the policies and procedures of the service which promote the skills and capacities of consumers and give them the opportunity to develop life-styles valued in the community.

Standard 7 – Complaints and Disputes

The purpose of this standard is to ensure that each consumer has access to fair procedures for dealing with complaints and disputes.

The supporting standards address the policies and procedures of the service which enable consumers, with the support of advocates where requested, to have complaints or disputes about the service fairly and speedily resolved.

Standard 8 – Service Management

The purpose of this standard is to ensure that each consumer receives services that are efficiently and effectively managed.

The supporting standards address the following areas of service management:

• the protection of the legal and human rights of consumers;

• the provision of a safe physical environment for consumers;

• the involvement of consumers in the management of the service;

• the internal evaluation of the service against objectives and the reporting of the service's achievements through annual reports;

• the efficient management of resources to maximise the funds available for services to consumers;

• identification of management and staff roles and responsibilities and the provision of services by appropriately skilled and competent staff;

• a policy of affirmative action in employing people with disability; and

• the development of a policy and procedures for handling complaints and disputes raised about the service by staff and others; and

• a process of co-ordination with other agencies and organisations.

Consultation

The 1993 Standards were developed with extensive and exhaustive community consultation by a working party with representation from the Commonwealth, State Governments, the Australian Council for Rehabilitation of Disabled (now the National Disability Services (NDS) Limited), the Disability Advisory Council of Australia, the National Council on Intellectual Disability and Disabled peoples' International (Australia).

In March 1992 the working party published and circulated an issues paper which outlined a preliminary set of standards.  As a result of this consultation, 11 draft standards were developed and distributed for further community comment in June 1992.  The 1993 Standards were developed by the working party on the basis of comments received during these public consultations.

In developing the 1993 Standards, the working party sought to put the Objects, and the Principles and Objectives of the Act into operation.  The 1993 Standards are, therefore, a clear statement of what it means to meet these Objects, Principles and Objectives.

Because there was extensive consultation before the 1993 Standards became operational, and because the Department is merely remaking the 1993 Standards to ensure continuity of business in the disability sector, no further consultation has been undertaken under section 17 of the Legislative Instruments Act 2003 or section 37 of the Disability Services (Administration of Part II of the Act) Guidelines 2002.

It should be observed that during 2007-08, the Department consulted extensively with the disability advocacy sector and developed a revised set of draft Disability Advocacy Standards (which include the 1993 Standards, though they are tailored to the unique needs of the disability advocacy sector). The revised Disability Advocacy Standards are currently being trialled as part of a new third party Quality Assurance system for disability advocacy services.

Following evaluation of the trial (and the revised Standards, which are currently being trialled), it is planned that these revised Standards will be made during 2010-2011. The revised Disability Advocacy Standards will need to be consistent with developments taking place as part of the National Disability Agreement’s National Quality Framework. It should be noted that until new Standards are made in 2010 – 2011 the 1993 Standards will need to be remade so that they can continue to apply to disability advocacy agencies.

Regulatory Impact analysis

This Determination does not require a Regulatory Impact Statement and/or a Business Cost Calculator Figure.  Because this Instrument replicates a previous Instrument, it will not impact on business activity and will have no, or minimal, compliance costs or competition impact.