Becoming a NDIS Provider - Managing Risk Peter Moran Principal Norton Gledhill

Overview NDIS Service Provider registration process What do you need to be able to register NDIA declaration Some risks Some risk mitigation strategies Contract law 101 Service Agreements Model Service Agreement Agreements - tips Becoming a NDIS Provider – Managing Risk | 8 March 2016 |

NDIS Provider Registration Process http://www.ndis.gov.au/sites/default/files/files/NDIA -Provider-Registration-Form-v3-16.pdf Form must be submitted electronically. No need to pre-register and NDIA notes that process may be refined Becoming a NDIS Provider – Managing Risk | 8 March 2016

What do you need to register? Access to a computer/email You must have an ABN Know what type of entity you are and legal name Company, partnership, trustee, incorporated association, sole provider, organisation, subsidiary of a parent group Know if you have to register for GST Must register if turnover in excess of $75,000 for-profit, $150,000 not-for- profit (or provide taxi/limousine travel or claim fuel credits), otherwise registration is optional Becoming a NDIS Provider – Managing Risk | 8 March 2016

What do you need to register? Are you not for profit? Does your structure allow you to be “for-profit” or “not-for-profit”? Contact details Address, email address, bank account for payments, authorised contact/nominated employee for portal access. Do you know what region you can currently support? Becoming a NDIS Provider – Managing Risk | 8 March 2016 |

Declaration to NDIA Read NDIA Guidelines http://www.ndis.gov.au/about-us/operational-guidelines Read NDIA Terms of Business http://www.ndis.gov.au/sites/default/files/documents/terms_of_business_registered_providers.pdf Conflict of interest - being influenced by a financial or personal interest in carrying out duties Insurance – professional indemnity, public liability, workers compensation Anti-discrimination – on grounds of gender, marital status, pregnancy, age, ethnic origin, disability, sexual preference Records management – financial records to be maintained for at least 5 years Pricing – see NDIA Price Guide – costs must be reasonable, relative to the benefits achieved and the cost of alternative support Serious accident reporting Becoming a NDIS Provider – Managing Risk | 8 March 2016

What do you need to register? Employment Compliance Employment Law Statutory minimums, awards, implied terms, explicit contract – State and Federal laws Contractor versus employee Workplace safety Stated based but largely harmonised (except Vic and WA) Must take reasonably practicable steps to keep a workplace safe – due diligence obligation for offices in all States except Vic and WA Non-discriminatory Can’t treat a person adversely based on prescribed attribute but some exceptions if attribute is such that a person can’t perform the inherent requirements of the job Becoming a NDIS Provider – Managing Risk | 8 March 2016 |

What do you need to register? Notifications to NDIA Complaint re standard, effectiveness or safety of support. Adverse action by responsible authority. Insolvent under an administration. Failure to comply with an employment, workplace or safety law (including a failure by a contractor). Fail to comply with a part of the NDIS Act which is a criminal offence. Any action taken by the provider relating to the above. Becoming a NDIS Provider – Managing Risk | 8 March 2016

Unhappy participants: loss of business What risks? Unhappy participants: loss of business Non-compliance: cancellation of registration Non-compliance: penalties Liability: corporate or personal exposure Liability: NDIS participants Liability: suppliers Becoming a NDIS Provider – Managing Risk | 8 March 2016

What can I do to mitigate risks? Choice of structure – limited liability entity Sole trader Unincorporated Association Incorporated Association Company Limited by Guarantee Proprietary Limited Company/Limited Company Trust Not for profit restrictions and fiduciary obligations Becoming a NDIS Provider – Managing Risk| 8 March 2016|

What can I do to mitigate risks? Transfer, share or confine risk Advisers: lawyers, accountants, consultants Directors Indemnities Insurance: eg D&O Contracts Becoming a NDIS Provider – Managing Risk | 8 March 2016 |

What can I do to mitigate the risks? Be aware of your obligations Read NDIA Terms of Business and Guidelines Attend conferences Seek advice when in doubt Seek contractual protection Services Agreements Ensure terms are read and understood by both provider and participant Quality of service provision – know your craft Becoming a NDIS Provider – Managing Risk | 8 March 2016

Requisite elements of contracts Offer, acceptance, exchange Contract Law 101 Requisite elements of contracts Offer, acceptance, exchange Consideration – services and payment Certainty of Intent – signature/identify parties Certainty of Terms – signature with contract Authority of person to enter into contract Becoming a NDIS Provider – Managing Risk | 8 March 2016 |

Business pre-nuptial agreement Agreed set of expectations Service Agreements Business pre-nuptial agreement Agreed set of expectations “Support the independence and social and economic participation of people with disability.” “Enable people with a disability to exercise choice and control in the planning and delivery of their supports.” Becoming a NDIS Provider – Managing Risk | 8 March 2016 |

Model Service Agreement Service Agreements Model Service Agreement http://www.ndis.gov.au/model-service-agreement Identify parties Commencement Date Attach participant’s NDIS plan Description of supports and duration of each support Pricing set out in schedule (nb GST inclusive and additional expenses) Payment terms – payment after participant confirms satisfactory delivery – self managing payments, payment through plan nominee, NDIA managed, plan management provider managed Changes – must be in writing and signed Becoming a NDIS Provider – Managing Risk | 8 March 2016

Model Service Agreement Provider Responsibilities Review supports with participant on agreed frequency Provide supports at agreed times Communicate openly, honestly and in a timely manner Treat participant with courtesy and respect and consult with participant on decisions Give participant information about managing complaints and disagreements Listen to participant’s feedback Give a minimum of 24 hours notice if changing an appointment Provide support in manner consistent with laws and keep accurate records Issue regular invoices Becoming a NDIS Provider – Managing Risk | 8 March 2016 |

Model Service Agreement Participant Responsibilities Inform provider about how they wish support to be delivered Treat provider with courtesy and respect Raise concerns about support with provider Give provider 24 hours notice if appointment cannot be met (and agrees to provider’s cancellation policy if insufficient notice provided) Let the provider know if the participant’s NDIS plan is suspended or replaced or the participant stops being a participant in the NDIS Becoming a NDIS Provider – Managing Risk | 8 March 2016

Model Service Agreement Ending the agreement Need to agree notice period at outset If there is a serious breach, the notice period is waived and the party not in breach can terminate immediately Feedback, complaints and disputes Provide a contact for feedback Provide a contact for complaints Notify the participant of their right to complain directly to the NDIA Becoming a NDIS Provider – Managing Risk | 8 March 2016

Service Agreements – Other tips Talk it through at the start to ensure expectations are mutual When in difficulty, revisit and re-read the agreement Learn from mistakes – revise your template Don’t over complicate but also cover key issues When dealing with difficult issues/provisions, seek advice from experts rather than DIY Get buy- in with contract - involve family and friends in process where appropriate Becoming a NDIS Provider – Managing Risk | 8 March 2016

Becoming a NDIS Provider - Managing Risk Peter Moran Principal Norton Gledhill