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

3. 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 |

4. NDIS Provider Registration Process
-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

5. What do you need to register?
Access to a computer/
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

6. 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, 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 |

7. Declaration to NDIA Read NDIA Guidelines
Read NDIA Terms of Business
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

8. 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 |

9. 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

10. 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

11. 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|

12. 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 |

13. 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

14. 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 |

15. 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 |

16. Model Service Agreement
Service Agreements
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

17. 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 |

18. 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

19. 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

20. 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

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