Groundbreaking conclusion challenges "reasonable and necessary" NDIS funding criteria

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Posted 5 months ago by Nicole Pope

Dysphasia affects 60 percent of children with developmental delay and around 50 percent of stroke survivors [Source: Shutterstock]
Dysphasia affects 60 percent of children with developmental delay and around 50 percent of stroke survivors [Source: Shutterstock]

Australians living with swallowing difficulties, such as dysphagia, could soon have required nutritional support funded under the National Disability Insurance Scheme (NDIS) following a groundbreaking conclusion from the Administrative Appeals Tribunal (AAT).

The Tribunal made the judgement after a young man with cerebral palsy and severe dysphagia appealed the NDIS’ decision to not fund his fluid thickeners and nutritional support products as prescribed by an Accredited Practising Dietitian.

Under the NDIS Act, it states the Scheme will not fund support if it would be more appropriately funded by another Government service provider, regardless of if these supports were offered.

However, the ATT looked further into the language of the legislation and overruled it.

Coming to the conclusion that these supports are indeed “reasonable and necessary”, the Tribunal did not believe these supports could be considered a treatment for a health condition or preventative healthcare.

“This in itself is a huge win for the thousands of NDIS participants who rely on this vital support,” Sara Gingold of Disability Services Consulting Australia says.

Dysphagia affects 60 percent of children with developmental delay and around 50 percent of stroke survivors.

“Eating and drinking is something we do around 500-700 times a day without thinking about it,” Dr Julie Cichero says.

“We trust that food, drink, saliva and medicine will pass through our mouth, throat and oesophagus, and arrive safely in our stomach.”

“Yet, for around 8 percent of the population, this simple act is a problem because food and drink gets into their lungs and causes chest infections like pneumonia.

“Sometimes this problem is so severe that regular food and drink can become a life-threatening choking risk,” Dr Cichero says.

Acting Chief Executive Officer (CEO) of National Disability Services (NDS), David Moody says there will no longer be confusion of whether these essential needs are supported by the NDIS or health departments.

“We see this decision as giving clarity about this important issue to thousands of Australians with disability who experience swallowing difficulties, such as dysphagia.”

CEO of the Council for Intellectual Disability (CID), Justine O’Neill says the organisation has played a significant role in addressing the dangerous gap in NDIS funding for swallowing therapy.

“CID has been campaigning on this issue for some time and had a major success with temporary funding agreed to by the NDIS late last year.”

Senior Lecturer of Administrative Law at La Trobe Law School, Darren O’Donovan says the move will help so many people and calls for a greater focus on legislation and clear governance over unworkably vague policy documents.

“For too long NDIS participants have been cast adrift with poorly drafted, contradictory statements, which advocates and lawyers struggle to pass.

“This case underlines the need for Federal and State politicians to stop creating a “fog of law” around essential, life-changing supports,” he says.

The National Disability Insurance Agency has 28 days to appeal the decision before the Federal Court.

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