Tips for ABA Practitioners assisting in NDIS Tribunal applications

Matthew Cobb-Clark

In the 2018-2019 financial year, over 1,200 people commenced proceedings in the Administrative Appeal Tribunal (Tribunal)’s National Disability Insurance Scheme (NDIS) Division.With increasing demand for access to the NDIS, it seems likely that the number of applications will grow. ABA practitioners are finding themselves assisting their clients in preparing NDIS documentation, as well as Tribunal applications. The purpose of this article is to provide a brief overview of a recent Tribunal decision involving ABA, which gives practitioners a good outline of how the Tribunal approaches cases involving ABA. 

In July 2019 the Tribunal handed down its decisions in FRCT and NDIA and WKZQ and NDIA The cases concerned twin boys with ASD. The applicants each sought funding for:

• 20 hours of ABA therapy per week, comprised of 2 hours of 1:1 therapy with a senior therapist, 4 hours of 1:2 therapy with a junior therapist and 2 hours of social skills group;

• 2 hours per month for ABA clinical meetings;

• 2 hours per month for ABA supervisor sessions;

• 4 hours per week of speech therapy; and

• color="#000000">an annual full speech assessment and summary report.

color="#000000" face="Ubuntu">In contrast, the NDIA offered funding for:

• 110 hours per year of capacity building supports for early childhood intervention through a 'keyworker model'. The ‘keyworker model’ involved a speech pathologist “giving access to a range of therapists”. It is unclear how this was to work in practice, given the different skill sets of speech therapists as distinct from other types of therapists;

• A 6-month transition away from ABA therapy, in the form of gradually-reducing ABA therapy to be done at home; and

• 192 hours per year of a support worker "to support the applicant and the family to access the community and to implement therapeutic activities into the applicant's everyday life and routine".

Among other things, the NDIA relied upon a report of Professors Roberts and Williams from March 2016. That report summarised some of the literature on ABA, which notes that ABA may be effective for children with ASD, but it is not clear that it is effective for all children.  The report stated that early intervention should commence as soon as autism is diagnosed,and it should be for a minimum of 15-25 hours per week. Other than stating that interventions should be evidence-based, the report did not favour one type of intervention over another.

In a supplementary report prepared for the NDIA, Professors Roberts and Williams stated: 

“The recommendation for early intervention in autism…includes working with children in natural environments to maximise the functional development of skills and provide maximum opportunities to interact with peers and develop social communication skills. Different providers define ‘in clinic’ differently, but it is likely ‘in clinic’ is not a natural context and would therefore not be the optimal setting for much intervention, especially once key elements of a desired skill or behaviour are mastered in that setting”

The Tribunal had to consider the requirements of s 34 of the National Disability Insurance Scheme Act 2013 (NDIS Act)were met. In order for funding to be provided for any support, the NDIA (or the Tribunal) must be satisfied that:

1. the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

2. the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

3. 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;

4. the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

5. 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;

6. the support is most appropriately funded or provided through the NDIS, 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 (e.g. the public health or education systems);

7. the support is not prescribed by the NDIS rules as a support that will not be funded or provided under the NDIS; and

8. the funding of the support complies with the methods or criteria (if any) prescribed by the NDIS rules for deciding the reasonable and necessary supports that will be funded under the NDIS.

The Tribunal found that both ABA and the NDIA's proposed keyworker model would assist the boys to pursue the goals, objectives and aspirations in their statements of goals and aspirations and therefore s 34(1)(a) was satisfied. In relation to s 34(1)(b) the Tribunal was satisfied that most of the ABA therapy would support the boys to facilitate their social and economic participation, as did the NDIA's proposed keyworker model. However, the Tribunal found that there was insufficient evidence to explain how the 2 hours of clinical meetings and 2 hours of supervisor sessions per month would assist the boys' social and economic participation.

Importantly, the Tribunal found that ABA and the keyworker model were not comparable models of support for the purposes of s 34(1)(c) of the NDIS Act. The NDIA's proposal to transition the boys away from ABA therapy over 6 months was not a genuine alternative to the 12 month program of intensive ABA and speech therapy proposed by the applicants. Additionally, the Tribunal was not satisfied that the NDIA's keyworker model would substantially improve the life stage outcomes for the boys, or be likely to reduce the cost of funding of supports for them in the long term. 

The Tribunal found that the evidence showed very clear and compelling reasons why the boys were participating in ABA therapy and speech therapy (in a clinical setting) at the current point in time. These included their challenging behaviour at home, the lack of ABA therapy providers where the boys lived, and their continuing participation in their community. The Tribunal left open the possibility that the boys may eventually be able to engage in appropriate behaviour in their home and preschool, and possibly be placed in a mainstream school. This would affect the amount of therapy that they would require in future years.

However, the Tribunal was not satisfied that the 2 hours per week of social skills group represented value for money.  The Tribunal was also not satisfied that the ABA clinical meetings and supervisor sessions also represented value for money. 

For completeness, the Tribunal considered whether the NDIA's proposed keyworker model represented value for money. The Tribunal identified a number of problems with the model. In particular, the model did not provide for ABA therapy, which was the therapy preferred by the boys' parents. The NDIA's desire to transfer the boys away from ABA therapy in direct contradiction to the parents' wishes was completely inconsistent with the objects and general principles of the NDIS Act, which reinforce the exercise of choice in the planning and delivery of supports, and acknowledge the role of families in this process. The proposal to decrease ABA therapy was counterintuitive to the evidence that showed the program was having a beneficial effect on the boys' skills development and their behaviour.

This decision is important for ABA practitioners involved in preparing NDIS applications, including Tribunal applications. I consider that it shows the following key points:

• Although practitioners are convinced of the therapeutic merits of ABA, anecdotally the NDIA is reluctant to support it. It is perceived as expensive and proprietary. Practitioners need to be able to demonstrate to the NDIA not just why ABA is good, but why it is better than the other evidence-based forms of treatment for autism. The ABA profession should look to support more empirical research that establishes this.

• The Tribunal emphasised the importance of parent choice in determining the type of therapy to be funded. That means that ABA practitioners need to not just convince the NDIA/Tribunal of ABA’s benefits; they need to be able to convince parents that it is the right choice as well.

• More needs to be done to establish the clinical benefits of group social skills programs – the Tribunal was unconvinced that these represented value for money.

• ABA practitioners may need to do more to make clear that ABA services can be provided in home as well as in a clinical setting. The NDIA's support for the keyworker model was based in part on research that suggests that therapy is more effective in natural settings, but ABA can of course take place in natural settings. 

• Obviously, each child with ASD is different and has different therapy needs. In preparing material for use by the NDIA/Tribunal, ABA practitioners should identify how the proposed therapy meets the criteria in s 34 of the NDIS Act for that particular child.

^[1] Administrative Appeals Tribunal, 2018-2019 at a Glance https://www.aat.gov.au/about-the-aat/corporate-information/annual-reports/2018-19-annual-report/2018-19-at-a-glance

^[2] [2019] AATA 1478 It is common for applicants in the NDIS Division of the Tribunal to be given four-letter pseudonyms.

^[3] [2019] AATA 1480

^[4] J Roberts and K Williams, Autism Spectrum Disorder: Evidence-Based/Evidence-Informed Good Practice for Supports provided to Preschool Children, their Families and Carers (March 2016), available here.

^[5] Roberts and Williams, p 27

^[6] Roberts and Williams, p 34

^[7] Roberts and Williams, p 10