Changes to OPA service agreements

Version 6.0

1. Service provider responsibilities – have been updated to increase participant safeguarding and make annexing of service provider terms and conditions easier as follows:
   1. Reporting serious concerns to the guardian – clause 3.3.1 has been added to require the service provider to report serious concerns about the participant’s health, safety and wellbeing to the guardian within 24 hours.
   2. Contract management improvements – clauses 3.3.5 and 3.3.6 have changed as follows:
      1. Appendix 2 – Appendix 2 has replaced reference to an annexure document at clause 3.3.5. Appendix 2 has been added to the end of the OPA service agreement and provides opportunity for service providers to add their own service provider terms and conditions and documents containing their service provider terms and conditions to the OPA service agreement as an appendix.
          
      2. Indemnity – clause 3.3.5 has been updated to prevent service providers from adding their own indemnity clause/s into Appendix 2.
          
      3. Amendments to Appendix 2 – clause 3.3.6 has been adjusted to enable service providers to update their service provider terms and conditions by providing written notice to the guardian in the form of a replacement Appendix 2 document.
          
   3. Compliance with NDIS code of conduct rules – clause 3.3.11 has been added to specifically draw the service provider’s attention to the requirement under the NDIS Code of Conduct Rules 2018 to declare all conflicts of interest, real or perceived. Where real or perceived conflicts of interest exist, these must be declared to the guardian for their approval.
       
   4. Notification of NDIS compliance actions – clause 3.3.12 has been added to require service providers to notify the guardian of any NDIS compliance action taken against the service provider by the NDIS Quality and Safeguards Commission.
       
2. Guardian’s responsibilities  – new clauses have been added to provide further clarity about the role and responsibilities of a guardian with the NDIS services function, as required under the Guardianship and Administration Act 1990 as follows:
    
   1. Guardian’s decisions – clause 3.5.6 (3.5.5 in the plan management service agreement) has been added to confirm that a guardian will make decisions, for example a decision to provide consent to share information, in conjunction with the delivery of NDIS services.
       
   2. Recording service delivery information – clause 3.5.7 (3.5.6 in the plan management service agreement) has been added to clarify that a guardian will endeavour to acknowledge receipt of, but not sign, service delivery information.
       
3. Participant rights after cessation of the Public Advocate’s appointment - clause 3.1.6 has been expanded to better enable the participant or a private guardian, if they so choose, to enforce the terms of the OPA service agreement after the Public Advocate’s appointment has ceased
    
4. Conflict and precedence provisions - clause 3.4.4A has been updated to exclude clauses 3, 4, 5 (support coordination service agreement only) 7.1, 7.2, 7.4 and 8.8 (9.8 in the support coordination service agreement) from clause 3.4.4. This tightening of the conflict and precedence provisions is to better support OPA to keep participants safe while enabling increased flexibility to service providers through populating Appendix 2.
   
   More information about how these changes enable OPA to appropriately balance service provider flexibility with adult safeguarding requirements is available in the Frequently Asked Questions section of the ‘Service Agreements - National Disability Insurance Scheme for service providers’ page on the OPA website.
    
5. Termination – clause 7.1.2 (8.1.2 in the support coordination service agreement) has been added to enable service providers to propose an extension to the notice period required where a guardian terminates the service agreement under clause 7.1 (termination for convenience). The notice period can be extended to a maximum of 90 days and would be proposed in the service provider’s terms and conditions. The addition of this clause strikes a balance between locking down the termination clauses through conflict and precedence provisions but still enabling service providers scope to operate their business as per relevant elements of their own business model.
   
   This clause has been added to all OPA service agreements except for the ‘specialist disability accommodation service agreement’, where 90 days’ notice is a mandatory requirement under the NDIS (Specialist Disability Accommodation) Rules 2021.
    
6. Confidential information – clause 3.8 has been added to stipulate OPA’s requirements about the participant’s confidential information.
    
7. Support coordinator’s notation  – an instruction has been added to clarify that the support coordinator is required to:
   1. Undertake due diligence to confirm that the support/s that are the subject of the service agreement are NDIS supports, or replacement support/s approved by the National Disability Insurance Agency (NDIA) for the participant and are to be delivered as set out in the NDIS plan.
   2. Undertake due diligence to confirm that NDIS funding is available in the participant’s plan to allocate to the service provider to pay for the supports set out in the service agreement.  
   3. Perform a ‘compliance and enforcement actions’ check through the NDIS Quality and Safeguards Commission website and advise the guardian of any adverse findings.
       
8. Definitions - extended to include ‘Confidential Information’, ‘NDIS Code of Conduct Rules’, ‘NDIS Compliance Action’, ‘NDIS Supports’. and ‘Replacement Support’.
   
   ‘Terms and Conditions’ has been renamed ‘Service Provider’s Terms and Conditions’ and the definition has been expanded to clarify that ‘Service Provider’s Terms and Conditions’ are a separate appendix to the OPA Service agreement and not a service agreement. The term ‘Service Provider’s Terms and Conditions’ incorporates plan management providers, specialist disability accommodation providers and support coordination providers through its definition.
   
   ‘Replacement Support’ has not been added to the ‘plan management’ and ‘specialist disability accommodation’ service agreements, as these documents do not refer to ‘Replacement Support’. Supports which are ‘stated’ by the NDIA cannot be replaced. Plan Management and Specialist Disability Accommodation are both always ‘stated’ by the NDIA.
   
   The definition of ‘Service Agreement’ has been expanded to clarify that service agreement refers to an OPA service agreement and that service provider terms and conditions are not a service agreement.
    
9. Minor typographical errors – corrected.
    
10. Support coordination service agreement – the following changes have been made exclusively to the support coordination service agreement:
     
    1. Support coordinator responsibilities – clause 3.3.7 has been strengthened to describe actions required to coordinate supports which now includes making support recommendations to the guardian and checking the NDIS Quality and Safeguards Commission website to see if there are current compliance actions against a service provider.
        
    2. Multiple support coordination providers - the support coordination service agreement has been updated to better accommodate the simultaneous provision of support coordination services by more than one support coordination provider as follows:
        
       1. The ‘Service’ box in the ‘Parties’ section on page one has been unlocked to enable the support coordination provider to specify whether they are providing specialist support coordination, support coordination, or recovery coach services.
           
       2. A ‘Support Coordinator’s Notation’ page has been added to clarify that the support coordination provider who has overall responsibility for service design, is to confirm that the services of the other support coordination provider/s are part of the overall design of support coordination services, and due diligence to confirm the availability of budget has been carried out.
           
    3. Compensation – clause 3.5.5 is a standard clause across the suite of OPA service agreements to enable a guardian to account for compensation in their services decision making. This clause has been added to the ‘support coordination service agreement’ to enable a compensation reduction amount to be applied to support coordination if agreed.
        
    4. Definitions - ‘Support Coordination Provider’ and ‘Recovery Coach’ have been added to the definitions.
        
11. Specialist disability accommodation (SDA) service agreement – addition of a standard safeguarding clause as follows:
     
    1. clause 3.3.2 has been added to require that specialist disability accommodation (SDA) providers keep the guardian informed of any changes to the participant’s situation which may impact on the provision of services or the participant’s support needs.
       
       This is a standard clause in other OPA service agreements, which was previously not included in the ‘SDA service agreement’ because the nature of the service is brick and mortar. OPA’s view is now that SDA providers may have information about the safety of participants, which should be shared with guardians.
12. Plan management service agreement – addition of a standard safeguarding clause as follows:
    1. clause 3.3.10 has been added to require that plan management providers deliver supports in such a way as to give effect to the personal and lifestyle decisions of the guardian.
       
       This is a standard clause in other OPA service agreements, which was previously not included in the ‘plan management service agreement’ because the nature of the service is administrative. OPA’s view is now that in some exceptional circumstances this clause may be relevant to plan management providers.
        
13. Service Agreement Amendment Schedules – all documents have been updated to include clarity of responsibilities in the ‘Support Coordinator’s Notation’.