Changes to the NDIS Code of Conduct and new price differentiation guidelines

The National Disability Insurance Scheme (NDIS) Code of Conduct now includes rules about Price Differentiation. In this article we recap the changes and provide practical tips for NDIS providers to ensure compliance.

New guidelines and Code changes

The NDIS recently released new price differentiation guidelines for providers and participants. These guidelines follow the 2023 introduction of the National Disability Insurance Scheme (Code of Conduct) Amendment (2023 Measures No. 1) Rules 2023, which made changes to the NDIS Code of Conduct and other rules.

What is price differentiation?

Price differentiation involves conduct where an NDIS provider represents or charges a higher price for goods for NDIS Participants than for those who are not participants. Price differentiation has been identified by the NDIS as a potential 'sharp practice', after the NDIS has received reports of this conduct, particularly for equipment and therapy supports.

What are the new rules and guidelines?

The NDIS Code of Conduct now provides that a Code-covered person must not, without a reasonable justification:

1. represent a price for the supply of goods for a participant that is higher than the price represented for the supply by the Code‑covered person of the same (or substantially the same) goods for a person who is not a participant; or
2. charge a price for the supply of goods for a participant that is higher than the price that the Code‑covered person charges for the same (or substantially the same) goods for a person who is not a participant.

The NDIS price differentiation guidelines for providers goes on to say that if a provider sets a different price for a product or service for NDIS participants compared to a person outside the NDIS, the NDIS Quality and Safeguards Commission expects that the provider will be able to explain the difference.

What are the penalties of non-compliance?

Depending on the nature of the non-compliance, the provider's response and the impact of the conduct on NDIS participants, the Commission may:

• monitor a provider's compliance, including through compliance review and investigation;
• issue a corrective action request, warning letter, compliance notice or infringement notice;
• require a provider to enter into enforceable undertakings;
• vary, suspend or revoke a provider's registration;
• issue banning orders; and/or
• take court-based action such as seeking an injunction or civil penalties.  

What can providers do?

We recommend providers review their compliance through the following activities:

• Review pricing and pricing policies to ensure pricing is fair and transparent
• Ensure any price differentiation is able to be explained and there is a documented record of the provider having considered the differentiation and the factors that justify the different pricing
• Review participant agreements to ensure they are compliant with the changes and the new Code
• Invest in regular training programs to ensure staff are informed and competent in their roles.

Support from Thomson Geer

At Thomson Geer, we offer:

• Agreement review: Ensuring agreements are up to date with the latest changes.
• Compliance audits: Identifying and providing advice on how to rectify gaps in practices.
• Policy development: Developing or updating policies meeting new requirements.
• Tailored training: Helping to equip staff with necessary knowledge and skills.

For more information please contact our Health, Aged Care and Retirement team at Thomson Geer.

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