NDIS Provider Inducement Ban

The ban at a glance

Providers will commit an offence under the NDIS Act if they offer or hand over any benefit that could reasonably be expected to win them new business, keep existing clients or grow the supports they deliver.

• The law defines an NDIS Provider broadly: any person or business, apart from the Participant, that receives payment from a Participant’s NDIS funding. Everyone from sole traders to large organisations is covered, including Support Coordinators and Plan Managers.
• It makes no difference whether the Provider is registered, or whether the benefit goes to a Participant, a relative, a carer or a referral source.
• There is no minimum value. A small gift can still breach the law if it could influence a decision.
• Making the offer is enough. A flyer promising a free tablet to anyone who signs up breaches the law as soon as it is handed out, even if nobody takes up the offer.

What’s banned in all cases

The Government has confirmed that some items are prohibited in every situation, and future NDIS rules will not be able to allow them. These are:

• alcohol
• tobacco and nicotine products, including e-cigarettes, vapes and related accessories
• illegal drugs
• money in any form, including cash and cash equivalents such as gift cards, store cards, vouchers, money orders and digital currency
• electronic devices, such as mobile phones, tablets and gaming consoles.

How to tell if something is an inducement

The Government’s fact sheet says the new offence stops Providers from giving or offering an inducement or a kickback. It describes a kickback as a payment, gift or other benefit given in return for a referral or for being treated favourably. This builds on earlier NDIA findings that Providers who pay referral fees or “incentives” are closely linked to fraud.

Section 73VA sets out three questions. A Provider is in breach when the answer to all three is yes:

1. Is something being given? This covers giving a gift or benefit, offering or promising one, or arranging for one to be given.
2. Is it extra to the support? The benefit is something on top of the service being paid for.
3. Could it sway a decision? It is reasonably likely to lead someone to choose the Provider, stay with them, add another support, increase hours or intensity, or hand over the management of plan funds.

You are also responsible for benefits handed out on your behalf. If a Worker, a sister company or a marketing contractor offers a reward to win clients for you, the responsibility sits with you.

What you can still offer

The NDIS Act will allow three exceptions:

• Legitimate pricing: discounts, fee reductions or similar benefits that form part of a genuine pricing practice.
• Branded merchandise: items carrying your own branding, such as a pen, notebook or water bottle.
• Items allowed by future rules: anything the NDIS rules specifically allow in future.

Providing the support itself is never an inducement.

Your action list

1. Audit your marketing. Review your website, socials, Google Business Profile, brochures and email templates for promotional terms such as “free”, “bonus”, “prize”, “reward” and “gift”.
2. Remove reward offers. Take down any incentive linked to new sign-ups, ongoing service, extra hours or referrals.
3. Stop referral payments. End referral fees and thank-you gifts, and get advice before continuing any paid referral arrangement.
4. Rethink end-of-year gifts. Swap wine hampers, vouchers and gadgets for a card or branded merchandise.
5. Brief your people. Make sure your Workers, contractors and marketing partners understand the new rules.
6. Update your Policies and Procedures. Review your gifts and benefits policy so it covers what your business gives as well as what it receives, and record each gift, who received it and the reason.
7. Watch for guidance. Look out for the upcoming NDIS rules on pricing and merchandise, and for guidance from the Commission.