Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) The CEO may, in writing, vary a participant's plan (except the participant's statement of goals and aspirations) if:
(a) the variation:
(i) is covered by subsection (1AA) (for a new framework plan) or (1A) (for an old framework plan); or
(ii) is a correction of a minor or technical error; and
(b) any conditions prescribed by the National Disability Insurance Scheme rules are satisfied.
Each variation must be prepared with the participant.
Permitted variations--new framework plans
(1AA) For the purposes of subparagraph (1)(a)(i), the following variations of a new framework plan are covered:
(a) a variation of the participant's reasonable and necessary budget covered by subsection (1AB);
(b) a variation relating to the general supports (if any) that will be provided to or in relation to the participant under the plan;
(c) a variation of the statement of participant supports included in the plan in relation to the management of:
(i) the funding for supports under the plan; or
(ii) other aspects of the plan;
(d) a variation of the maximum period of effect specified in the plan under paragraph 32D(2)(d);
(e) a variation of the circumstances in which the Agency must reassess the plan under this Division.
Note 1: A statement of participant supports in a participant's plan must give effect to the plan management request of a participant except in certain circumstances (see subsection 43(2)).
Note 2: In varying the participant's plan in relation to the statement of participant supports, the CEO must have regard to the matters set out in subsection (2A).
(1AB) For the purposes of paragraph (1AA)(a), the following variations of a participant's reasonable and necessary budget are covered:
(a) a variation of:
(i) the total funding amount for flexible funding; or
(ii) the total funding amount for a stated support or class of stated supports;
for the purposes of dealing with a variation of the maximum period of effect specified in the plan under paragraph 32D(2)(d);
(b) a variation to provide for a total funding amount for a stated support or class of stated supports;
(c) a variation of the number or duration of the funding periods for flexible funding, or for a stated support or class of stated supports;
(d) a variation of the proportion of the total funding amount for flexible funding, or for a stated support or class of stated supports, that will be provided under the plan during one or more funding periods;
(e) a variation to provide for:
(i) funding periods for a stated support or class of stated supports (disregarding paragraph 32G(5)(c) for this purpose); and
(ii) the proportion of the total funding amount for the stated support or class of stated supports that will be provided under the plan during each funding period;
(f) a variation of a restriction provided for under subsection 32F(6);
(g) if the CEO is satisfied that a circumstance mentioned in subsection 32F(7) exists--a variation to provide for a restriction under subsection 32F(6);
(h) if the CEO is satisfied that none of the circumstances mentioned in subsection 32F(7) exist--a variation to remove a restriction imposed under subsection 32F(6);
(i) a variation to provide for, change, add or remove a requirement under subsection 32H(1) relating to the acquisition or provision of supports;
(j) a variation of the participant's reasonable and necessary budget if:
(i) the CEO is satisfied that the participant requires crisis or emergency funding as a result of a significant change to the participant's support needs; or
(ia) the CEO is satisfied that the participant requires funding because the participant has experienced fraud or financial exploitation; or
(ib) the CEO is satisfied that the variation is necessary to prevent or lessen a threat to the participant's life, health or safety (whether current or future); or
(ii) after the participant's plan comes into effect, the CEO receives information in response to a request that had been made under subsection 36(2) or 50(2) in relation to the plan (other than a request made under subsection 50(2) for the purposes of varying the plan on the CEO's own initiative), and the variation relates to that information; or
(iii) the CEO is satisfied that a circumstance prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph exists in relation to the participant.
Note: Information mentioned in subparagraph (j)(ii) could relate to a support such as an item of assistive technology or a home modification.
Permitted variations--old framework plans
(1A) For the purposes of subparagraph (1)(a)(i), the following variations of an old framework plan are covered:
(a) a variation of the plan's reassessment date or the circumstances in which the Agency must reassess the plan under this Division;
(ab) if the statement of participant supports included in the plan specifies one or more funding component amounts--a variation of the categorisation of the reasonable and necessary supports, specified under paragraph 33(2)(b), into one or more groups of supports;
(ac) for the purposes of dealing with a variation covered by paragraph (ab) of this subsection--a variation of one or more funding component amounts, or the number of those amounts, specified in the statement of participant supports, other than a variation that would result in an increase in the total funding amount for the plan;
(ad) if the statement of participant supports included in the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole--the following variations of the statement:
(i) a variation of the number or duration of such funding periods;
(ii) a variation of the proportion of the total funding amount that will be provided as funding under the plan for reasonable and necessary supports during one or more funding periods;
(ae) if the statement of participant supports included in the plan specifies funding periods for one or more groups of reasonable and necessary supports--the following variations of the statement:
(i) a variation of the number or duration of the funding periods for such a group;
(ii) a variation of the proportion of the funding component amount for such a group that will be provided as funding under the plan, during one or more funding periods that group, for reasonable and necessary supports in that group;
(ag) a variation relating to the general supports (if any) that will be provided to or in relation to the participant under the plan;
(b) a variation of the statement of participant supports included in the plan in relation to the management of:
(i) the funding for supports under the plan; or
(ii) other aspects of the plan;
(c) a variation of the statement of participant supports included in the plan if:
(i) the statement specifies that a support is to be provided by a specified provider, or in a specified manner; and
(ii) the variation is to specify that the support is to be provided by another provider, or in another manner, as the case may be;
(d) a variation of the statement of participant supports included in the plan, or of the funding of supports under the plan, if:
(i) the CEO is satisfied that the participant requires crisis or emergency funding as a result of a significant change to the participant's support needs; or
(ii) after the participant's plan comes into effect, the CEO receives information in response to a request that had been made under subsection 36(2) or 50(2) in relation to the plan (other than a request made under subsection 50(2) for the purposes of varying the plan on the CEO's own initiative), and the variation relates to that information; or
(iii) the variation is made for the purposes of dealing with a change to the reassessment date of the participant's plan; or
(iv) the variation is a minor variation that results in an increase to the funding of supports under the participant's plan.
Note 1: Information mentioned in subparagraph (d)(ii) could relate to a support such as an item of assistive technology or a home modification.
Note 2: A statement of participant supports in a participant's plan must give effect to the plan management request of a participant except in certain circumstances (see subsection 43(2)).
Note 3: In varying the participant's plan in relation to the statement of participant supports, the CEO must have regard to the matters set out in subsection (3) of this section.
(1B) To avoid doubt:
(a) a variation covered by any of paragraphs (1A)(ab) to (ae) must be made in accordance with subsections 33(2A) to (2D) and any determination in force for the purposes of subsection 33(2E); and
(b) a total funding amount for an old framework plan cannot be varied except by a variation covered by paragraph (1A)(d) of this section.
Conditions not limited
(1C) The fact that a paragraph in subsection (1AA), (1AB) or (1A) covers only certain kinds of variations does not limit the power under paragraph (1)(b) for the National Disability Insurance Scheme rules to prescribe conditions that have the effect of limiting the kinds of variations that may be made under subsection (1).
Variation on request of participant or CEO's own initiative
(2) The CEO may vary the participant's plan on request of the participant or on the CEO's own initiative.
Requirements for CEO--new framework plans
(2A) In varying a new framework plan in relation to the statement of participant supports, the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) be satisfied as mentioned in paragraph 32D(6)(b) in relation to any general supports to be provided; and
(c) have regard to the principle that a participant should manage the participant's plan to the extent that the participant wishes to do so; and
(d) have regard to the operation and effectiveness of the plan and any previous plans of the participant; and
(e) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to the plan and any previous plans of the participant; and
(f) be satisfied of any matters specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
Requirements of CEO--old framework plans
(3) In varying an old framework plan in relation to the statement of participant supports, the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage the participant's plan to the extent that the participant wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant; and
(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to the plan and any previous plans of the participant.
Decision on request
(4) If the participant requests a variation of the participant's plan, the CEO must before the end of the period of 21 days beginning on the day the CEO receives the request:
(a) make a decision under subsection (1) varying the plan; or
(b) make a decision not to vary the plan; or
(d) inform the participant that the CEO requires further time to decide whether or not the plan needs to be varied.
Note: If the CEO informs the person that the CEO requires further time to decide whether or not the plan needs to be varied, see subsection (8) for the period for making a decision on the request.
(5) If the CEO does not do a thing under subsection (4) within that 21 - day period, the CEO is taken to have decided not to vary the plan.
Matters to which the CEO must have regard
(6) The National Disability Insurance Scheme rules may set out matters to which the CEO must have regard:
(a) in deciding whether to vary a participant's plan on the CEO's own initiative; or
(b) in doing a thing under subsection (4).
Time for decision on request
(8) If, under paragraph (4)(d), the CEO informs the participant that the CEO requires further time to decide whether or not the plan needs to be varied, the CEO must then vary the plan under subsection (1) or make a decision not to vary the plan:
(a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph (which may take account of section 50 (information and reports)); or
(b) if there are no such rules--as soon as reasonably practicable, including what is reasonably practicable having regard to section 50 (information and reports).
Variation may be different from the one the participant requested
(9) If the participant requests a variation of the participant's plan, any variation under subsection (1) may be different from the one requested.
When variation takes effect
(10) A variation under subsection (1) takes effect on the day specified in the variation (which must not be earlier than the day the variation is made).
Agency to give participant a copy of varied plan
(11) The Agency must provide a copy of the varied plan to the participant within 7 days of the variation taking effect.