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This instrument contains matters the NDIS Quality and Safeguards Commissioner will consider when assessing whether registered NDIS providers have complied with requirements imposed by sections 13 and 13A of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 to provide notice of certain changes and events to the Commissioner.
Administered by: Social Services
Registered 24 Dec 2019
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Commonwealth Coat of Arms of Australia

 

 

National Disability Insurance Scheme (Registered NDIS Provider Notice of Changes and Events) Guidelines 2019

I, Graeme Head, Commissioner of the NDIS Quality and Safeguards Commission, make the following Guidelines.

Dated  23 December 2019

Graeme Head

Commissioner of the NDIS Quality and Safeguards Commission

 

 

 



Introduction

 

This instrument is made by the Commissioner of the NDIS Quality and Safeguards Commission (NDIS Commission).  The Commissioner is assisted by staff of the NDIS Commission to perform a range of functions under the National Disability Insurance Scheme Act 2013 (the Act). These include the Commissioner’s registration and reportable incident functions, including the function of monitoring registered NDIS providers’ compliance with their conditions of registration.

 

Section 73H of the Act provides that the National Disability Insurance Scheme rules may determine that each registration, or each registration included in a specified class of registration, is taken to include one or more specified conditions.

 

Sections 13 and 13A of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018, as (respectively) substituted and inserted by the National Disability Insurance Scheme (Provider Registration and Practice Standards) Amendment (2019 Measures No. 1) Rules 2019, impose conditions on each registered NDIS provider relating to the giving of notice to the Commissioner of certain changes and events.

 

Section 13 imposes a condition of registration on each registered NDIS providers to give the Commissioner notice of certain changes, being changes to contact details and changes in the scale of the provider. Notice of the change must be given by the registered NDIS provider, in the form approved by the Commissioner, as soon as practicable after the earlier of the following times:

 

            (i)         when the provider becomes aware that the change will occur;

            (ii)        when the change occurs.

 

Section 13A imposes a condition of registration on each registered NDIS provider to give the Commissioner notice of certain events, including the occurrence of events relating to the provider’s suitability to be registered (such as the provider becoming insolvent, or becoming the subject of adverse findings or enforcement action by relevant authorities) and significant changes in the organisation or governance arrangements of the provider. Notice of the event must be given by the registered NDIS provider as soon as practicable after the event occurs, in the form approved by the Commissioner.

 

Section 13 helps to ensure that the NDIS Commission is kept informed of contact details for the NDIS registered provider, which is critical to the Commissioner communicating with the provider, liaising with the provider regarding any complaints made to the Commissioner about it, and, where relevant, when the Commissioner is undertaking his/her compliance and enforcement activities.

 

These conditions of registration also help to ensure that the Commissioner is given an opportunity to consider if he/she remains satisfied that the provider and the provider’s key personnel are suitable to be, respectively, a registered NDIS provider and involved in the provision of the supports or services concerned. The occurrence of particular events in relation to a registered NDIS provider may indicate that there is a risk that NDIS participants may be harmed by adverse changes.

 

Sections 13 and 13A also support the Commissioner’s market oversight function under section 181E(i) of the Act, specifically, enabling the Commissioner to monitor changes in the NDIS market that may indicate emerging risk.

 

Pursuant to section 73J of the Act, a registered NDIS provider may be liable to a civil penalty if the provider breaches a condition to which the provider’s registration is subject.

 

Subsection 181D(2) provides that the Commissioner may, by notifiable instrument, make guidelines relating to the performance of any of the functions mentioned in subsection 181D(1), which includes the Commissioner’s registration and reportable incident functions. These guidelines contain matters that the Commissioner will take into account in assessing compliance by registered NDIS providers with the conditions of registration contained in sections 13 and 13A of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.

 


 

Part 1 – Preliminary

1 Name

                   This instrument is the National Disability Insurance Scheme (Registered NDIS Provider Notice of Changes and Events) Guidelines 2019.

2 Commencement

                   This instrument commences on 1 January 2020.

3 Authority

                   This instrument is made under subsection 181D(2) of the National Disability Insurance Scheme Act 2013.

4 Definitions

Note:          A number of expressions used in this instrument are defined in section 9 of the Act, including the following:

(a)    Agency;

(b)    Commission;

(c)    Commissioner;

(d)    Key personnel;

(e)    Participant;

(f)    Registered NDIS provider;

(g)    Supports.

                   In this instrument:

Act means the National Disability Insurance Scheme Act 2013.

Commission System means the online system or portal that the Commission, approved quality auditors and NDIS providers use for the purposes of the Act, including the accessing and maintenance of records of registration.

NDIS Provider Registration and Practice Standards Rules means the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.

Transitioned provider has the same meaning as in section 4 of the National Disability Insurance Scheme (Quality and Safeguards Commission and Other Measures) Transitional Rules 2018.

Worker means any of the following:

                     (a)  a person employed or otherwise engaged by a registered NDIS provider;

                     (b)  a partner (of a partnership that is a registered NDIS provider) whose role is of the kind mentioned in section (b) or (c) of the definition of risk assessed role in the National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018;

                     (c)  an individual (who is a registered NDIS provider) whose role is of the kind mentioned in paragraph  (b) or (c) of the definition of risk assessed role in the National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018.

Part 2 – Purpose of Guidelines

5 Purpose

             (1)  Sections 13 and 13A of the NDIS Provider Registration and Practice Standards Rules contain conditions of registration to which each registered NDIS provider is subject.  These conditions require registered NDIS providers to give the Commissioner notice of certain changes and certain events.

             (2)  Section 73J of the Act provides that a registered NDIS provider may be liable to a civil penalty if the provider breaches a condition to which the provider’s registration is subject.

             (3)  These Guidelines contain matters that the Commissioner will take into account in assessing whether a registered NDIS provider has complied with the conditions of registration contained in sections 13 and 13A of the NDIS Provider Registration and Practice Standards Rules.

Part 3 – Giving Commissioner notice of certain changes

6  Changes to contact details

             (1)  Paragraph 13(1)(a) of the NDIS Provider Registration and Practice Standards Rules provides that the registration of each registered NDIS provider is subject to the condition that the provider must give the Commissioner notice of a change to any of the provider’s contact details that have been provided to the Commissioner.

             (2)  The Commission System records the contact details of the registered NDIS provider which were provided to the Commissioner in the provider’s application to be a registered NDIS provider in accordance with section 73C of the Act. For transitioned providers, contact details of the registered NDIS provider will have been provided to the Commissioner by the Agency.

             (3)  Changes in contact details must be provided to the Commissioner by a registered NDIS provider in accordance with section 13 of the NDIS Provider Registration and Practice Standards Rules. In this way, registered NDIS providers are under a continuous obligation during the period of registration to give notice of a change to any of the provider’s contact details, including any change since the last notice of a change in contact details was given by the registered NDIS provider under section 13.

             (4)  Registered NDIS providers are able to view and update their contact details currently held by the Commissioner by accessing the Commission System. 

             (5)  Registered NDIS providers must notify the Commissioner of any changes to their contact details as listed below:

(a)    Business/trading name, and legal name;

(b)   Name, position, telephone number, mobile number (if applicable) and direct email address of the provider’s primary contact;

(c)    Postal address;

(d)   Business address (where the registered NDIS provider is a body corporate, this will be the head office, registered office or principal office);

(e)    Main telephone number;

(f)    Main email address.

7  Change in the scale of the provider relating to registered classes of supports

(1)  Paragraph 13(1)(b) of the NDIS Provider Registration and Practice Standards Rules requires registered NDIS providers to give the Commissioner notice of a change in the scale of the provider relating to the supports or services the provider is registered to provide.

(2)    A change in the scale of the provider includes a change to the geographical area in which the provider provides a support or service and a change to the locations at or from which the provider provides a support or service. 

(3)    The Commission System records the geographical area in which providers provide a support or service and the locations (referred to as outlets) at or from which the provider provides a support or service.  Registered NDIS providers are able to view this information by accessing the Commission System.

(4)  An outlet is described on the Commission System as either a physical outlet (such as a clinic, group centre or shopfront) or a mobile outlet (where the registered NDIS provider delivers supports and services in an NDIS participant’s home or at other non-fixed addresses).

Changes to geographical area

(5) The Commissioner considers that changes to the geographical area in which a provider provides a support or service include:

(a)    The commencement of delivery of supports or services by the provider in a State or Territory in which the provider did not previously deliver any such supports or services;

(b)   The cessation of delivery of all supports or services by the provider in a State or Territory in which the provider previously delivered such supports or services.

Changes to service locations

(6)  The Commissioner considers that the following matters are changes to the location from which a provider provides a support or service which must be notified to the Commissioner:

(a)    Changes to the provider’s outlet details recorded in the Commission System including the address and the type of outlet (i.e. whether it is a mobile or physical outlet);

(b)   The addition of new outlets from which the provider provides a support or service;

(c)    The cessation of the provision of supports or services from an existing outlet from which the provider has been providing supports or services.

Example 1

Provider A applies to be registered to provide the following supports: Therapeutic Supports and Early Intervention supports for early childhood.

In its application for registration, Provider A advises the Commissioner that it delivers all of the supports it is seeking to be registered to provide from two outlets (shopfronts): one in the Northern Territory and one in South Australia.

After Provider A has been registered, it decides to close its Northern Territory shopfront outlet and open a shopfront in Queensland.  It also decides to use a mobile outlet in South Australia instead of the shopfront.

In this example, Provider A would be required to notify the Commissioner of these changes by adding and removing outlet information held within the Commission System, including providing information about the new outlets and their geographic service areas.

Changes to number of participants

(7)    Subparagraph 13(1)(b)(iii) of the NDIS Provider Registration and Practice Standards Rules provides that a change in the scale of a registered NDIS provider includes a significant increase or decrease in the number of participants being provided a support or service by the provider.

(8)    The Commissioner considers that, in assessing whether there is a significant increase or decrease in the number of participants being provided a support or service by the provider, an increase or decrease in the number of relevant participants should be assessed relative to the number of participants recorded in the Commission System as being provided with supports or services by the registered NDIS provider.

Note:              The Commission System will record the total number of participants upon registration of a provider and will update this number after being notified by a provider of a significant increase or decrease in participant numbers.

(9)    The Commissioner considers that an increase or decrease in the number of participants being provided a support or service by the provider will be significant:

(a)    where the number of participants recorded in the Commission’s System is 200 or greater—the increase or decrease is at least 25 per cent of that number;

(b)   where the number of participants recorded in the Commission’s System is fewer than 200—the increase or decrease is at least 50% of that number.

       Changes to number of workers

(10)     Subparagraph 13(1)(b)(iv) of the NDIS Provider Registration and Practice Standards Rules provides that a change in the scale of the provider includes a significant increase or decrease in the number of workers providing a support or service on behalf of the provider.

(11)The Commissioner considers that, in assessing whether there is a significant increase or decrease in the number of workers providing a support or service on behalf of the provider, an increase or decrease in the number of relevant workers should be assessed relative to the number of workers recorded in the Commission System as providing a support or service on behalf of the provider.

Note:              The Commission System will record the number of workers upon registration of a provider and will update this number after being notified by a provider of a significant increase or decrease in worker numbers.

(12)The Commissioner considers that an increase or decrease in the number of workers will be significant where:

(a)    The decrease in workers is unexpected or of such a magnitude that the provider will be unable to provide continuity of services or supports to the participants who currently receive such services or supports from the provider; or

(b)   The change relates to a restructuring of the provider’s organisation resulting in a significant expansion or reduction in the scale of the provider.

Part 4 – Giving Commissioner notice of certain events

8  Paragraph 13A(1)(a)- Significant effect on ability to comply with registration conditions

             (1)  Paragraph 13A(1)(a) of the NDIS Provider Registration and Practice Standards Rules requires a registered NDIS provider to give the Commissioner notice of an event that significantly affects the provider’s ability to comply with any of the provider’s conditions of registration.

             (2)  The registered NDIS provider’s conditions of registration are those set out in subsection 73F(2) of the Act, the conditions (if any) imposed by the Commissioner under section 73G of the Act, and the conditions determined by the National Disability Insurance Scheme rules under section 73H of the Act.

             (3)  One such condition of registration applying to all registered NDIS providers is that the person comply with all applicable standards and other requirements of the NDIS Practice Standards.  

             (4)  Registered NDIS providers are issued with a certificate of registration which sets out the conditions of their registration.

             (5)  The Commissioner considers that the following matters are some examples of events that significantly affect a registered NDIS provider’s ability to comply with the provider’s conditions of registration:

(a)      Events that prevent or extensively limit the provider’s ability to effectively conduct its operations and deliver ongoing supports or services to NDIS participants;

(b)     Events that prevent or extensively limit the provider’s ability to deliver supports and services in a manner which complies with any of the applicable NDIS Practice Standards.

Example 2

Provider B is a large registered NDIS provider that is registered to provide the following supports or services: Specialist positive behaviour support, Assistance with daily life tasks in a group shared living arrangement and Implementing regulated restrictive practices.

During the course of its ordinary business, the premises used by Provider B to host its information technology (IT) infrastructure are destroyed by a bushfire. Multiple outlets are supported by the IT network, which stores and hosts NDIS participants’ personal information, service agreements, behaviour support plans, incident and complaint management systems as well as supporting and enabling core business activities.  Each outlet directly accesses and updates information on the IT network.  The destruction of the IT infrastructure means Provider B has no records about NDIS participants and is significantly limited in its ability to deliver services.

In this example, the registered NDIS provider would be required to advise the NDIS Commission of this event.  The destruction of the IT infrastructure would significantly affect Provider B’s ability to manage NDIS participants’ information and maintain appropriate complaints management and incident management systems in a way that complies with the Practice Standards for governance and operational management.  The loss of behaviour support plans and records would impair the provider’s ability to lodge such plans and records in compliance with the Specialist behaviour support Practice Standards. 

9  Paragraph 13A(1)(b)- Adverse changes to access to services

             (1)  Paragraph 13A(1)(b) of the NDIS Provider Registration and Practice Standards Rules requires a registered NDIS provider to give the Commissioner notice of a change that adversely affects access by a person with disability to the supports or services the provider is registered to provide.

             (2)  The Commissioner considers that the following matters are some examples of changes that adversely affect access by a person with disability to the supports or services the provider is registered to provide:

(a)    A decision of the provider to cease accepting, on a permanent basis, any new participants for supports or services that the provider is registered to provide;

(b)     The temporary cessation of the provision of supports or services that the provider is registered to provide where this will mean persons with disability will be unable to receive such supports or services during the temporary cessation period and this will be detrimental to their health and well-being. This does not apply to situations where a provider ceases services for short periods and this has been notified to persons with disability who either do not need supports or services during the temporary cessation period or are able to make alternative arrangements for these during that period;

Note:     The NDIS Practice Standards relating to governance and operational management require registered NDIS providers to ensure NDIS participants have access to timely and appropriate supports without interruption (Standard 16: Continuity of supports).

(c)      A significant increase in wait times for the provider’s provision of supports or services to participants that the provider is registered to provide;

(d)     A significant shortfall in available workers of the provider to provide the supports or services the provider is registered to provide.

10  Paragraph 13A(1)(c)- Adverse changes in financial capacity

             (1)  Paragraph 13A(1)(c) of the NDIS Provider Registration and Practice Standards Rules requires a registered NDIS provider to give the Commissioner notice of an adverse change in the provider’s financial capacity to provide any of the supports or services the provider is registered to provide.

             (2)  The Commissioner considers that the following matters are some examples of adverse changes in the provider’s financial capacity to provide any of the supports or services the provider is registered to provide:

(a)    Where the provider is the subject of legal proceedings or other action which seek to have it declared bankrupt, enter liquidation, made an insolvent under administration or become a Chapter 5 body corporate (within the meaning of the Corporations Act 2001 (Cth));

(b)     Where the provider has been served with a statutory demand under the Corporations Act 2001 (Cth) for the recovery of a debt;

(c)      Where the provider is unable to meet workforce payroll obligations for more than two consecutive payroll periods.

11  Paragraph 13A(1)(d)- Change in organisation or governance arrangements

             (1)  Paragraph 13A(1)(d) of the NDIS Provider Registration and Practice Standards Rules requires a registered NDIS provider to give the Commissioner notice of a significant change in the organisation or governance arrangements of the provider.

             (2)  The Commissioner considers that the following matters are some examples of significant changes in the organisation or governance arrangements of the provider:

(a)    A change in the business name, trading name or legal entity name of the provider;

(b)   A change in the Australian Business Number (ABN) or Australian Company Number (ACN) such as the cancellation or expiration of the ABN or ACN;

(c)    The closure, purchase, sale, merger or transfer of the whole or part of the business of the provider;

(d)   A change in membership of the provider’s key personnel (as defined by section 11A of the Act) including a change to the partners of a partnership, the directors of corporations and changes to senior managers such as Chief Executive Officers, who are responsible for executive decisions of the provider.

12  Paragraph 13A(1)(e)- Events related to provider suitability

             (1)  Paragraph 13A(1)(e) of the NDIS Provider Registration and Practice Standards Rules requires a registered NDIS provider to give the Commissioner notice of an event, relating to the suitability of the provider to provide supports or services to people with disability, to which the Commissioner would be required to have regard under any of the paragraphs 9(2)(c) to (h) of the NDIS Provider Registration and Practice Standards Rules if the provider were an applicant for registration as a registered NDIS provider.

(2)   A registered NDIS provider must therefore give the Commissioner notice of the following events referred to in paragraphs 9(2)(c) to (h):

 

§  9(2)(c) - the provider’s conviction of an indictable offence against a law of the Commonwealth or of a State or Territory;

§  9(2)(d) - the insolvency of the provider or the placing of the provider under administration;

§  9(2)(e) and 9(2)(f) - the making of adverse findings about the provider or the taking of enforcement action against the provider by any of the following:

 

                                                                             i.     a Department of, or an authority or other body established for a public purpose by, the Commonwealth, a State or a Territory, including one with responsibilities relating to the quality or regulation of services provided to people with disability, older people or children;

                                                                            ii.     the Australian Securities and Investment Commission;

                                                                          iii.     the Australian Charities and Not‑for‑profits Commission;

                                                                          iv.     the Australian Competition and Consumer Commission;

                                                                           v.     the Australian Prudential Regulation Authority;

                                                                          vi.     the Australian Crime Commission;

                                                                        vii.     AUSTRAC;

                                                                       viii.     a body of a State or Territory that is equivalent to a body mentioned in any of subsections (ii) to (vii);

                                                                          ix.     a work health and safety authority of a State or Territory

 

§  9(2)(g) - the making of adverse findings about the provider or of a judgement relating to the provider in relation to fraud, misrepresentation or dishonesty in any administrative, civil or criminal proceedings, or the fact that the provider is currently party to any proceedings that may result in the provider being the subject of such findings or judgment;

§  9(2)(h) - the disqualification of the provider from managing corporations under Part 2D.6 of the Corporations Act 2001 (Cth).

13  Paragraph 13A(1)(f)- Events related to key personnel suitability

             (1)  Paragraph 13A(1)(f) of the NDIS Provider Registration and Practice Standards Rules requires a registered NDIS provider to give the Commissioner notice of an event, relating to the suitability of the provider’s key personnel to be involved in the provision of supports or services that the provider is registered to provide, to which the Commissioner would be required to have regard under any of the paragraphs 10(2)(b) to (g) of the NDIS Provider Registration and Practice Standards Rules if the provider were an applicant for registration as a registered NDIS provider.

   (2)  A registered NDIS provider must therefore give the Commissioner notice of the following events relating to a member of its key personnel as referred to in paragraphs 10(2)(b) to (g):

 

§  10(2)(b) - the member’s conviction of an indictable offence against a law of the Commonwealth or of a State or Territory;

§  10(2)(c) - the member becoming insolvent under administration;

§  10(2)(d) and 10(2)(e) - the making of adverse findings about the member or the taking of enforcement action against the member by any of the following:

 

                                                                             i.     a Department of, or an authority or other body established for a public purpose by, the Commonwealth, a State or a Territory, including one with responsibilities relating to the quality or regulation of services provided to people with disability, older people or children;

                                                                           ii.     the Australian Securities and Investments Commission;

                                                                         iii.     the Australian Charities and Not‑for‑profits Commission;

                                                                         iv.     the Australian Competition and Consumer Commission;

                                                                           v.     the Australian Prudential Regulation Authority;

                                                                         vi.     the Australian Crime Commission;

                                                                       vii.     AUSTRAC;

                                                                     viii.     a body of a State or Territory that is equivalent to a body mentioned in any of subsections (ii) to (vii);

                                                                         ix.     a work health and safety authority of a State or Territory

 

§  10(2)(f) - the making of adverse findings about the member or of a judgement relating to the member in relation to fraud, misrepresentation or dishonesty in any administrative, civil or criminal proceedings, or the fact that the member is currently party to any proceedings that may result in the member being the subject of such findings or judgment;

§  10 (2)(g) - the disqualification of the member from managing corporations under Part 2D.6 of the Corporations Act 2001(Cth).

(3)     Notification of the events in the preceding subsection should be made in relation to:

(a)    a member of the provider’s key personnel that the Commissioner was satisfied, under paragraph 73E(1)(c) of the Act, as suitable to be involved in the provision of supports or services for which the provider was registered to provide; and

(b)   a person who has become a member of the provider’s key personnel since the Commissioner registered the provider as a registered NDIS provider.

Part 5 – Other matters in relation to giving notice of changes and events

14  Giving notice under both sections 13 and 13A

(1)   The Commissioner will approve forms of notice for registered NDIS providers to notify the Commissioner of changes or events as required under section 13 and 13A of the NDIS Provider Registration and Practice Standards Rules.  Direct updates of the Commission System by registered NDIS providers of their contact and other details are approved forms of notice.

(2)   A single change affecting a registered NDIS provider may require the provider to give notice to the Commissioner under both sections 13 and 13A of the NDIS Provider Registration and Practice Standards Rules.

Example 3

Provider B decides to cease providing high intensity daily personal activities, a class of supports for which it is registered to provide, in New South Wales. Provider B will continue to provide a limited service to participants located in South Australia.

Provider B is required to give notice of the change in locations at which it provides the supports under subsection 13(1)(b) of the NDIS Provider Registration and Practice Standards Rules. Notice is required to be given as soon as practicable after the provider becomes aware that the change will occur or when the change occurs, whichever is the earlier.

The cessation of those supports by Provider B in New South Wales will adversely affect the ability of the provider’s existing participants in New South Wales to access its services.

Provider B is therefore also required to give notice under paragraph 13A(1)(b) of the NDIS Provider Registration and Practice Standards Rules as soon as practicable after the change occurs (but could give notice earlier than this where it is aware that the change will occur).

15  Commissioner’s actions in response to notice of changes or events

             (1)  The Commissioner may take certain actions under the Act as a result of the types of changes or events of which notice is given by a registered NDIS provider in accordance with sections 13 or 13A of the NDIS Provider Registration and Practice Standards Rules. This may particularly apply where the occurrence of particular changes or events affecting a provider indicates a risk to participants or where the Commissioner is prompted to consider if he or she remains satisfied that the provider and the provider’s key personnel are suitable to be, respectively, a registered NDIS provider and involved in the provision of the supports or services concerned.

             (2)  The actions that the Commission may take include, but are not limited to, the following:

(a)    Imposing, varying or revoking conditions to which the registration is subject under section 73G of the Act;

(b)   Varying the registration of an NDIS provider under section 73L of the Act or prompting the registered NDIS provider to apply for a variation of registration under section 73M of the Act;

(c)    Suspending the registration of a registered NDIS provider under section 73N of the Act;

(d)   Revoking the registration of a registered NDIS provider under section 73P of the Act;

(e)    Making a banning order against a registered NDIS provider under section 73ZN of the Act;

(f)    Other compliance and enforcement actions such as issuing a compliance notice.

             (3)  Certain changes affecting a registered NDIS provider, such as the sale of a service or of the entity that is the provider, may have the effect that the provider’s registration as a whole, or for a particular service, ceases and a new entity would need to apply to be registered to provide the supports or services before it can undertake those supports or services.

             (4)  Registered NDIS providers seeking to add supports or services to the scope of their registration need to apply for a variation of registration in accordance with section 73M of the Act. Where a provider must be registered to provide those classes of supports, the provider must not commence providing those supports or services unless and until the Commissioner decides to vary the registration of the provider to extend the supports or services for which it is registered to provide.