Rule 115 Proximity Requirement and Waiver

Rule 115 (Title:59 Part:115), which governs licensing and operation of Community Integrated Living Arrangements (CILA) was updated in FY 2023, which included a change to limitations regarding the proximity of CILAs to each other and other Medicaid facilities. Prior to the update, a CILA could not be closer than 800 feet to another CILA or other Medicaid funded facility regardless of the provider in order to avoid clustering and ensure community integration. With the update of Rule 115, the proximity limit changed to focus only on provider controlled CILAs. Please note, Rule 115 does not limit individuals living in individually controlled or owned homes from deciding to live with or next to any number of other individuals also receiving waiver services.

Here is the current Rule 115 proximity language:

Rule 115:310 (f): Any new provider-owned or controlled CILA site for individuals in the DDD Medicaid HCBS Waiver must comply with the federal settings rules' requirements and shall only be eligible for funding from the Department if:

(1) Subject to the proximity waiver process in subsection (j), it is not adjacent to (next to, across, or diagonal from or immediately behind) any Medicaid HCBS waiver-funded residential or day program site or property owned or controlled by the same CILA provider;
(2) 2) It is not located in a building that is also a publicly or privately-operated facility that provides inpatient institutional treatment;
(3) 3) It is not located in a building on the grounds of, or adjacent to, a publicly or privately-operated facility that provides inpatient institutional treatment; or
(4) 4) It is not any of the settings defined in 42 CFR 441.301(c)(5).

Prior to the update of Rule 115, waivers to the proximity limit were approved by the Bureau of Accreditation, Licensure and Certification (BALC) for 1 CILA site being within 800 feet of another CILA or CDS. The updated Rule 115 established a proximity waiver request through DDD, which is below. Rule 115 states:

Rule 115:310 (i) - A proximity waiver can be requested from DDD for HCBS adult waiver funded residential sites converting to CILA sites.

j) Provider agencies can request a proximity waiver from DDD from the provisions in subsection (f)(1) for a potential provider-owned or controlled CILA site. The provider shall present to DDD its rationale for the waiver request, including evidence of efforts to comply with subsection (f)(1). The request must be submitted before the agency leases, purchases, or takes possession of the property to be used as a CILA, or in the case of any agency having possession of the property, before the property is used as a CILA site. DDD shall grant the waiver for the duration of the CILA, if it determines that the granting of the waiver would meet the criteria described in 42 CFR 441.301(c)(5)(v) and related federal CMS guidance, including, but not limited to:

(1) The Centers for Medicare & Medicaid Services Home and Community-Based Settings Regulation - Heightened Scrutiny, March 22, 2019 (available at https://www.medicaid.gov/federal-policy-guidance/downloads/smd19001.pdf);
(2) Center for Medicaid and CHIP Services, SUBJECT: Heightened Scrutiny Review of Newly Constructed Presumptively Institutional Settings, August 2, 2019 (available at https://www.medicaid.gov/federal-policy-guidance/downloads/cib080219.pdf); and
(3) CMS Technical Guidance on Settings that Isolate to Inform their Process for Identifying Prong 3 Settings (available at: https://www.medicaid.gov/medicaid/hcbs/downloads/settings-that-isolate.pdf).

Prior to Submitting a Rule 115 Proximity Waiver Request

The Proximity Waiver process and application below is specifically for CILA providers who want to open a CILA site adjacent to (next to, across, or diagonal from or immediately behind) an existing provider owned or controlled Medicaid HCBS waiver-funded residential (CILA, CLF, CGH) or day program (CDS) site run the same CILA provider.

Please review the following questions to assure that you are ready to submit a proximity waiver application. You should answer yes to all these questions before proceeding to apply for a proximity waiver.

1) I am a CILA provider who has a full CILA license and no longer have a provisional license and is able to operate more than one CILA home as a full CILA provider. This means BALC has surveyed my initial CILA site and it has been approved or licensed.
2) I have a CILA that has been validated as compliant with the HCBS Settings Rule.
3) I have a site that I am requesting a proximity waiver for to be located adjacent to (next to, across, or diagonal from or immediately behind) any Medicaid HCBS waiver-funded residential or day program site or property owned or controlled by my provider.

When a provider is ready to submit for a proximity waiver, they should review the process and fill out the application. Questions about either can go to DHS.HCBS@illinois.gov.

Rule 115 Proximity Waiver Request Process

The below request form should be completed.
Proximity Waiver submissions and any additional evidence should be submitted to DHS.HCBS@illinois.gov.
DDD staff will review the application and make a formal decision, submitting a letter to the provider requesting the waiver with the finding.
If denied, the provider cannot open the sites as presented. The provider can submit an appeal/reconsideration request to the Division Director by sending an appeal request letter that outlines why there should be a reconsideration to DHS.HCBS@illinois.gov. All Division Director decisions are final.
If approved, once the site has been supporting individuals for more than six months, DDD staff request evidence of HCBS Settings Validation and visit onsite for a heightened scrutiny visit.
If found in compliance, the site will receive a validation letter.

Click here for the Rule 115 Proximity Waiver Request Form
For more information and questions or to receive the form electronically, please email DHS.HCBS@illinois.gov.

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