Rule 115 Proximity Waiver Request Form

Background: Rule 115 Proximity Rule

Rule 115 (Title:59 Part:115, https://www.ilga.gov/Commission/jcar/admincode/JCARTitlePart.asp?Title=059&Part=0115), 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:

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:

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.

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

Rule 115 Proximity Waiver Request Form

Background

The HCBS Settings Rule is a federal regulation enacted in 2014 (Home & Community Based Services Final Regulation | Medicaid). It works to ensure that people who receive supports through Medicaid's HCBS waiver programs have full access to community living and can receive services in the most integrated setting. It encourages individuals' autonomy to make choices and to control the decisions in their lives.

11 Categories for the HCBS Settings Compliance Requirements is a list of the rights individuals have through the HCBS Settings Rule with a brief explanation of each.

The HCBS Settings Rule encourages waiver funded, provider-controlled or owned sites to be imbedded in the community to limit isolation and encourage community inclusion. Rule 115 reflects this priority by placing a limit on waiver funded provider-controlled or owned sites being next to, across from, adjacent or diagonal from another waiver funded provider-controlled or owned site. A proximity waiver is in place to allow for unique situations where a provider can demonstrate that their site(s) overcome the presumption of isolation and can achieve best practices in compliance with the HCBS Settings Rule. Please note, the proximity restrictions in Rule 115 only apply to provider-controlled or owned sites. 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.

To receive a proximity waiver, a provider should demonstrate how their new site(s) will implement best practices in HCBS Settings compliance.

Please note: DDD anticipates only considering proximity waivers for residential settings supporting 3 people in single bedrooms in each home and that are fully accessible under the Americans with Disabilities Act.

Waiver Request

Please provide the following information to DHS.HCBS@illinois.gov. Feel free to also attach additional evidence. DDD will respond within 45 days with questions and/or a determination. If the site receives a waiver and proceeds with licensing, DDD anticipates an onsite heightened scrutiny visit and validation process.

Attached are examples of best practices and compliance evidence that can be used. You are not required to use all those activities listed.

PLEASE NOTE: For the proximity waiver submission, you DO NOT need to show this evidence, you only need to indicate what kind of evidence you will be able to show during future reviews.

The documentation below is only needed for the new site(s) that want a proximity waiver. If you are requesting a waiver for a new site that will be next to a current licensed site, you only need to outline activities related to the new site(s).

For All New Site(s) Applying for a Proximity Waiver

Expectation	Please outline the activities that will occur at the site(s) to comply with the HCBS Settings Rule; Indicate specific examples of evidence/documentation the provider will track for future reviews
The setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including:
1a) Opportunities to seek employment and work in competitive integrated settings.	Not provider responsibility.
1b) Engage in Community Life.
1c) Control Personal Resources.
1d) Receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.
2a) The setting is selected by the participant from among setting options including non-disability specific settings and an option for a private unit in a residential setting.	Not provider responsibility.
2b) Setting options are based on the individual's needs, preferences.	Not provider responsibility.
3a) Ensures an individual's right of privacy.
3b) Ensures an individual's right to dignity and respect.
3c) Ensures an individual's right of freedom from coercion.
3d) Ensures an individual's right of freedom from restraint.
4a) The setting optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to daily activities.
4b) Optimizes, but does not regiment individual autonomy, and independence in making life choices, including but not limited to physical environment.
4c) Optimizes, but does not regiment individual autonomy, and independence in making life choices, including but not limited to with whom to interact.
5) Facilitates individual choice regarding services and supports, and who provides them.
6a) Individuals have the freedom and support to control their own schedules and activities.
6b) Individuals have access to food at any time.
7) Individuals are able to have visitors of their choosing at any time.
8)The Setting is physically accessible to the individual.
9. Any modification of the additional conditions, under §441.301(c)(4)(vi)(A) through (D), must be supported by a specific assessed need and justified in the person-centered service plan. The following requirements must be documented in the person-centered service plan: Identify a specific and individualized assessed need. Document the positive interventions and supports used prior to any modifications to the person-centered service plan. Document less intrusive methods of meeting the need that have been tried and did not work. Include a clear description of the condition that is directly proportionate to the specific assessed need. Include regular collection and review of data to measure the ongoing effectiveness of the modification. Include established time limits for periodic reviews to determine if the modification is still necessary or can be terminated. Include the informed consent of the individual. Include an assurance that interventions and supports will cause no harm to the individual.

Please fill out for Residential Sites

Expectation	Please outline the activities that will occur at the site(s) to comply with the HCBS Settings Rule; Indicate specific examples of evidence/documentation the provider will track for future reviews
10) The unit or dwelling is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities, and protections from eviction that tenants have under the landlord/tenant law of the State, county, city, or other designated entity. For settings in which landlord tenant laws do not apply, the State must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS participant, and that the document provides protections that address eviction processes and appeals comparable to those provided under the jurisdiction's landlord tenant law.
11a) Each individual has privacy in their sleeping or living unit.
11b) Units have entrance doors lockable by the individual, with only APPROPRIATE staff having keys to door.

Resource on HCBS Settings Best Practices and Examples of Evidence of Compliance

Below are best practice and examples of the types of evidence and systems that could be put into place to show compliance with the HCBS Settings Rule. These suggestions and examples are not required but are offered as reference as you write your proximity waiver submission.

Best Practice Ideas

Webinars from the Centers for Medicare and Medicaid Services:

• HCB Settings Compliance Post March 2023 - May 2023
• Medicaid Home and Community-Based Services Settings Regulation: Fitting the Pieces Together - February 2023
• How States Can Assist Providers in System Transformation to Achieve Settings Compliance - April 2022

Illinois Resources:

• IDHS: HCBS Settings Rule 101 (state.il.us)
• IDHS: HCBS Promising Practices & Resources (state.il.us)
• IDHS: HCBS Provider Toolkit (state.il.us)

Other state resources:

• A PROVIDER'S GUIDE TO PUTTING THE HCBS RULE INTO PRACTICE (mn.gov)

Examples of Sources of Evidence of Compliance with Settings Rule

This list is not exhaustive and only services as examples. For the proximity waiver submission, you DO NOT need to show this evidence, you only need to indicate what kind of evidence you will be able to show during future reviews. Feel free to suggest additional or alternative information to support the site's position. You are not required to submit every type of evidence listed.

Examples/calendars of a variety of individuals' schedules for either the home or the CDS that show that different activities were offered at the same time.

Expectation	Sources of Evidence of Compliance with Settings Rule (This list is not exhaustive. Feel free to provide additional or alternative information to support the site's position. You are not required to submit every type of evidence listed.)
The setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including:
1a) Opportunities to seek employment and work in competitive integrated settings.	PROVIDER DOES NOT HAVE TO COMPLETE. DDD IS RESPONSIBLE FOR THIS EXPECTATION.
1b) Engage in Community Life.	Examples of staff or individual schedules with a focus on individual's community access and participation as well as evidence that the activities occurred post-event or activity. Excerpts from person-centered plans and implementation strategies that show personal schedules, any technology used to track individualized schedules, documentation of how individuals are getting where they need to go (e.g., public transportation), etc.
1c) Control Personal Resources.	Documentation of training provided to individuals on how to manage their personal resources. Evidence of planning, money management and accounting of individuals' funds, such as bank books or bank account statement. Evidence of staff training on supporting individuals regarding control of personal resources. Individualized assessments used to determine how an individual might want to grow in financial independence.
1d) Receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.	Excerpts of individuals' person-centered plans and implementation strategies showing individuals' desire to access services in the community and corresponding evidence of actual participation in the community. Individualized schedules showing people's community activities. Evidence of trainings provided to individuals on how to access public transportation.
2a) The setting is selected by the individual from among setting options including non-disability specific settings and an option for a private unit in a residential setting.	PROVIDER DOES NOT HAVE TO COMPLETE. DDD IS RESPONSIBLE FOR THIS EXPECTATION.
2b) Setting options are based on the individual's needs, preferences.	PROVIDER DOES NOT HAVE TO COMPLETE. DDD IS RESPONSIBLE FOR THIS EXPECTATION.
3a) Ensures an individual's rights of privacy.	Photos of locks on the door and/or private bedrooms. Pages from handbooks or rights documents that are given to guardians and individuals receiving services on their right to privacy. Description of how staff are trained and monitored on their understanding of an individual's rights of privacy. Training agenda for rights trainings for either/both individuals and staff on their rights.
3b) Ensures an individual's rights of dignity and respect.	Evidence that individuals are informed of their rights of dignity and respect. Excerpts from person-centered plans and implementation strategy describing how an individual prefers to be addressed by staff. Training agenda for rights trainings for either/both individuals and staff on their rights.
3c) Ensures an individual's right of freedom from coercion.	Excerpts from person-centered plans and implementation strategies that shows variation among individuals based on their individual preferences on scheduling of service provision and activities. Evidence that visitors have been present at regular frequencies. Evidence that individuals have access to information regarding filing an anonymous complaint. This could be through postings, handouts at annual meetings, folders of materials available to people in the home or CDS, etc. Training agenda for rights trainings for either/both individuals and staff on their rights.
3d) Ensures an individual's right of freedom from restraint.	Evidence the site ensures everyone is assured the right of freedom from restraint unless the use of restraints is present in an individual's behavioral support strategy. Evidence regarding the role of the Human Rights Committee and data to evidence escalation of behavioral concerns leading to the need for the HRC. Evidence of staff training on the need for and appropriate use of restraints. Training agenda for rights trainings for either/both individuals and staff on their rights.
4a) The setting optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to daily activities.	Excerpts from person-centered plans and implementation strategies that vary among individuals based on their individual preferences on scheduling of service provision and activities. Examples/calendars of a variety of individuals' schedules for either the home or the CDS that show that different activities were offered at the same time.
4b) Optimizes, but does not regiment individual autonomy, and independence in making life choices, including but not limited to physical environment.	Examples or clearly labeled pictures of assistive technology and environmental modifications that allow individuals to access common areas of the setting and/or enter and exit the setting. Excerpts from person-centered plans and implementation strategies that support individual autonomy to enter/exit setting as they wish. Any modifications that restrict access to any parts of the house
4c) Optimizes, but does not regiment individual autonomy, and independence in making life choices, including but not limited to with whom to interact.	Evidence that visitors have been present at regular frequencies. For CDS, evidence that the setting has procedures in place to accommodate visitors during the day. Excerpts from person-centered plans/implementation strategies that support an individual's ability to independently enjoy life, with and without staff support.
5) Facilitates individual choice regarding services and supports, and who provides them.	Excerpts from person-centered plans and implementation strategies that document individual requests for services and supports. Evidence from past such requests that show how changes were made to accommodate individuals' requests. Evidence of a complaint process for individuals and utilization of that process. Evidence of the integration of individuals in interviewing staff and/or onboarding new staff.
6a) Individuals have the freedom and support to control their own schedules and activities.	Excerpts from person-centered plans and implementation strategies that address individual freedom and support to control their own schedules and activities. Examples of activities individuals have engaged in with and without staff support. Examples of varied meal choices and service scheduling among individuals within the setting.
6b) Individuals have access to food at any time.	Description of snacks available to individuals at all times. Photos of food storage areas showing absence of locks, array of snacks, etc. Evidence that staff work to accommodate individuals' preferences and schedules as it relates to eating.
7) Individuals are able to have visitors of their choosing at any time.	Evidence that individuals are informed of their right to visitors at any time. Documentation regarding visitor frequency.
8)The Setting is physically accessible to the individual.	Clearly labeled pictures evidencing that the setting is physically accessible to individuals. Examples or pictures of assistive technology and environmental modifications that allow individuals to access common areas of the setting; and/or enter and exit the setting.
9. Any modification of the additional conditions, under §441.301(c)(4)(vi)(A) through (D), must be supported by a specific assessed need and justified in the person-centered service plan. The following requirements must be documented in the person-centered service plan: Identify a specific and individualized assessed need. Document the positive interventions and supports used prior to any modifications to the person-centered service plan. Document less intrusive methods of meeting the need that have been tried and did not work. Include a clear description of the condition that is directly proportionate to the specific assessed need. Include regular collection and review of data to measure the ongoing effectiveness of the modification. Include established time limits for periodic reviews to determine if the modification is still necessary or can be terminated. Include the informed consent of the individual. Include an assurance that interventions and supports will cause no harm to the individual.	Examples of person-centered plans and implementation strategies that include requirements from 11a-11h for individuals with modifications. Evidence to support that individuals are educated on their required consent for modifications.

FOR RESIDENTIAL SITES ONLY (9-10)

Expectation	Sources of Evidence of Compliance with Settings Rule (This list is not exhaustive. Feel free to provide additional or alternative information to support the site's position.)
10) The unit or dwelling is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the State, county, city, or other designated entity. For settings in which landlord tenant laws do not apply, the State must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS participant, and that the document provides protections that address eviction processes and appeals comparable to those provided under the jurisdiction's landlord tenant law.	Preferred Implementation Evidence: Copy of a signed lease or residency agreement showing protections to address eviction processes and appeals. Evidence that provider has had training on the governing laws.
11a) Each individual has privacy in their sleeping or living unit.	Preferred Implementation Evidence: Excerpts from person-centered plans and implementation strategies that document individual education on privacy rights and/or consent to staff access in private spaces. Evidence that individuals currently sharing a bedroom but who prefer a single room are being afforded an opportunity to choose another setting or bedroom within the current setting. With permission, photos of sleeping and living units showing how privacy is maximized.
11b) Units have entrance doors lockable by the individual, with only APPROPRIATE staff having keys to door	Preferred Implementation Evidence: Clearly labeled pictures of doors with locks. Evidence that the individuals at the site have keys or have a documented modification.
11c) Individuals sharing units have a choice of roommates in that setting	Preferred Implementation Evidence: Excerpts from person-centered plans and implementation strategies that address individual choice of roommate and/or housemate choice.
11d) Individuals have the freedom to furnish and decorate their sleeping or living units within the lease or agreement	Preferred Implementation Evidence: Clearly labeled photos of living areas that are personalized to individuals.