If Medicaid says your parent does not meet nursing home level of care, the programs built on that test are closed for now, but not every kind of help is. Start with the deadline on the notice. Then look past the nursing-home test your state used to the programs that never asked for it, and to the states with a lower tier of their own.

In This Guide

Does Not Meet Nursing Home Level of Care? First, Check the Deadline

Getting this letter can knock the wind out of you, especially if you'd already arranged care around a "yes." A level-of-care finding is a decision, though, and decisions can be challenged. The single most useful thing you can do today is find two dates on the notice: the date of action and the hearing deadline.

Under federal Medicaid rules, cutting or ending services or eligibility counts as an "action." The state generally has to mail notice at least 10 days before the date of action, saying what it intends to do, why, which regulations support it, and how to ask for a hearing.

If your parent already gets Medicaid services, that advance notice is what protects them during an appeal:

  • What to do: ask for a hearing before the date of action on the notice.
  • What happens: if the agency sent the advance notice, it may not cut or end those services until the hearing decision.
  • The limits: services can stop sooner if the hearing finds the only issue is federal or state law or policy and the agency promptly tells your parent in writing. If the agency wins the hearing, it may recover the cost of services paid only because of this rule.

A level-of-care change your parent's physician prescribed, or an adverse preadmission screening decision, can come with notice as late as the date of action instead. The FAQ below covers what to do then.

The window to ask for the hearing itself is a separate clock. Under 42 CFR 431.221(d), a state must give an applicant or beneficiary a reasonable time, not to exceed 90 days from the date the notice is mailed, to request a fair hearing. The 90-day Medicaid fair hearing window is a ceiling: a state may set a shorter one, so go by your parent's notice.

If the notice came from a Medicaid health plan. When your parent's Medicaid runs through a managed care plan, the first appeal goes to the plan. Federal rules give 60 calendar days from the date on the plan's notice to file it, and a state fair hearing generally comes only after the plan upholds its decision. The state must then allow 90 to 120 days from the plan's resolution notice to request the hearing. To keep services going while you wait, ask for the hearing and for continued benefits within 10 calendar days after the plan sends that notice.

How the appeal works, step by step, is in our guide to Medicaid fair hearings, and the rules for keeping services running in the meantime are in keeping your Medicaid during an appeal.

State-only wrinkles. Each of these applies only in the state named:

Already in a Nursing Home, on a Waiver or in PACE

A finding at reassessment can feel worse than one at application, because it threatens care your parent already depends on. The protections depend on where your parent gets care.

On a home care waiver. A state running a 1915(c) waiver must reevaluate each participant at least once a year to decide whether the person still needs an institutional level of care and would otherwise be institutionalized. A finding that ends or cuts 1915(c) waiver services counts as a Medicaid action, so the federal notice and continuation rules described above generally apply to it.

In a nursing home. In Kentucky, when a reevaluation finds a resident no longer needs high-intensity or low-intensity nursing care, Medicaid keeps paying for 10 calendar days after the reevaluation is finalized, to allow an orderly discharge or transfer. Kentucky also bars discharging a resident of at least 18 consecutive months when the attending physician finds a move would cause transfer trauma and the department confirms it, except when a facility closes or loses its license or certificate. Both rules are Kentucky's own, so check your state's rules. If a nursing home is talking about discharge, see our guides on a Medicaid plan that stopped paying for the nursing home and on a resident review and discharge. Preadmission Screening and Resident Review (PASRR) is the name for the preadmission screening requirements in section 1919(e)(7) of the Social Security Act.

In PACE. The Program of All-Inclusive Care for the Elderly (PACE) gives current participants a real cushion. Under 42 CFR 460.160, PACE enrollment continues regardless of changes in health status unless the participant leaves voluntarily or is involuntarily disenrolled. If the state finds a participant no longer meets its nursing facility level-of-care requirements, the participant may be deemed to stay eligible until the next annual reevaluation, as long as the person would reasonably be expected to meet that level within the next 6 months without PACE. The state sets the criteria for that decision. PACE's deemed-eligibility protection is for people already enrolled in PACE; it isn't a way in for a new applicant. More on how the program works is in our guide to PACE.

Help When Your Parent Does Not Meet Nursing Home Level of Care

Some programs were never built on the nursing-home test, so a "no" on that test doesn't decide them. Each has its own rules, and the Medicaid and Older Americans Act options vary by state or local area.

Section 1915(i) state plan home care

The Section 1915(i) HCBS State Plan Option lets a state cover home and community-based services without finding that the person would otherwise need a hospital, nursing facility or intermediate care facility. The state has to set needs-based criteria for 1915(i) that are less strict than its institutional level-of-care criteria, and section 1915(i)(1) of the statute covers people already eligible for Medicaid under the state plan whose income doesn't exceed 150 percent of the poverty line. A finding that your parent isn't eligible for 1915(i) is itself an action you can take to a fair hearing.

The harder part is availability. The Medicaid and CHIP Payment and Access Commission (MACPAC) reports that 17 states offered a Section 1915(i) benefit as of February 2024. Arkansas has one: the Centers for Medicare & Medicaid Services (CMS) renewed it effective March 1, 2024. For how one state sets this up, see our Georgia 1915(i) guide. To find out whether your parent's state has a 1915(i) benefit and who it serves, ask your state Medicaid agency.

State-plan personal care

Personal care is help with everyday activities such as bathing, dressing, grooming, using the toilet and eating, as the National Institute on Aging describes it. Under Medicaid, personal care is an optional benefit, which means each state decides whether to offer it through its state plan.

Under the federal definition, 42 CFR 440.167, Medicaid personal care services must be:

  • authorized by a physician under a plan of treatment or, at the state's option, under a state-approved service plan;
  • provided by a qualified person who isn't a legally responsible relative; and
  • furnished in a home or, at the state's option, another location.

None of those 42 CFR 440.167 conditions asks whether your parent meets the nursing-home level of care. A state can still limit Medicaid state-plan personal care by criteria such as medical necessity.

Ask your state Medicaid agency whether its state plan covers personal care and how your parent can be assessed for it.

Medicare home health

The Medicare home health benefit runs on its own test. Medicare covers home health care when your parent is homebound, is under a plan of care set up and reviewed by a physician or allowed practitioner, and needs intermittent skilled nursing or therapy from a Medicare-certified agency. Under Medicare, your parent generally pays nothing for covered home health services. Medicare home health doesn't cover 24-hour care, home-delivered meals, or personal care when that's the only care needed.

Older Americans Act services through your Area Agency on Aging

Older Americans Act services generally serve people 60 and older, and Title III services can't be means-tested. Title III-B funds a menu that can include homemaker, chore and personal care help, case management, transportation and adult day care, and each Area Agency on Aging decides which of these to offer locally, so what's available varies by area. To find your parent's local agency, use the Eldercare Locator online or call 1-800-677-1116.

States With a Level Below Nursing Home Level of Care

A handful of states don't stop at a yes-or-no nursing-home test. They define a lower level of need that still opens something, and in Texas, state-plan attendant care uses a separate score of its own. What each opens differs sharply, so read the last column closely.

State Level or test Who it describes What it opens
Wisconsin Non-nursing home level of care Needs help with at least one daily activity, or with managing medications, meals or money A reduced Family Care benefit; an entitlement to it only for people eligible for Medicaid or needing adult protective services
Ohio Protective level of care Needs below the intermediate and skilled levels, such as supervision with one daily activity plus help with three instrumental activities of daily living Programs including the Residential State Supplement, a cash payment toward a licensed Class Two Residential Facility, which is not home care
Rhode Island "High" level of care Would benefit from home and community-based services, for example daily help with at least two of bathing, dressing, eating, toileting, walking or transferring Home and community-based options, but not Medicaid nursing-facility care except through a special-circumstance route
Oregon Service Priority Levels 14 to 18 People assessed outside the levels 1 to 13 that Oregon currently serves Oregon Project Independence-Medicaid, which ODHS lists for these levels; for people re-assessed, Extended Waiver Eligibility case by case when housing, support or abuse risks would lead to institutionalization or hospitalization within 30 days
Texas Form H2060 score for attendant care A score of at least 24 plus at least 6 hours of need a week, with listed exceptions Primary Home Care or Community Attendant Services, in-home attendant help through the state plan rather than a waiver

Wisconsin. A Wisconsin Department of Health Services functional screen can find your parent at the non-nursing home level, which applies to someone with a long-term condition who needs help with one or more daily activities or with a critical task such as managing medications, preparing meals or handling money.

At that level, your parent can enroll in a reduced-benefit version of Wisconsin Family Care, which DHS says is more limited than the nursing-home level. Its covered services, as Wisconsin DHS lists them, include care coordination with a social worker and registered nurse, home health care, personal care, skilled nursing, therapies, medical supplies, some medical equipment and transportation, and mental health and substance-use day treatment.

Getting the reduced benefit isn't guaranteed, though. Under Wisconsin's DHS 10.36, a person at the non-nursing home level is entitled to the Family Care benefit only if they're eligible for Medicaid or need adult protective services; anyone else may be put on a waiting list. Wisconsin's Family Care Partnership, PACE and IRIS programs require a nursing home or intellectual and developmental disability level of care instead.

Ohio. Ohio's protective level of care is defined in Ohio Administrative Code 5160-3-06 and sits below the intermediate and skilled levels, which are the ones that meet the standard for Medicaid payment to a nursing facility. One program open at that level is the Residential State Supplement (RSS), a cash supplement rather than home care. Among other requirements, an enrollee must be 18 or older, on Medicaid but not a waiver program, receiving Social Security, Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI), and living in or moving to a Class Two Residential Facility licensed by the state. Ohio's RSS also excludes anyone who needs more than 120 days of skilled nursing care within 12 months.

Rhode Island. Under state law, Rhode Island's "highest" level of care lets a person choose a nursing facility or home and community-based care. Under the Executive Office of Health and Human Services rule, a person at Rhode Island's "high" level has a choice of home and community-based options but is restricted from Medicaid nursing-facility care, unless special circumstances such as losing a primary caregiver or a home lead to a highest-need finding.

Oregon. The Oregon Department of Human Services ranks need on 18 Service Priority Levels, where a lower number means greater impairment, and currently serves levels 1 through 13 for nursing facility and home and community-based care. ODHS's service-priority guide lists levels 14 through 18 under Oregon Project Independence-Medicaid alone, so if your parent lands there, ask ODHS or your Area Agency on Aging about that program.

A person Oregon re-assesses at Service Priority Levels 14 to 18 may qualify for Extended Waiver Eligibility when a lack of shelter or support, a risk of losing safe housing, or a significant risk of abuse or exploitation would lead to institutionalization or hospitalization within 30 days. Approval for Oregon's Extended Waiver Eligibility lasts six months and can be renewed for six more if your parent is actively working with the case manager on a safe plan and showing progress. Members whose Oregon Health Plan coverage comes through the Modified Adjusted Gross Income (MAGI) pathway aren't eligible on that basis, but can be referred for an expedited state eligibility review that may open it.,

Texas. Texas Health and Human Services runs Primary Home Care and Community Attendant Services as in-home attendant programs outside a home care waiver. To qualify functionally for Texas Primary Home Care or Community Attendant Services, a person must score at least 24 on Form H2060 and need at least six hours of help a week, though someone needing fewer hours may still qualify under listed exceptions, such as being at high risk of institutionalization without the service. In both Texas programs, attendants help with bathing, dressing, meals, housekeeping and similar tasks, but not skilled care such as tube feedings, injections or giving medication.

Coming in 2028: A New Waiver Option, Not Yet Available

You may see news about a new kind of waiver for people below the institutional line. It isn't open yet. A 2025 federal law, Public Law 119-21, added section 1915(c)(11) to the Social Security Act, under which the federal Secretary of Health and Human Services may approve, beginning July 1, 2028, a home and community-based services waiver for people who meet a state's needs-based criteria without an institutional level-of-care finding. A state would have to meet several conditions, among them keeping its institutional criteria stricter and showing the new waiver won't materially lengthen waits for people who do meet the institutional level. The 1915(c)(11) waiver is an option for states, and because approvals can't begin until July 1, 2028, no state can offer one yet.

If Your Parent's Needs Increase, Ask for a New Evaluation

Needs change, sometimes quickly after a fall, a hospital stay or a memory decline. A "no" today doesn't have to be the last word. Under 42 CFR 441.302(c)(1), a state's 1915(c) waiver must assure an evaluation of the need for an institutional level of care when there is a reasonable indication that the person might need that care within a month or less without home and community-based services. If your parent's condition worsens, tell the waiver agency what changed and ask for a new evaluation, with the doctor's notes or hospital records that show it.

Wisconsin builds this in: under DHS 10.36(3), a person found functionally eligible for Wisconsin Family Care but not entitled to the benefit must be told by the county agency of the right to a new functional screening if their circumstances change.

Frequently Asked Questions

Can you stay in PACE if you no longer meet nursing home level of care?

Possibly, if your parent is already enrolled in PACE. The state agency makes that call in consultation with the PACE organization, based on a review of your parent's medical record and plan of care. So ask the PACE team what the record shows about whether, without PACE, your parent would reasonably be expected to meet the nursing facility level of care again within 6 months, because that is the federal test for staying on until the next annual reevaluation.

Does Medicaid always have to give 10 days' notice before cutting services?

Not always. Under 42 CFR 431.213, a state Medicaid agency may send notice as late as the date of action, instead of 10 days ahead, when your parent's physician prescribes a change in the level of medical care or when the notice involves an adverse preadmission screening (PASRR) decision. When Medicaid services are cut without the advance notice the rules required, the agency must reinstate them until the hearing decision if your parent asks for a hearing within 10 days of receiving the notice and the action didn't result from applying federal or state law or policy. The federal regulations don't settle whether a level-of-care decision by a state or contracted assessor counts as a physician-prescribed change, so ask for a hearing quickly either way.

Will Medicare pay for a nursing home if Medicaid says no?

Only for short-term skilled care. Medicare Part A covers a skilled nursing facility stay when a doctor or other provider decides your parent needs daily skilled care after a qualifying hospital stay (generally at least three inpatient days, though some plans and doctors' groups can waive that), up to 100 days per benefit period, with a $217 daily coinsurance for days 21 through 100 in 2026. Medicare doesn't pay for long-term custodial care when that's the only care needed.

Can a family member be paid to provide Medicaid personal care?

It depends on the relative and the program. The federal Medicaid state-plan definition of personal care defines "family member" as a legally responsible relative, so its bar on paying a family member reaches a legally responsible relative rather than every relative. A state can define personal care differently for a 1915(c) waiver, so if your parent is on a waiver, ask the waiver agency about its own rules for paid relatives.

Can Medicaid state-plan personal care have a waiting list?

Federal rules let a 1915(c) waiver cap enrollment and keep a waiting list, but that authority doesn't reach Medicaid state-plan personal care, which generally has to be statewide and equal in amount, duration and scope within a coverage group. That isn't a promise there will never be a wait, so ask your state Medicaid agency how soon the benefit can start.

Learn More

MedicaidNursing Home Level of Care by State: How Medicaid DecidesNursing home level of care by state: no federal tool is required, so each state picks its own. See every state's assessment, who decides and how often. MedicaidHow to Appeal a Medicaid Denial: Your Fair Hearing RightsDenied Medicaid? You can appeal, and one deadline decides whether your benefits keep flowing during the appeal. Know your fair-hearing rights and act fast. MedicaidKeeping Your Medicaid During an Appeal (Aid Paid Pending)Got a notice your Medicaid is ending? Medicaid aid paid pending keeps your benefits flowing during an appeal, if you request a hearing before the cutoff date. MedicaidIncome Too High for a Medicaid Waiver? Home Care and Assisted Living Options by StateIncome too high for a Medicaid waiver? At home or in assisted living, the nursing-home fix may not apply. See the four ways states handle it and what Mom keeps. MedicaidWhat Is PACE, the Program of All-Inclusive Care for the ElderlyPACE, the Program of All-Inclusive Care for the Elderly, wraps your Medicare and Medicaid care into one plan. Who qualifies, the real cost, and where it exists. Care TypesWhat Are Personal Care Services? A Family's Guide to Non-Medical In-Home CarePersonal care services are non-medical help with daily tasks like bathing and dressing. See what aides do, how it differs from home health, and who pays.

Chat with Brevy's care navigator about what's still open after a level-of-care denial at brevy.com.

The information on Brevy.com is for educational purposes only and is not a substitute for professional legal, financial, or medical advice. Rules vary by state and program and change frequently. Always verify with the relevant agency or a qualified professional. Brevy is not a law firm, financial advisor, or healthcare provider.

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Brevy Care Team

Expert eldercare guidance from Brevy's team of healthcare professionals and researchers.