New Jersey Short-Term Subacute Patients Are “Residents” of Their Long-Term Care Facilities

Throughout New Jersey, many long-term care facilities operate short-term subacute units providing rehabilitation skilled nursing services strictly to Medicare patients. Many of these facilities have separated these subacute patients from the regular population of long-term care residents and have considered them not fully “residents” of the long-term care facility, but rather only patients in the subacute unit. Facilities have created and used separate admission agreements for subacute unit patients that have explicitly set forth that the patient was not being admitted as a long-term care resident and that, upon the expiration of the need for short-term subacute care or the termination of Medicare benefits, the patient would be discharged from the subacute unit of the facility. Long-term care facilities in New Jersey now have to rethink how they categorize their subacute patients.

Earlier this year, in response to a request for interpretation of the applicable regulations, the New Jersey Department of Health declared that all short-term subacute patients in licensed long-term care facilities are considered long-term care residents under the long-term care regulations. Specifically, the Department stated that it “interprets ‘resident’ as used in N.J.A.C. 8:39 to encompass every individual who resides in the long-term care facility, including, but not limited to, individuals in the facility receiving subacute care and long-term care. All residents are entitled to the protections afforded under N.J.A.C. 8:39….”

As a result, New Jersey long-term care facilities can no longer consider their short-term subacute patients as separate from the rest of the residents in the facility. While a separate admission agreement may still be used to address short-term subacute needs of the resident, the agreement must still provide all required rights of any other long-term care resident, especially those rights related to discharge. Short-term subacute residents are entitled to thirty days’ notice prior to an involuntary discharge and can be discharged only for the specific reasons set forth in the state and federal regulations. Moreover, these residents are entitled to full discharge planning as well.

Those long-term care facilities that maintain separate short-term subacute units and/or have separate subacute admission agreements should review these practices to ensure they are in compliance with the New Jersey regulations applicable to all residents of a long-term care facility.

Buchanan’s team of long-term care attorneys is available to guide New Jersey facilities through this review.