Arbitration Agreement Missing Required Communication Language
Summary
The facility failed to ensure its binding arbitration agreement included language stating that the resident or anyone else, including a resident representative, was allowed to communicate with federal, state, or local officials, including federal and state surveyors, other health department employees, and representatives of the Office of the State Long Term Care Ombudsman. This omission was identified for three of three sampled residents reviewed for the Arbitration Facility Task: Residents 33, 75, and 93. Resident 33 was admitted with diagnoses including major depressive disorder and anxiety disorder. The resident’s H&P stated the resident could make needs known but could not make medical decisions, and the MDS indicated the resident had impaired cognition but could make self-understood and understand others, with a family member participating in assessment and goal setting. Resident 33 electronically signed the arbitration agreement, but the agreement did not contain the required communication language. Resident 75 was admitted and later readmitted with diagnoses including depression and systolic heart failure. The H&P stated the resident had capacity to understand and make decisions, and the MDS indicated intact cognition. Resident 93 was admitted and later readmitted with diagnoses including acute embolism, thrombosis of deep veins in the lower extremity bilaterally, and diverticulitis of the intestine; the H&P stated the resident had capacity to understand and make decisions. Both residents also signed arbitration agreements that did not include the language allowing communication with the listed officials. During interviews, the Admissions Coordinator and Administrator stated the language was not on the facility’s arbitration agreement and agreed it should be included so residents know they can communicate with those entities. The facility’s policy on Arbitration stated the agreement may not contain language that prohibits or discourages such communications.
Penalty
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Arbitration Agreement Not Reviewed With Resident A resident with intact cognition per BIMS scores said this was the first time learning of an arbitration agreement and believed the document had been signed by a spouse/partner instead of by the resident. The resident stated she would have wanted to be involved in the discussion, while AP said the facility's standard practice is to review admission documents, including arbitration agreements, directly with residents who have a BIMS score of 13 or higher.
A review of the facility's arbitration agreement found a confidentiality clause that could discourage residents or their representatives from communicating with federal, state, or local officials and advocacy agencies about the arbitration process or its outcome. The Administrator confirmed the presence of this language, which had the potential to affect all 79 residents.
Surveyors identified that the facility did not ensure residents had the mental capacity to sign arbitration agreements and failed to explain these agreements in a way residents could understand. One resident with severe cognitive impairment signed an agreement without involvement of a power of attorney, while two cognitively intact residents either did not recall signing or misunderstood the agreement. Staff interviews revealed inconsistent explanation practices and lack of verification of resident understanding.
A resident with severe cognitive impairment was allowed to sign a binding arbitration agreement without evidence that the agreement was explained in an understandable manner or that a legally authorized representative was involved. The admissions staff was aware of the resident's cognitive status but proceeded with obtaining the resident's signature after unsuccessful attempts to contact the family or POA.
Several residents and their representatives were not given the option to refuse a binding arbitration agreement during the admission process. The facility's electronic admission system required signatures on the arbitration agreement to complete admission paperwork, with no way to decline, despite the agreement being labeled as optional. Staff confirmed that this process had been in place for several months and affected multiple residents, including those who were cognitively intact, impaired, or had a guardian.
A resident with cognitive impairment and memory deficits was allowed to sign a binding arbitration agreement, despite being unable to understand or recall the agreement or basic personal information. The agreement was also incomplete, lacking required signatures and information. Facility leadership confirmed the resident's impaired cognition at the time of signing.
Arbitration Agreement Not Reviewed Directly With Cognitively Intact Resident
Penalty
Summary
The facility failed to ensure that a binding arbitration agreement was explained to the resident in a form and manner the resident understood and failed to ensure the resident acknowledged understanding of the agreement before it was executed. This deficiency involved one resident out of 24 reviewed, with a facility census of 90. Resident #81 was admitted to the facility and had MDS 3.0 assessments showing BIMS scores of 15 of 15 at admission and later 13 of 15, indicating intact cognition at those times. During interview, Resident #81 stated this was the first time learning of an arbitration agreement and said the document appeared to have been signed by the resident's spouse/partner. The resident stated she was alert and oriented at admission and believed the facility likely provided admission paperwork to the spouse/partner, who signed the documents. The resident also stated she would have wanted to be involved in the arbitration discussion and was concerned that she was not included. Admissions Personnel #104 stated the facility's standard practice is to review admission documents, including arbitration agreements, directly with residents who have a BIMS score of 13 or higher, and said Resident #81 should have personally reviewed and signed the agreement, though they could not explain why it was handled differently at that admission.
Arbitration Agreement Discourages Communication with Authorities
Penalty
Summary
The facility failed to ensure that its arbitration agreement did not contain language that could prohibit or discourage residents or their representatives from communicating with federal, state, or local officials, as well as advocacy agencies such as the State Survey Agency and the Office of the State Long Term Care Ombudsman, regarding the arbitration process or the outcome of an arbitration settlement. Review of the facility's undated arbitration agreement revealed a confidentiality clause stating that neither the facility nor the resident could disclose any details of the legal controversy, dispute, or arbitration process without the consent of the other parties, except for minimal details required in court pleadings. The agreement emphasized confidentiality as a primary goal and stated that violating this provision would cause irreparable harm. An interview with the Administrator confirmed that this language could discourage communication with relevant authorities and advocacy agencies. This deficiency had the potential to affect all 79 residents in the facility, as indicated by the facility census.
Failure to Ensure Capacity and Understanding in Arbitration Agreements
Penalty
Summary
Surveyors found that the facility failed to ensure residents had the mental capacity to sign arbitration agreements and did not adequately explain these agreements in a manner or language the residents could understand. In one case, a resident with a BIMS score indicating severe cognitive impairment signed an arbitration agreement, despite the expectation that a power of attorney should have been involved. Interviews confirmed that the resident did not recall signing the agreement or understand its purpose. Another resident, who was cognitively intact according to their BIMS score, signed an arbitration agreement but could not recall if the agreement was explained or if they had signed it. This resident also did not understand what an arbitration agreement was. A third resident, also cognitively intact, misunderstood the arbitration process, believing it involved a judge and a court, and was unsure if they had signed such an agreement upon admission. Staff interviews revealed inconsistent practices in explaining arbitration agreements. The administrator stated that residents were told they did not have to sign if they did not understand, but typically had residents read the agreement themselves rather than providing a thorough explanation. The previous admissions director described explaining the voluntary nature of the agreement and the option to seek legal counsel, but would only involve a responsible party if the resident did not understand. The regional director confirmed that a resident with severe cognitive impairment should not have signed the agreement without the power of attorney.
Plan Of Correction
Tag: F 0847 Administrator or designee will review and explain the arbitration agreement to residents and/or sponsors of #9, #25, and #31 by 6/20/25. The administrator or designee will review the arbitration agreement log with identified residents to ensure choice and understanding by 6/20/25. RDO provided education to administrator on arbitration requirements on 6/5/25. Three new admissions will be audited weekly x4 weeks to ensure understanding and choice in regards to signing arbitration agreements. Results of audit will be provided to QAPI committee for review and recommendations.
Failure to Ensure Cognitively Impaired Resident Understood Arbitration Agreement
Penalty
Summary
The facility failed to ensure that a resident was properly informed about a binding arbitration agreement in a manner the resident could understand prior to signing. Medical record review showed that the resident was admitted with multiple diagnoses, including severe cognitive impairment as evidenced by a Brief Interview for Mental Status (BIMS) score of 03. Despite this, the resident was allowed to sign the arbitration agreement without documented evidence that the agreement was explained in an understandable way or that a legally authorized representative was involved in the process. Further review revealed that the Admissions Coordinator attempted to contact the resident's family and Power of Attorney at the time of admission but was unable to reach them. Acknowledging the resident's cognitive impairment, the Admissions Coordinator still permitted the resident to sign the arbitration agreement. The agreement itself stated that the parties understood and voluntarily entered into arbitration, but there was no indication that the resident, given their cognitive status, could comprehend the agreement at the time of signing.
Failure to Inform Residents of Right to Refuse Arbitration Agreement
Penalty
Summary
The facility failed to ensure that residents and their representatives were explicitly informed of their right to refuse to sign a binding arbitration agreement upon admission. Review of admission paperwork for three residents revealed that the arbitration agreement was presented as part of the electronic admission packet, but there was no option provided to decline the agreement. The electronic system required a signature on the arbitration agreement in order to complete the admission process, effectively removing the choice to refuse. For one resident who was cognitively intact, the admission paperwork included an arbitration agreement that was signed electronically, but the resident later stated he was not aware he had signed such an agreement and would not have done so if given the choice. Another resident, who was severely cognitively impaired, had a responsible party sign the agreement, also without an option to decline. A third resident, with a guardian, had the guardian sign the agreement under the same circumstances. In all cases, the agreement stated it was optional, but the process did not allow for refusal. Interviews with facility staff, including the Admissions Director and the Administrator, confirmed that the electronic admission system did not provide an option to decline the arbitration agreement. Staff acknowledged that the system required the agreement to be signed in order to complete the admission paperwork, and this had been the practice since at least August 2024. This affected multiple residents, as identified in the facility's records.
Failure to Ensure Resident Comprehension Before Signing Arbitration Agreement
Penalty
Summary
A resident with diagnoses including emphysema, hypertension, malnutrition, and peripheral vascular disease was admitted to the facility and assessed as having moderately impaired cognition. Medical record reviews indicated the resident was alert but exhibited confusion and both long-term and short-term memory deficits, with the ability to make only limited decisions requiring simple understanding. Despite these cognitive limitations, the resident signed a binding arbitration agreement as part of the admission process. The agreement itself was incomplete, lacking the facility representative's signature and missing the date and resident name at the top of the form. During a subsequent interview, the resident was unable to recall basic information such as the current month, year, duration of stay, or the facility's name, and could not explain or remember signing the arbitration agreement. The Regional Director of Clinical Operations confirmed that the resident had impaired cognition at the time of signing and acknowledged that residents should be capable of understanding such agreements before signing. This sequence of events demonstrates that the facility failed to ensure the resident was capable of understanding the arbitration agreement prior to obtaining their signature.
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