Arbitration Agreement Lacks Venue Provision
Summary
The facility failed to ensure that their binding arbitration agreement included a provision for the selection of a convenient venue, which is necessary for arbitration proceedings. This omission could potentially deter residents from exercising their rights to seek arbitration due to the inconvenience and frustration it may cause. The deficiency was identified during a record review of the facility's Voluntary Arbitration Agreement, which was found to be undated and lacking the necessary provision. During an interview, the facility Administrator confirmed the absence of this provision in the arbitration agreement, although it was mentioned in the facility's Admission Guide. However, the Admission Guide did not include a signed acknowledgment from residents confirming receipt, understanding, and inclusion of this provision as part of the Voluntary Arbitration Agreement. This issue has the potential to affect 56 of the 57 facility residents who signed the binding arbitration agreement.
Penalty
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Facility staff used a binding arbitration agreement in the admission packet that required disputes about services or health care to be resolved exclusively by arbitration but did not include language that a neutral arbitrator, mutually agreed upon by both parties, would be selected or that the arbitration venue would be convenient to both parties. Several residents with conditions such as multiple sclerosis, hemiplegia after CVA, CHF, cognitive communication deficits, and other comorbidities, or their representatives, signed these agreements while having intact cognition documented on MDS assessments in some cases. In interviews, residents and their representatives consistently reported that admission staff did not explain that they could participate in selecting a neutral arbitrator and a neutral, convenient arbitration location, and the Admissions Director confirmed that such language was not included in the agreement.
The facility did not ensure that two residents had arbitration agreements specifying a mutually convenient venue for hearings. Instead, their agreements required arbitration to be held in the county where the facility is located before three arbitrators from the American Arbitration Association, without reference to mutual agreement or convenience. During review, the Admission Coordinator acknowledged that these residents should have been asked to sign the updated version of the agreement that includes a mutually agreed upon, convenient venue.
Surveyors found that the facility’s binding arbitration agreements did not include required provisions for mutual selection of a neutral arbitrator or for a mutually convenient venue, despite the facility’s policy stating these elements must be present. For multiple residents, the arbitration forms either signed or presented for signature lacked any language about both parties choosing an arbitrator together and instead specified that, if no venue was agreed upon, arbitration would default to being held at the facility. During interview, the SSD confirmed they did not see any description of an arbitrator selection process in the agreement and understood the venue to default to the facility if mutual agreement could not be reached.
The facility used an admission packet arbitration provision for all 22 residents that did not inform residents or their representatives of their right to participate in selecting a neutral arbitrator or a mutually convenient venue. Administrative staff reported that the arbitration provision in the admission packet was the only written information provided and that they verbally explained it at admission, but they were not aware of the specific language required to be included. The arbitration language had been created under a previous company and may have been altered by the current board and administrator, yet it still lacked the required provisions, resulting in a deficiency related to the arbitration process.
The facility did not ensure its binding arbitration agreement included a provision for selecting a mutually convenient venue for arbitration proceedings, as required by its own policy. Review of the arbitration agreement form showed no mention of a venue or any requirement that the venue be agreed upon and suitable to both parties. A staff member responsible for explaining arbitration to residents and families confirmed she did not provide any information about a venue and did not know where arbitration would occur. Facility leadership also confirmed that the agreement did not specify a venue or reference a mutual venue requirement.
The facility's arbitration agreement did not allow for the mutual selection of a neutral arbitrator, instead specifying that arbitration would be conducted by a predetermined entity or one chosen solely by the facility, without input from residents. This was confirmed through record review and staff interviews, with staff acknowledging the lack of resident choice and the absence of a related policy.
Failure to Ensure Neutral, Mutually Agreed Arbitration Terms in Admission Agreements
Penalty
Summary
Facility staff failed to ensure that binding arbitration agreements between the facility and residents or their representatives included language that a neutral arbitrator, agreed upon by both parties, would be selected and that the arbitration venue would be convenient to both parties. The facility’s most recent admission packet contained a Resident-Facility Binding Arbitration Agreement that required disputes related to services or health care to be resolved exclusively by binding arbitration and documented that by signing, parties waived their rights to have claims decided in court. However, the agreement did not contain any language stating that the arbitrator would be neutral and mutually agreed upon, nor that the location of arbitration would be convenient to both parties. For one resident with multiple sclerosis, muscle spasms, vitamin deficiencies, contracture, anemia, and weakness, the face sheet showed he was his own responsible party and an admission MDS documented intact cognition with a BIMS score of 14. A binding arbitration agreement was electronically signed by this resident and the Admissions Director. In a face-to-face interview, the resident stated he did not recall the Admissions staff explaining that a neutral arbitrator and a neutral location, selected by both parties, would be used if arbitration occurred. Another resident with dysphagia, hemiplegia and hemiparesis following cerebral infarction, a gastrostomy, type 2 diabetes mellitus, cognitive communication issues, generalized muscle weakness, and gout had an arbitration agreement signed by an emergency contact as the resident’s representative and the Admissions Director. The admission MDS showed a BIMS score of 0, while a later quarterly MDS showed a BIMS of 15. During a telephone interview, the emergency contact stated they did not remember admission staff explaining that they could select a neutral arbitrator and a neutral, convenient location for arbitration. A third resident with a left rib fracture, protein-calorie malnutrition, atrial fibrillation, systolic congestive heart failure, generalized muscle weakness, and a cognitive communication deficit was listed as her own responsible party, with multiple emergency contacts. The arbitration agreement was electronically signed by one emergency contact as the resident’s representative and by the Admissions Director, and the admission MDS showed intact cognition with a BIMS score of 15. In a face-to-face interview, this resident stated facility staff did not explain that both parties could choose a neutral arbitrator and a neutral location for arbitration. A fourth resident with hemiplegia affecting the right dominant side, a displaced fracture of the right clavicle, hematuria, generalized muscle weakness, adjustment disorder with mixed disturbance of emotions and conduct, and a cognitive communication deficit had a power of attorney as representative. The arbitration agreement was electronically signed by the representative and the Admissions Director, and the admission MDS showed a BIMS score of 14. In a telephone interview, the representative stated they did not recall anyone from Admissions explaining that a neutral arbitrator and neutral location would be selected by both parties. Interviews with residents, representatives, and emergency contacts who had signed arbitration agreements showed no evidence that staff explained these rights, and the Admissions Director acknowledged that the agreement lacked language regarding selection of the arbitrator and location for arbitration.
Failure to Use Arbitration Agreements With Mutually Convenient Venue
Penalty
Summary
The facility failed to ensure that its Arbitration Agreement provided for a venue that was convenient to both parties, as required for a neutral and fair arbitration process. Record review showed that one resident admitted on an unspecified date signed an Arbitration Agreement on 8/26/25, and another resident admitted on an unspecified date had a representative sign an Arbitration Agreement on 9/19/25. Both agreements stated that any arbitration hearing would be held in the county where the facility is located before a board of three arbitrators selected from the American Arbitration Association (AAA), without reference to mutual agreement or convenience of venue. During an interview on 2/19/26, the Admission Coordinator reviewed these agreements and produced the facility’s updated Arbitration Agreement, which specified that hearings would be held in a mutually agreed upon venue convenient to both parties before three arbitrators selected from the AAA. The Admission Coordinator stated that the two residents should have been asked to sign the new Arbitration Agreement when the facility updated it. This deficiency was identified for 2 of 3 residents whose arbitration agreements were reviewed, indicating that the facility did not obtain updated agreements reflecting the mutually convenient venue requirement for those residents.
Failure to Include Mutual Arbitrator and Venue Provisions in Arbitration Agreements
Penalty
Summary
The deficiency involves the facility’s failure to ensure that its binding arbitration agreements contained required stipulations for the mutual selection of a neutral arbitrator and a mutually convenient venue, as outlined in its own Binding Arbitration Agreements policy dated 11/2023. The policy stated that arbitration agreements must provide for the selection of a neutral, impartial arbitrator agreed upon by both parties, and that the venue must be convenient to and agreed upon by both parties, with consideration of the resident’s ability to get to the venue. Record review showed that the facility’s standard arbitration agreement form did not include language about mutual selection of an arbitrator, and instead specified that if the parties could not agree on a venue, the arbitration would occur at the facility. For one resident, an arbitration agreement dated 04/02/25 was signed by the resident’s representative on 04/15/25 and lacked any stipulation regarding mutual selection of an arbitrator, while stating that if no venue was agreed upon, arbitration would take place at the facility. For another resident, an arbitration agreement dated 07/28/25, which the resident’s representative refused to sign, also lacked language on mutual arbitrator selection and contained the same default venue-at-the-facility clause. A third resident’s arbitration agreement, dated and signed on 01/07/26, similarly omitted any provision for mutual selection of an arbitrator and included the same venue default. During an interview on 02/12/26 at 12:34 p.m., the SSD, after reviewing the binding arbitration agreement, stated they did not read anything about the process of choosing an arbitrator and explained that while the venue would be selected mutually, if the parties could not agree, arbitration would occur at the facility.
Deficient Arbitration Agreement Lacking Neutral Arbitrator and Venue Provisions
Penalty
Summary
The facility failed to ensure its arbitration agreement provided for the selection of a neutral arbitrator agreed upon by both parties and for the selection of a venue convenient to both parties. At the time of survey, the facility had a census of 22 residents, all of whom had signed the arbitration agreement, and there were no residents in active arbitration. Record review of the admission packet, specifically Exhibit E Arbitration Provision, showed it did not notify residents or their representatives of their right to participate in selecting a neutral arbitrator or a mutually convenient venue. During interviews, an administrative staff member stated that the Arbitration Provision in the admission packet was the only information provided about the agreement and that she verbally explained it to new admissions when they signed it. Another administrative nurse reported that the previous company that operated the facility had written the Arbitration Provision and that the current board and administrator might have modified it, and she was not aware of the specific language required in the provision. A further administrative staff member stated the facility followed whatever was written in the admission agreement regarding arbitration and acknowledged not being aware of the required elements for the Arbitration Provision. These combined actions and inactions—using an admission arbitration form that lacked required language about neutral arbitrator and venue selection, having all residents sign this form, and administrative staff’s lack of awareness of the required arbitration language—led to the identified deficiency.
Failure to Specify Mutually Convenient Venue in Arbitration Agreements
Penalty
Summary
The facility failed to ensure its binding arbitration agreement provided for the selection of a mutually convenient venue for arbitration proceedings, as required by its own policy, for three residents reviewed for arbitration (R246, R140, and R251). The facility’s written policy on Binding Arbitration Agreements stated that the agreement must provide for selection of a venue that is convenient for both parties. However, review of the actual arbitration agreement form showed there was no mention of a venue and no provision that the venue should be agreed upon and suitable to both parties. In interviews, the Concierge II, who was responsible for informing residents and families about arbitration, confirmed that the agreement did not document a venue, that she did not inform residents or families of any venue, and that she did not know where arbitration would occur. The Administrator and Assistant Administrator each confirmed that the arbitration agreement did not specify a venue or mention a mutual venue, and the Administrator stated he could not say for sure that the agreement was required to state the venue.
Arbitration Agreement Lacks Mutual Selection of Neutral Arbitrator
Penalty
Summary
The facility failed to ensure that its arbitration agreement allowed for the selection of a neutral arbitrator mutually agreed upon by both parties, as required. Record review showed that the agreement specified arbitration would be conducted by the American Health Lawyers Association (AHLA) through its Alternative Dispute Resolution (ADR) service, and if unavailable, the facility would unilaterally select another ADR entity. This process did not provide residents with a choice in the selection of the arbitrator. The agreement was signed by three residents. During interviews, the Admission Coordinator acknowledged that the agreement did not appear to give residents a choice in arbitration, and the Nursing Home Administrator (NHA) indicated unfamiliarity with the agreement and was unable to provide a relevant policy or procedure.
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