Non-compliance in Binding Arbitration Agreement
Summary
The facility failed to ensure that the Binding Arbitration Agreement provided for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties. This deficiency was identified during a recertification survey conducted from February 18, 2025, to February 25, 2025, affecting three residents out of a sample of 38. The facility's policy on arbitration agreements, effective from October 17, 2024, required that the agreement specifically provide for these selections. However, the agreements signed by the residents did not document evidence of such provisions. Instead, the agreements stipulated that all arbitrations would take place in New York County, New York, unless otherwise agreed, and that a panel of three arbitrators would be appointed, with each party selecting one arbitrator and those two selecting a third. Interviews with the Director of Admissions and the Administrator revealed further issues. The Director of Admissions explained that they were responsible for explaining the arbitration agreement to residents and their representatives, but acknowledged that the agreement defaulted to New York County if a venue could not be mutually agreed upon. Additionally, the Director could not explain how the arbitrator selected by the facility would remain neutral. The Administrator admitted that the current Binding Arbitration Agreement was non-compliant and stated that revisions were underway to address these issues, although the facility continued to use the existing agreement in the meantime.
Penalty
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Arbitration agreement language required use of a named lawyers association and allowed the facility to select an alternate arbitration service if that group could not serve, while venue was also selected by the facility. Three residents who signed the agreement said they did not remember it being explained, did not know what arbitration was, or did not know if they had signed a contract. The ADON/Admissions staff and Administrator stated they were unsure what would happen if a resident declined the listed arbitrator or found the venue inconvenient.
Arbitration agreements for two residents pre-selected JAMS, or if unavailable NAF, as the arbitration service, rather than providing a neutral and fair process with an agreed-upon arbitrator and venue. The SSD signed the facility representative section of both agreements and stated they had not received training on arbitration agreements and were unaware of the regulations governing them.
Arbitration Agreements Lacked Venue Selection Language: The facility failed to ensure arbitration agreements for three residents included a venue selection convenient to both parties. Record review showed the residents had significant medical conditions, and the DCM confirmed the agreements did not contain the required venue information. The ADMIN stated the form did not provide for venue selection and the facility had no P&P for arbitration agreements.
Arbitration Agreement Lacked Neutral Arbitrator Provision: A resident with multiple chronic conditions, including dementia, COPD, dysphagia, and HTN, had an arbitration agreement that did not explicitly state that a neutral arbitrator would be selected by both parties. During survey review, the resident could explain the purpose of the agreement but could not explain why it was resigned, and the AD confirmed the original agreement did not meet the required terms.
Two residents’ arbitration agreements did not include provisions for a neutral arbitrator agreed upon by both parties or a venue convenient to both the residents and the facility. The AA confirmed the missing language, and the DA stated she was not aware these items needed to be included in the agreements.
Two residents signed binding arbitration agreements that did not clearly identify a venue convenient to both parties. An RN stated she obtained signatures and reviewed the form with residents, but the agreements themselves did not list any venue, despite the facility policy requiring a convenient venue selection.
Arbitration Agreement Lacked Neutral Arbitrator Choice and Convenient Venue
Penalty
Summary
The facility failed to ensure that the arbitration agreement signed by 3 of 3 residents reviewed provided for the selection of a neutral arbitrator agreed upon by both parties and a venue convenient to both parties when a dispute arose. Review of the facility’s arbitration agreement showed that disputes would be administered by a named lawyers association under its rules, and if that association was unable or unwilling to serve, the facility would select an alternative neutral arbitration service within 30 days. The agreement also stated that arbitration would be conducted at a site selected by the facility, either at the facility or somewhere within a reasonable distance of the facility that was convenient for both the facility and the resident. Resident #111 had an admission date of 4/29/26 and signed the arbitration agreement on 5/1/26; during an interview on 5/5/26, she verified her signature but said she did not remember signing the contract or anyone discussing the arbitration agreement with her, and she asked whether it was for discharge from the facility. Resident #115, admitted on 4/30/26, also signed the agreement on 5/1/26 and stated on 5/5/26 that he did not remember anyone discussing arbitration with him, did not know what it was, and did not remember signing the contract. Resident #107, admitted on 4/29/26, signed the agreement on 5/1/26 and stated on 5/6/26 that she did not know if she signed a contract, did not know what an arbitration agreement was, and said no one had explained it to her. The Admissions Director stated that she and her assistant handled contract signing and explained that the arbitration agreement was optional, but she did not know what would happen if a resident declined the listed arbitration company or if the proposed location was not convenient. The Administrator stated the agreement was specific to using the listed lawyers association as the arbitrator, that she was not sure what would happen if the resident did not agree to that choice, and that the agreement offered the resident no choice.
Arbitration Agreements Pre-Determined the Arbitrator
Penalty
Summary
The facility failed to ensure that binding arbitration agreements did not pre-determine the arbitrator for arbitration proceedings for 2 of 2 sampled residents whose arbitration agreements were reviewed. The arbitration documents for both residents stated that the parties intended Judicial Arbitration and Mediation Services, Inc. (JAMS), or its successor, to serve as the Arbitration Service, and if JAMS was unable or unwilling to serve, the National Arbitration Forum (NAF), or its successor, would serve as the Arbitration Service. Both documents showed the resident's name printed in the resident representative section of the admission agreement signature page, and the SSD signed in the facility representative area. On interview, the SSD stated on 04/22/26 at 8:37 a.m. that they had not received training in arbitration agreements and oversaw them because they were part of the admission paperwork reviewed with new residents. The SSD stated they were unaware of the particulars of the regulations that covered the arbitration agreements. The DON identified that 65 residents resided in the facility.
Arbitration Agreements Lacked Venue Selection Language
Penalty
Summary
The facility failed to ensure that arbitration agreements provided a selection of a venue convenient to both the facility and the resident for three sampled residents. During interview and record review, Resident 27’s admission record and H&P showed admission with diagnoses including chronic respiratory failure, deletion of chromosome 1p36, and Tetralogy of Fallot; Resident 47’s H&P showed admission with diagnoses including chronic lung disease, recurrent pneumonias, and gross developmental delay; and Resident 51’s admission record and H&P showed admission with diagnoses including chronic respiratory failure, cerebral palsy, and spastic quadriplegia. During a concurrent interview and record review with the Director of Case Management, the arbitration agreements for Residents 27, 47, and 51 were reviewed and each was found not to include information regarding the selection of a venue convenient to both parties. The Director of Case Management confirmed that the binding arbitration agreements for all three residents did not have this information and stated there should have been. During a later interview, the Administrator stated the arbitration agreement form did not provide for the selection of a venue convenient to both parties and that the facility did not have a policy and procedure for arbitration agreements.
Arbitration Agreement Lacked Neutral Arbitrator Provision
Penalty
Summary
The facility Arbitration Agreement failed to explicitly state that the agreement provided for the selection of a neutral arbitrator agreed upon by both parties for one resident reviewed for arbitration agreements. Resident #73 was admitted with multiple diagnoses including atherosclerotic heart disease, polyneuropathy, insomnia, contracture of the left elbow, lack of coordination, muscle weakness, dementia, abnormal posture, COPD, dysphagia, hypertension, cognitive communication deficit, alcohol abuse, gastro-esophageal reflux, and chronic hepatitis. The most recent MDS showed a BIMS score of 15, indicating the resident was cognitively intact at the time of the assessment. During the survey, the resident explained the purpose of the facility arbitration agreement but was not willing to review the signed agreement from admission or the later agreement signed again by the resident. The resident could not explain why the arbitration agreement was resigned. Review of the original agreement signed on admission showed that it did not provide for the selection of a neutral arbitrator agreed upon by both parties. The AD confirmed that the agreement did not meet the requirements and stated that the resident was asked to sign a new arbitration agreement after this issue was identified during the survey process.
Arbitration Agreements Lacked Neutral Arbitrator and Convenient Venue Provisions
Penalty
Summary
Facility failed to ensure that the arbitration agreements for two residents included language providing for the use of a neutral arbitrator agreed upon by both parties and the selection of a venue convenient to both parties, as required by the facility’s policy. During review of Resident 51’s admission record, it was noted that the resident was originally admitted on [DATE]. Resident 87’s admission record showed original admission on [DATE]. During a concurrent interview and record review, the Admissions Assistant reviewed both residents’ arbitration agreements, dated 5/18/2023 and 11/26/2024, and confirmed that neither agreement included provisions for a neutral arbitrator agreed upon by both parties or for a venue convenient to both the residents and the facility. The Admissions Assistant stated he was not aware of the specific items that needed to be included and said he would need to speak with the Director of Admissions. The Director of Admissions stated she was not aware that the arbitration agreements needed to include a convenient venue and a neutral arbitrator agreed upon by both parties, and acknowledged that these provisions were important so residents would know there was no bias in the arbitration process.
Arbitration Agreements Lacked Required Venue Information
Penalty
Summary
The facility failed to ensure that its binding arbitration agreements clearly identified a venue that was convenient to both parties for 2 residents, Resident #14 and Resident #43. During an interview on 03/24/2026, RN P stated she was responsible for obtaining signatures on the arbitration form, did not know whether the arbitration process had ever been used to resolve disputes, and was not involved in corporate legal information. She stated she reviewed the form with residents, explained that the facility used a third-party mediator for legal disputes, and told them there was a section allowing cancellation or changes to the agreement. Record review showed that both residents had signed arbitration agreements, but the agreements did not identify any venue. The facility's Binding Arbitration Agreement Policy, dated 3/2024, stated that the agreement must provide for selection of a venue convenient to both parties.
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