Failure to Ensure Informed Consent for Binding Arbitration Agreements
Penalty
Summary
The provider failed to ensure that residents or their representatives fully understood the binding arbitration agreement process during admission. For two of three sampled residents, documentation and interviews revealed that the process for informing and obtaining consent regarding the arbitration agreement was insufficient. One resident's wife signed the agreement but later stated she did not recall what the agreement entailed or that it involved waiving the right to legal litigation in court. She reported feeling overwhelmed during the admission process and did not remember a thorough explanation of the arbitration agreement, indicating she would not have signed had she understood its implications. The resident himself could not recall the agreement or its significance, and expressed frustration upon learning about the waiver of legal rights. Record review showed inconsistencies in the documentation of consent. For one resident, the arbitration agreement form lacked a checkmark indicating acceptance or declination, while another resident's form included a marked acceptance. The facility's social services director acknowledged that the parent company had recently revised the form to include explicit options for acceptance or declination to improve clarity. Despite these changes, interviews indicated that the explanation of the agreement may not have been sufficiently detailed or comprehensible for residents and their representatives at the time of signing. Both residents involved were assessed as cognitively intact according to their Brief Interview for Mental Status (BIMS) scores at the time of admission and subsequent assessments. The facility's process involved the social services director meeting with residents and representatives to review admission paperwork, including the arbitration agreement, and explaining that participation was optional. However, the lack of clear documentation and the residents' and representatives' lack of understanding demonstrated a failure to ensure informed consent regarding the binding arbitration agreement.