Failure to Properly Explain and Obtain Informed Consent for Binding Arbitration Agreements
Penalty
Summary
The facility failed to ensure that its Binding Arbitration Agreement (BAA) was explained to residents in a manner they could understand, and did not inform residents or their representatives of their right to rescind the agreement within 30 days. This was identified through record review, interviews, and policy review, and affected three residents out of a sample of 31. The facility's policy required that the terms and conditions of the BAA be explained in a way that ensures understanding, taking into account language, literacy, and cognitive status, and that a signature alone is not sufficient to demonstrate understanding. For the three residents involved, documentation showed that two had moderate cognitive impairment and one had severe cognitive impairment at the time they signed the BAA without a representative. Specifically, one resident had a BIMS score of nine, another had a BIMS score of ten, and the third had severe cognitive impairment with no BIMS score recorded. Interviews revealed that at least one resident did not recall signing the BAA or having it explained, and another was unable to verbalize or demonstrate understanding of the agreement. The Director of Admissions stated that she used BIMS scores to determine capacity, but admitted to not knowing the required rescission period and was unable to fully explain the BAA contents. The facility's BAA documentation included a section stating that the agreement had been explained in a form and manner the resident understood, but interviews and record reviews indicated this was not consistently the case. The Director of Admissions also stated that residents were sometimes asked to sign the BAA more than once, as directed by corporate policy, and that she considered residents with a BIMS of 12 or lower as incapable of understanding the agreement, yet residents with lower scores still signed without a representative. The Administrator was also unclear about the terms of the BAA, including its duration.