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.