Failure to Ensure Informed Consent for Arbitration Agreements
Penalty
Summary
The facility failed to ensure that residents and their representatives were properly informed about the contents of binding arbitration agreements and their right to refuse such agreements. For three sampled residents, documentation and interviews revealed that either the resident or their representative signed the arbitration agreement without adequate understanding or explanation of its terms. In one case, a resident with advanced dementia and a designated healthcare surrogate signed the agreement personally, despite medical documentation indicating the resident was unable to provide meaningful information and required a surrogate for decision-making. The surrogate confirmed not being present or involved in the signing process. In another instance, an alert and oriented resident and their spouse did not recall any discussion or explanation regarding arbitration, despite the agreement being signed. Similarly, a third resident and their representative, who was the power of attorney, did not recall signing or having the arbitration agreement explained to them. Interviews with facility staff, including the Senior Nurse Navigator and the Nursing Home Administrator, confirmed that the process should involve reviewing and explaining the arbitration agreement to the resident or their representative, ensuring understanding, and informing them of their right to refuse. However, the facility did not have a specific policy regarding arbitration agreements, and the documented process was not consistently followed, as evidenced by the lack of informed consent and understanding among the sampled residents and their representatives.