Failure to Prevent Severely Cognitively Impaired Resident from Signing Arbitration Agreement
Penalty
Summary
The facility failed to ensure that a resident with severe cognitive impairment did not enter into a binding arbitration agreement. The clinical record review showed that the resident had a diagnosis including stroke and was assessed as severely cognitively impaired on the admission MDS. Despite this, the resident was able to make himself understood and respond to simple direct questions. On admission, the resident electronically signed a Voluntary Binding Arbitration Agreement, which included language stating that the agreement should not be submitted to a resident deemed incompetent by two physicians. Interviews with facility leadership revealed that there was not always a guardian or family member available to complete admission paperwork with the resident. The admission paperwork process allowed for electronic signing of all forms, including the arbitration agreement, regardless of the resident's capacity to make such decisions. This resulted in the resident with severe cognitive impairment signing the agreement without proper assessment of decision-making capacity or involvement of a legally authorized representative.