Failure to Ensure Resident Capacity for Binding Arbitration Agreement
Penalty
Summary
The facility failed to ensure that residents had the capacity to understand the terms of a binding arbitration agreement, as required by its own policy. For one resident with a diagnosis of dementia and a BIMS score of 00, indicating severe cognitive impairment, the facility proceeded with obtaining verbal consent for a binding arbitration agreement. Clinical documentation, including psychological, nursing, and social service notes, consistently described the resident as having significant cognitive deficits, such as confusion, disorientation, impaired memory, and a need for supervision and assistance with decision-making. Despite these documented impairments, the admission director read the arbitration agreement to the resident and recorded a verbal consent, which was then documented as the resident's agreement. The facility's policy required that residents or their representatives be informed of the nature and implications of the agreement and that understanding be verbally acknowledged and documented. However, the evidence in the clinical record indicated that the resident lacked the cognitive capacity to provide informed consent, and there was no indication that a representative was involved in the process.