Failure to Include Mutual Arbitrator and Venue Provisions in Arbitration Agreements
Summary
The deficiency involves the facility’s failure to ensure that its binding arbitration agreements contained required stipulations for the mutual selection of a neutral arbitrator and a mutually convenient venue, as outlined in its own Binding Arbitration Agreements policy dated 11/2023. The policy stated that arbitration agreements must provide for the selection of a neutral, impartial arbitrator agreed upon by both parties, and that the venue must be convenient to and agreed upon by both parties, with consideration of the resident’s ability to get to the venue. Record review showed that the facility’s standard arbitration agreement form did not include language about mutual selection of an arbitrator, and instead specified that if the parties could not agree on a venue, the arbitration would occur at the facility. For one resident, an arbitration agreement dated 04/02/25 was signed by the resident’s representative on 04/15/25 and lacked any stipulation regarding mutual selection of an arbitrator, while stating that if no venue was agreed upon, arbitration would take place at the facility. For another resident, an arbitration agreement dated 07/28/25, which the resident’s representative refused to sign, also lacked language on mutual arbitrator selection and contained the same default venue-at-the-facility clause. A third resident’s arbitration agreement, dated and signed on 01/07/26, similarly omitted any provision for mutual selection of an arbitrator and included the same venue default. During an interview on 02/12/26 at 12:34 p.m., the SSD, after reviewing the binding arbitration agreement, stated they did not read anything about the process of choosing an arbitrator and explained that while the venue would be selected mutually, if the parties could not agree, arbitration would occur at the facility.
Penalty
Resources
Below are regulatory guidelines relevant to this citation:
Arbitration Agreement Missing Convenient Venue Requirement: The facility's arbitration agreement did not include a venue selection that was convenient to both parties, as required by CMS SOM Appendix PP and the federal regulation reviewed by surveyors. The deficiency applied to all residents who had signed an arbitration agreement, and the Administrator acknowledged that the agreement was missing this regulatory requirement.
The facility failed to ensure a neutral and fair arbitration process because its arbitration agreement did not show that both the resident and/or resident representative and the facility agreed on the arbitrator or the venue. Review of the agreement found no evidence that the venue would be convenient to both parties, and the NHA confirmed the language did not provide for mutual selection of a neutral arbitrator or venue.
A review of signed arbitration agreements for three residents found no documented evidence that the agreements allowed selection of a neutral arbitrator agreed upon by both parties or a venue convenient to both parties. The agreements stated arbitration would take place in Vvv County, NY, and staff interviews showed the DON and admissions leadership were unaware of the required language and believed the documents related to Medicaid/Medicare coverage rather than arbitration terms.
Arbitration agreement language required use of a named lawyers association and allowed the facility to select an alternate arbitration service if that group could not serve, while venue was also selected by the facility. Three residents who signed the agreement said they did not remember it being explained, did not know what arbitration was, or did not know if they had signed a contract. The ADON/Admissions staff and Administrator stated they were unsure what would happen if a resident declined the listed arbitrator or found the venue inconvenient.
Arbitration agreements for two residents pre-selected JAMS, or if unavailable NAF, as the arbitration service, rather than providing a neutral and fair process with an agreed-upon arbitrator and venue. The SSD signed the facility representative section of both agreements and stated they had not received training on arbitration agreements and were unaware of the regulations governing them.
Arbitration Agreements Lacked Venue Selection Language: The facility failed to ensure arbitration agreements for three residents included a venue selection convenient to both parties. Record review showed the residents had significant medical conditions, and the DCM confirmed the agreements did not contain the required venue information. The ADMIN stated the form did not provide for venue selection and the facility had no P&P for arbitration agreements.
Arbitration Agreement Missing Convenient Venue Requirement
Penalty
Summary
The facility failed to ensure its arbitration agreement included the selection of a venue that is convenient to both parties, as required by CMS SOM Appendix PP and the federal regulation reviewed by surveyors. The deficiency applied to all residents in the facility who had signed an arbitration agreement. During the survey review, the Administrator stated on 6/24/26 at 4:15 PM that the arbitration agreement was missing the regulatory requirement for a convenient location of arbitration for both parties.
Arbitration Agreement Lacked Neutral Arbitrator and Venue Provisions
Penalty
Summary
The facility failed to ensure a neutral and fair arbitration process by not ensuring that both the resident and/or resident representative and the facility agreed on the selection of an arbitrator and venue. Review of the facility's arbitration agreement showed that it lacked evidence addressing whether the selected venue would be convenient to both the resident and/or resident representative and the facility. During an interview, the Nursing Home Administrator confirmed that the arbitration agreement language did not provide for selection of a neutral arbitrator agreed upon by both parties and did not provide for selection of a venue convenient to both parties.
Binding Arbitration Agreement Lacked Neutral Arbitrator and Convenient Venue Provisions
Penalty
Summary
The facility did not ensure that the Binding Arbitration Agreement provided for the selection of a neutral arbitrator agreed upon by both parties and a venue that is convenient to both parties. This deficiency was identified for three residents out of 28 sampled residents: Residents #17, #57, and #117. The signed Binding Arbitration Agreements for these residents were reviewed and documented that the arbitration would take place in Vvv County, New York, but there was no documented evidence that the agreements addressed selection of a neutral arbitrator or a venue convenient to both parties. There was no facility policy related to Binding Arbitration Agreement. During interview, the Director of Admissions stated they believed the resident or representative signing the agreement was acknowledging understanding related to Medicaid, Medicare, or Medicaid HMO benefit coverage, and they were unaware that residents and representatives were supposed to be given an opportunity to select a neutral arbitrator or a convenient venue. The Administrator stated they assumed the facility did not offer an arbitration agreement and had no idea what required language should be included in the agreement or why it was in the admission packet.
Arbitration Agreement Lacked Neutral Arbitrator Choice and Convenient Venue
Penalty
Summary
The facility failed to ensure that the arbitration agreement signed by 3 of 3 residents reviewed provided for the selection of a neutral arbitrator agreed upon by both parties and a venue convenient to both parties when a dispute arose. Review of the facility’s arbitration agreement showed that disputes would be administered by a named lawyers association under its rules, and if that association was unable or unwilling to serve, the facility would select an alternative neutral arbitration service within 30 days. The agreement also stated that arbitration would be conducted at a site selected by the facility, either at the facility or somewhere within a reasonable distance of the facility that was convenient for both the facility and the resident. Resident #111 had an admission date of 4/29/26 and signed the arbitration agreement on 5/1/26; during an interview on 5/5/26, she verified her signature but said she did not remember signing the contract or anyone discussing the arbitration agreement with her, and she asked whether it was for discharge from the facility. Resident #115, admitted on 4/30/26, also signed the agreement on 5/1/26 and stated on 5/5/26 that he did not remember anyone discussing arbitration with him, did not know what it was, and did not remember signing the contract. Resident #107, admitted on 4/29/26, signed the agreement on 5/1/26 and stated on 5/6/26 that she did not know if she signed a contract, did not know what an arbitration agreement was, and said no one had explained it to her. The Admissions Director stated that she and her assistant handled contract signing and explained that the arbitration agreement was optional, but she did not know what would happen if a resident declined the listed arbitration company or if the proposed location was not convenient. The Administrator stated the agreement was specific to using the listed lawyers association as the arbitrator, that she was not sure what would happen if the resident did not agree to that choice, and that the agreement offered the resident no choice.
Arbitration Agreements Pre-Determined the Arbitrator
Penalty
Summary
The facility failed to ensure that binding arbitration agreements did not pre-determine the arbitrator for arbitration proceedings for 2 of 2 sampled residents whose arbitration agreements were reviewed. The arbitration documents for both residents stated that the parties intended Judicial Arbitration and Mediation Services, Inc. (JAMS), or its successor, to serve as the Arbitration Service, and if JAMS was unable or unwilling to serve, the National Arbitration Forum (NAF), or its successor, would serve as the Arbitration Service. Both documents showed the resident's name printed in the resident representative section of the admission agreement signature page, and the SSD signed in the facility representative area. On interview, the SSD stated on 04/22/26 at 8:37 a.m. that they had not received training in arbitration agreements and oversaw them because they were part of the admission paperwork reviewed with new residents. The SSD stated they were unaware of the particulars of the regulations that covered the arbitration agreements. The DON identified that 65 residents resided in the facility.
Arbitration Agreements Lacked Venue Selection Language
Penalty
Summary
The facility failed to ensure that arbitration agreements provided a selection of a venue convenient to both the facility and the resident for three sampled residents. During interview and record review, Resident 27’s admission record and H&P showed admission with diagnoses including chronic respiratory failure, deletion of chromosome 1p36, and Tetralogy of Fallot; Resident 47’s H&P showed admission with diagnoses including chronic lung disease, recurrent pneumonias, and gross developmental delay; and Resident 51’s admission record and H&P showed admission with diagnoses including chronic respiratory failure, cerebral palsy, and spastic quadriplegia. During a concurrent interview and record review with the Director of Case Management, the arbitration agreements for Residents 27, 47, and 51 were reviewed and each was found not to include information regarding the selection of a venue convenient to both parties. The Director of Case Management confirmed that the binding arbitration agreements for all three residents did not have this information and stated there should have been. During a later interview, the Administrator stated the arbitration agreement form did not provide for the selection of a venue convenient to both parties and that the facility did not have a policy and procedure for arbitration agreements.
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