Failure to Ensure Neutral, Mutually Agreed Arbitration Terms in Admission Agreements
Summary
Facility staff failed to ensure that binding arbitration agreements between the facility and residents or their representatives included language that a neutral arbitrator, agreed upon by both parties, would be selected and that the arbitration venue would be convenient to both parties. The facility’s most recent admission packet contained a Resident-Facility Binding Arbitration Agreement that required disputes related to services or health care to be resolved exclusively by binding arbitration and documented that by signing, parties waived their rights to have claims decided in court. However, the agreement did not contain any language stating that the arbitrator would be neutral and mutually agreed upon, nor that the location of arbitration would be convenient to both parties. For one resident with multiple sclerosis, muscle spasms, vitamin deficiencies, contracture, anemia, and weakness, the face sheet showed he was his own responsible party and an admission MDS documented intact cognition with a BIMS score of 14. A binding arbitration agreement was electronically signed by this resident and the Admissions Director. In a face-to-face interview, the resident stated he did not recall the Admissions staff explaining that a neutral arbitrator and a neutral location, selected by both parties, would be used if arbitration occurred. Another resident with dysphagia, hemiplegia and hemiparesis following cerebral infarction, a gastrostomy, type 2 diabetes mellitus, cognitive communication issues, generalized muscle weakness, and gout had an arbitration agreement signed by an emergency contact as the resident’s representative and the Admissions Director. The admission MDS showed a BIMS score of 0, while a later quarterly MDS showed a BIMS of 15. During a telephone interview, the emergency contact stated they did not remember admission staff explaining that they could select a neutral arbitrator and a neutral, convenient location for arbitration. A third resident with a left rib fracture, protein-calorie malnutrition, atrial fibrillation, systolic congestive heart failure, generalized muscle weakness, and a cognitive communication deficit was listed as her own responsible party, with multiple emergency contacts. The arbitration agreement was electronically signed by one emergency contact as the resident’s representative and by the Admissions Director, and the admission MDS showed intact cognition with a BIMS score of 15. In a face-to-face interview, this resident stated facility staff did not explain that both parties could choose a neutral arbitrator and a neutral location for arbitration. A fourth resident with hemiplegia affecting the right dominant side, a displaced fracture of the right clavicle, hematuria, generalized muscle weakness, adjustment disorder with mixed disturbance of emotions and conduct, and a cognitive communication deficit had a power of attorney as representative. The arbitration agreement was electronically signed by the representative and the Admissions Director, and the admission MDS showed a BIMS score of 14. In a telephone interview, the representative stated they did not recall anyone from Admissions explaining that a neutral arbitrator and neutral location would be selected by both parties. Interviews with residents, representatives, and emergency contacts who had signed arbitration agreements showed no evidence that staff explained these rights, and the Admissions Director acknowledged that the agreement lacked language regarding selection of the arbitrator and location for arbitration.
Penalty
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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 Lacked Neutral Arbitrator Provision: A resident with multiple chronic conditions, including dementia, COPD, dysphagia, and HTN, had an arbitration agreement that did not explicitly state that a neutral arbitrator would be selected by both parties. During survey review, the resident could explain the purpose of the agreement but could not explain why it was resigned, and the AD confirmed the original agreement did not meet the required terms.
A facility arbitration agreement stated that any litigation would be heard exclusively in one county in Florida and no other location. Sampled residents were unable to explain the arbitration process in detail, and the Social Services Director, DON, and NHA all confirmed the venue language limited disputes to that single location.
The facility did not ensure that two residents had arbitration agreements specifying a mutually convenient venue for hearings. Instead, their agreements required arbitration to be held in the county where the facility is located before three arbitrators from the American Arbitration Association, without reference to mutual agreement or convenience. During review, the Admission Coordinator acknowledged that these residents should have been asked to sign the updated version of the agreement that includes a mutually agreed upon, convenient venue.
Surveyors found that the facility’s binding arbitration agreements did not include required provisions for mutual selection of a neutral arbitrator or for a mutually convenient venue, despite the facility’s policy stating these elements must be present. For multiple residents, the arbitration forms either signed or presented for signature lacked any language about both parties choosing an arbitrator together and instead specified that, if no venue was agreed upon, arbitration would default to being held at the facility. During interview, the SSD confirmed they did not see any description of an arbitrator selection process in the agreement and understood the venue to default to the facility if mutual agreement could not be reached.
The facility used an admission packet arbitration provision for all 22 residents that did not inform residents or their representatives of their right to participate in selecting a neutral arbitrator or a mutually convenient venue. Administrative staff reported that the arbitration provision in the admission packet was the only written information provided and that they verbally explained it at admission, but they were not aware of the specific language required to be included. The arbitration language had been created under a previous company and may have been altered by the current board and administrator, yet it still lacked the required provisions, resulting in a deficiency related to the arbitration process.
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.
Arbitration Agreement Lacked Neutral Arbitrator Provision
Penalty
Summary
The facility Arbitration Agreement failed to explicitly state that the agreement provided for the selection of a neutral arbitrator agreed upon by both parties for one resident reviewed for arbitration agreements. Resident #73 was admitted with multiple diagnoses including atherosclerotic heart disease, polyneuropathy, insomnia, contracture of the left elbow, lack of coordination, muscle weakness, dementia, abnormal posture, COPD, dysphagia, hypertension, cognitive communication deficit, alcohol abuse, gastro-esophageal reflux, and chronic hepatitis. The most recent MDS showed a BIMS score of 15, indicating the resident was cognitively intact at the time of the assessment. During the survey, the resident explained the purpose of the facility arbitration agreement but was not willing to review the signed agreement from admission or the later agreement signed again by the resident. The resident could not explain why the arbitration agreement was resigned. Review of the original agreement signed on admission showed that it did not provide for the selection of a neutral arbitrator agreed upon by both parties. The AD confirmed that the agreement did not meet the requirements and stated that the resident was asked to sign a new arbitration agreement after this issue was identified during the survey process.
Arbitration Agreement Limited Venue to One County
Penalty
Summary
The facility failed to have an arbitration agreement that provided the selection of a venue convenient for both parties when there is a dispute. Review of the arbitration agreement showed that any litigation arising under or related to the agreement would have venue exclusively in [NAME] County, Florida and no other location. The deficiency was identified through record review and interviews with facility staff and residents. Residents #35, #47, and #42 were sampled from the facility’s list of newly admitted residents who signed the arbitration agreement. During interviews, Resident #35 said she was familiar with arbitration but could not explain the facility’s arbitration process. Resident #47 said arbitration involved using a mutual party to resolve issues at the facility, but he could not explain further details. Resident #42 said she had no knowledge of the facility arbitration process and was unable to explain what arbitration is. The Social Services Director said she explains the arbitration process to residents upon admission before they sign it and confirmed the agreement limited venue to [NAME] County, Florida. The DON was unable to show where the agreement stated residents had a right to a neutral venue and also confirmed the venue language. The NHA likewise confirmed the agreement stated venue was only in [NAME] County, Florida and no other location.
Failure to Use Arbitration Agreements With Mutually Convenient Venue
Penalty
Summary
The facility failed to ensure that its Arbitration Agreement provided for a venue that was convenient to both parties, as required for a neutral and fair arbitration process. Record review showed that one resident admitted on an unspecified date signed an Arbitration Agreement on 8/26/25, and another resident admitted on an unspecified date had a representative sign an Arbitration Agreement on 9/19/25. Both agreements stated that any arbitration hearing would be held in the county where the facility is located before a board of three arbitrators selected from the American Arbitration Association (AAA), without reference to mutual agreement or convenience of venue. During an interview on 2/19/26, the Admission Coordinator reviewed these agreements and produced the facility’s updated Arbitration Agreement, which specified that hearings would be held in a mutually agreed upon venue convenient to both parties before three arbitrators selected from the AAA. The Admission Coordinator stated that the two residents should have been asked to sign the new Arbitration Agreement when the facility updated it. This deficiency was identified for 2 of 3 residents whose arbitration agreements were reviewed, indicating that the facility did not obtain updated agreements reflecting the mutually convenient venue requirement for those residents.
Failure to Include Mutual Arbitrator and Venue Provisions in Arbitration Agreements
Penalty
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.
Deficient Arbitration Agreement Lacking Neutral Arbitrator and Venue Provisions
Penalty
Summary
The facility failed to ensure its arbitration agreement provided for the selection of a neutral arbitrator agreed upon by both parties and for the selection of a venue convenient to both parties. At the time of survey, the facility had a census of 22 residents, all of whom had signed the arbitration agreement, and there were no residents in active arbitration. Record review of the admission packet, specifically Exhibit E Arbitration Provision, showed it did not notify residents or their representatives of their right to participate in selecting a neutral arbitrator or a mutually convenient venue. During interviews, an administrative staff member stated that the Arbitration Provision in the admission packet was the only information provided about the agreement and that she verbally explained it to new admissions when they signed it. Another administrative nurse reported that the previous company that operated the facility had written the Arbitration Provision and that the current board and administrator might have modified it, and she was not aware of the specific language required in the provision. A further administrative staff member stated the facility followed whatever was written in the admission agreement regarding arbitration and acknowledged not being aware of the required elements for the Arbitration Provision. These combined actions and inactions—using an admission arbitration form that lacked required language about neutral arbitrator and venue selection, having all residents sign this form, and administrative staff’s lack of awareness of the required arbitration language—led to the identified deficiency.
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