For the past several years I have been consulting with an attorney in the area on a case. Naturally, there are confidentiality issues, so I won’t go into great detail. Essentially, an organization that is under the oversight of the state, is appealing some deficiency citations. The claim that the attorney is making is that the state reviewer has the ability to look at a problem, and decide whether to call it “severe” or “mild”. If they are deciding to say “severe” about one organization while they say “mild” about a similar offense at another organization, this could be discrimination. There is some precedent for this argument. A case that we are using as an analogy was a case of police choosing to pull over more speeders who were African-American along a certain highway than Caucasians, despite evidence that Caucasians made up the majority of the speeders on the highway. The police decide, subjectively, who to pull over. In our case, the state decides who to cite, and how severely to cite them.
I’ve been analyzing quality data to see if the citations appear to be warranted, or if it appears that they have received more citations than the data indicate were appropriate. I used all of the other organizations monitored by the same state office to model the relationship between quality care and citations. The original analysis made it pretty clear that something weird was going on and the organization of interest did not deserve the number of citations that were given. I thought that this would lead to a court hearing, my testimony being part of the case, and then we’d be done.
Not so fast. I started this process back in early November of 2006. I presented the first of my analysis results in a couple of weeks. This was written up into a very basically worded summary for submission to the courts. (Apparently the attorney for whom I am working feels that judges don’t get statistics and need very basic terminology or they’ll get lost.) Then the waiting began. I did several updates to the analysis. And there was more waiting.
I finally drove to Scranton to testify in a hearing in August … of 2009! Of course, this ended up being anticlimactic, as the Special Master who heard the case at this level decided that he couldn’t hear the claim of discrimination, but could only consider whether there had been a violation of some type associated with each. So, I have been working on this case off and on for almost four years, and have yet to actually take the stand. This summer I did a renewed version of the analysis on data from Jan 2008 through Jan 2010, and am now doing an analysis on fines assessed with these citations. The work keeps rolling along, as the case drags slowly through the court system. At some point the case will reach the federal court level, and the expectation is that the federal court will hear the discrimination claim (thus, my testimony) and rule on it. (I suppose that it is possible that the case may make it to the Supreme Court, but I’m not thinking about that right now.) Seems like it would be about time. Hard to believe that this has drug on so long. This has certainly given me some appreciation for how long these things can take to wind through the appeals process.
The natural question, of course, is how this has affected the continual assigning of citations. Has the original discrimination subsided since the original lawsuit? This is part of the reasoning behind continually updating the analysis. Since 2006, the state office in question has been involved in defending lawsuits/appeals of citations from this organization. One would think that they would be somewhat careful to ensure that they are being perfectly fair, so that they could claim it wasn’t malicious, just an anomaly. Of course, they might feel that they should keep doing it the same way, since changing could be construed as an admission of guilt. It looks, from the statistical modeling, that not much has changed.
Hopefully, I’ll be able to update the process on this before too long, but don’t hold your breath.