May 2014

Should Age Be a Basis for Rationing Health Care? Commentary 1

Haavi Morreim, JD, PhD
Virtual Mentor. 2014;16(5):339-344. doi: 10.1001/virtualmentor.2014.16.5.ecas2-1405.

Case

Dr. Rossi, an orthopedic surgeon, was recently selected to be a voting member of one of the FutuRx Health Maintenance Organization’s (HMO) committees, which is solely responsible for determining covered and excluded services for the various FutuRx HMO plans.

The focus of one of the committee meetings was exclusionary criteria for coverage of replacement arthroplasty. During this meeting, a committee member proposed an absolute cutoff age of 90 for the surgery, according to the rationale that, given the median lifespan of the US adult population, a 90-year old person would not live long enough after the surgery to justify the expense. Proponents of the proposal argued that the cost savings from this exclusion could be shifted towards lower premiums and more comprehensive coverage for others. This particular proposal resulted in a lively discussion among the committee members. There were many valid points raised for and against this proposal, but all Dr. Rossi could think of was his patient, Mr. Turner.

Mr. Turner is 91 years old and a former Olympic marathon runner. He has been seeing Dr. Rossi for his severe right-knee osteoarthritis but is otherwise in excellent health. Even though Mr. Turner continues to enjoy an active life, over the past 6-9 months, the knee pain has limited his ability to do what he loves most, run. Mr. Turner ran his last full marathon 1 year ago and, even with his severe osteoarthritis and advanced age, was able to complete it in less than 4 hours and 45 minutes. Since then, due to his knee pain, Mr. Turner has had to decrease the frequency and the intensity of his runs and more recently has been unable to run at all. Dr. Rossi remembers his multiple conversations with Mr. Turner about how much running means to him and how much enjoyment he gains from this particular activity. Dr. Rossi was considering a knee replacement for Mr. Turner and, even though proposed changes will not affect Mr. Turner directly (he is not part of FutuRx HMO) Dr. Rossi feels uneasy voting for a change that would restrict patients like Mr. Turner from getting a procedure that, in some circumstances, has a high potential for increasing quality of life. On the other hand, Dr. Rossi appreciates the value of limited health care dollars, the larger impact of such cost-saving approaches, and the biological limit on the years of benefit patients like Mr. Turner would gain from undergoing joint replacement.

Commentary 1

Fair warning: as the daughter of a healthy, active 99-year-old father, and as a baby boomer who decided long ago that surely middle age does not begin until at least age 60, I bring a certain bias to the conversation. Still, I am younger than Mick Jagger and always will be. That being said, I believe Dr. Rossi’s question can be addressed along several dimensions.

Thoughtful commentators have proposed that yes, age does matter when it comes to allocating scarce resources in health care. Bioethicist Daniel Callahan, for instance, proposes that there is such a thing as a natural life span, a full life, and that it may not always be wise to keep “elderly people with chronic diseases expensively alive” [1]. He noted that, as baby boomers retired, Medicare outlays were expected to grow from 3.5 percent of the gross domestic product to 5.8 percent by 2038 [2]. Hence, we must take seriously the idea of age-based limits on medical care. The proposal will be explored along several dimensions: economic, ethical, empirical, and legal.

First, the economics and ethics of scarcity. “Fiscal scarcity” (the general reality that finances are limited, and that we simply cannot afford to provide every health care intervention of conceivable benefit) often seems less pressing than “commodity scarcity” (the absolute shortage of some item, usually a physical object such as organs for transplant or available ICU beds) [3]. With commodity scarcity there is the consolation that, if one patient does not receive the available item, some other patient will. With fiscal scarcity it is tempting to ignore the budget for someone who needs something extra: it’s just money, after all, and surely this person’s health is more important.

The failure to implement reasonably clear limits on health care spending is a recipe for relentlessly rising expenditures—a familiar phenomenon in US health care. Arguably it has also contributed to our hesitancy to extend health insurance to millions of uninsured people. If spending for the insured is out of control, how can we add so many more people to the pool?

An HMO like FutuRx has obligations to all its members, whose financial contributions comprise the resource pool from which individual needs are then served. That pool must be managed so that the members as a whole can receive the spectrum of benefits they legitimately expect, without permitting excessive demands of a few to deplete unduly what is left for the many. This “contributive justice” [4] becomes increasingly important in the wake of the Affordable Care Act, which hopes to extend health care coverage to millions of uninsured people, many of whom have chronic conditions that previously rendered coverage unavailable or unaffordable.

Cost-conscious resource policies, however, must be medically as well as ethically justified. We turn to empirical factors, because good ethics begins with good facts. Age is at best a crude predictor of medical utility, because people in any age group differ markedly. Life expectancy varies by gender and by racial group, for instance [5], as well as by underlying health condition.

The Social Security Administration’s calculator for life expectancy says Mr. Turner as a 90-year-old man can expect to live another 3.8 years [6]. However, this figure is likely conservative, as it takes no account of the fact that he has no other known health issues, such as heart disease, diabetes, or hypertension—common conditions among his age peers. Thirty-five years ago, at age 65, his life expectancy would have been in the mid-80s [7]. Turner put that number in the rear-view mirror long ago, as one of the healthier members of his cohort. He could live another 15 years.

Thus, it makes less medical sense to focus on age as such than to inquire which factors actually influence longevity of total knee arthroplasty. Preoperative physical function appears to be significantly associated with postoperative outcome, along with such factors as higher education level, higher socioeconomic status, and lower comorbidity [8, 9]. Although the average age of subjects in these studies was distinctly less than 90, age was not identified as a significant component.

Consider also the consequences of failing to intervene. For a healthy, active patient like Mr. Turner, joint replacement could not just lead to a better quality of life, but could potentially avoid costly medical problems such as loss of strength and bone density from markedly reduced activity, leading to problems like fractures with prolonged hospitalization.

Close attention to such medical details lies the heart of the guidelines on which health care increasingly relies to produce evidence-based care and outcomes and to use resources as efficiently and effectively as possible [10]. It is difficult to argue that, medically, economically, or ethically, it is wise to ignore science and rely instead on crude placeholders such as age.

The implications stretch further. Life expectancy tables are a function of gender and race as well as age. If FutuRx decides to set an age threshold for joint replacement, it must logically vary that threshold for race and gender as well as age. Black males, Hispanic women, and white males and females could thus have different cutoffs of eligibility for that as well as other medical investments.

This unsavory specter brings us to legal issues. The Age Discrimination Act of 1975 (the “Age Act”) provides that, with certain exceptions, “no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance” [11]. The statute is enforced by the Office of Civil Rights, and it carries detailed regulations for implementation [12, 13]. The Affordable Care Act reemphasizes the illegitimacy of age-based discrimination [14].

Age Act regulations expressly apply to organizations that provide health care [15], stating that, barring certain exceptions, such organizations cannot use age distinctions to deny someone the benefits of any program, service, or activity receiving federal financial assistance. Medicare would seem to be such a federal financial assistance program, and an HMO with Medicare patients would seem to qualify as such an organization.

The regulations provide examples, including one that directly illustrates FutuRx’s potential legal trouble. Suppose a local health department refuses to train anyone over 65 to perform CPR, on the assumption that older people lack the strength to perform it [16, 17]. This age-based rule would fail because, although physical ability may be a proper criterion for eligibility to learn CPR, age does not capture physical ability very well. Moreover, physical ability can be measured directly. Age thus could not stand as a proper surrogate for physical ability, and so the age cutoff would violate federal law.

By implication, if FutuRx forbids anyone over 90 to receive total knee arthroscopy, on the assumption that age can suitably stand as a surrogate for likely duration of joint survival, FutuRx would have to show the government that a prognosis for joint survival cannot be directly measured and that age is a legitimate surrogate. FutuRx will likely fail. As discussed above, we already know direct prognostic measures such as preoperative activity level, educational level, and the like. We don’t need age as a surrogate marker.

Hence, FutuRx’s proposed policy would likely be unlawful. It would probably also be politically inept. During the 1990s, HMOs enacted a wide variety of cost-containment measures, often crudely drawn and implemented. Many of them turned out to be medically and even economically unwise (e.g., gatekeeper arrangements forbidding patients to see a specialist without a prior visit to the primary physician), and the whole situation led not only to widespread system gaming, but also to a huge political backlash and a rollback even of many legitimate cost-containment mechanisms.

FutuRx would be well-advised to reject an age cutoff for joint replacement.

References

  1. Callahan D. On dying after your time. NY Times. November 30, 2013. http://www.nytimes.com/2013/12/01/opinion/sunday/on-dying-after-your-time.html?_r=0. Accessed March 26, 2014.
  2. Callahan D. Setting Limits: Medical Goals in an Aging Society.

  3. Morreim EH. Fiscal scarcity and the inevitability of bedside budget balancing. Arch Intern Med. 1989;149(5):1012-1015.
  4. Morreim EH. Moral justice and legal justice in managed care: the ascent of contributive justice. J Law Med Ethics. 1995;23(3):247-265.
  5. Arias E. United States Life Tables. 2008. National Vital Stat Rep. 2012;61(3):1-64.  http://www.cdc.gov/nchs/data/nvsr/nvsr61/nvsr61_03.pdf. Accessed March 25, 2014.

  6. Social Security Administration. Life expectancy calculator. http://www.socialsecurity.gov/oact/population/longevity.html. Accessed March 25, 2014.

  7. Social Security Administration. Calculators: life expectancy. http://www.ssa.gov/planners/lifeexpectancy.htm. Accessed March 25, 2014.

  8. Judge A, Arden NK, Cooper C, et al. Predictors of outcomes of total knee replacement surgery. Rheumatology. 2012;51(10):1804-1813.
  9. Fortin PR, Clarke AD, Joseph L, et al. Outcomes of total hip and knee replacement: preoperative functional status predicts outcomes at six months after surgery. Arthritis Rheum. 1999;42(8):1722-1728.
  10. Pronovost PJ. Enhancing physicians’ use of clinical guidelines. JAMA. 2013;310(23):2501-2502.
  11. Prohibition of Discrimination, 42 USCA sec 6102 (1975). http://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/pdf/USCODE-2010-title42-chap76-sec6102.pdf. Accessed April 1, 2014.

  12. Nondiscrimination on the basis of age, 45 CFR Part 90 (1975). http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title45/45cfr90_main_02.tpl. Accessed April 1, 2014.

  13. Nondiscrimination on the basis of age, 45 CFR Part 91 (1975). This concerns age discrimination in programs or services receiving financial assistance from the Department of Health and Human Services. http://www.hhs.gov/ocr/civilrights/resources/laws/ageregulation.html. Accessed April 1, 2014.

  14. Patient Protection and Affordable Care Act, section 1557, 42 USC 18116 (2010). http://www.gpo.gov/fdsys/pkg/PLAW-111publ148/content-detail.html. Accessed April 1, 2014.

  15. Definition of terms in the Age Discrimination Act. 45 CFR 90.4(c)(1)(ii). http://www.gpo.gov/fdsys/pkg/CFR-2005-title45-vol1/pdf/CFR-2005-title45-vol1-sec90-4.pdf. Accessed March 31, 2014.

  16. Nondiscrimination on the basis of age in programs or activities receiving federal financial assistance from HHS: examples - prohibited uses of age related to normal operation. http://www.hhs.gov/ocr/civilrights/resources/laws/ageregulation.html. Accessed March 25, 2014.

  17. 45 CFR 91.31, appendix B, states four conditions that must be satisfied, for an age-based distinction to survive legal scrutiny: “(a) the age distinction must be used as a measure of another characteristic(s); (b) the other characteristic(s) must be measured for the program to operate normally or to meet its satisfactory objective; (c) the other characteristic(s) can be reasonably measured by using age; and (d) it is impractical to measure the other characteristic(s) for each individual participant.” Nondiscrimination on the basis of age in programs or activities receiving federal financial assistance from HHS: examples--prohibited uses of age related to normal operation. http://www.hhs.gov/ocr/civilrights/resources/laws/ageregulation.html. Accessed March 25, 2014.

Citation

Virtual Mentor. 2014;16(5):339-344.

DOI

10.1001/virtualmentor.2014.16.5.ecas2-1405.

The people and events in this case are fictional. Resemblance to real events or to names of people, living or dead, is entirely coincidental. The viewpoints expressed in this article are those of the author(s) and do not necessarily reflect the views and policies of the AMA.