Kidney allocation and the limits of the Age Discrimination Act.

• Author: Eidelson, Benjamin

Thousands of people die waiting for a kidney transplant every year in the United States. (1) Less well known, however, is that many people who do receive kidneys from deceased donors gain only a few years of life, because they were relatively old and in poor health to begin with. (2) Meanwhile, younger people who receive kidneys from older decedents often outlive their new organs, eventually returning to the waiting list for a second transplant. (3)

After years of planning and consultation, the Organ Procurement and Transplantation Network (OPTN), the government-chartered body responsible for allocating cadaveric organs in the United States, has proposed a new regime to address these misalignments and make better use of the scarce supply of kidneys. (4) The crux of the proposal, which was released for public comment in September 2012, is straightforward. Rather than simply giving kidneys to the patients who have been waiting the longest, the new system will allocate the highest-quality kidneys to the people for whom a transplant promises the most years of additional life. (5) The OPTN's Kidney Transplantation Committee estimates that this new system of "longevity matching" will wring an extra 8,380 years of life out of the nation's supply of cadaveric kidneys each year. (6)

Critics have charged the plan with age discrimination, since it will deliberately allocate high-quality kidneys to younger candidates at the expense of older candidates with equal or greater medical need. (7) These allegations raise significant legal and moral questions, and the debate they have sparked offers a revealing vantage point on the ways discrimination is conceptualized within and outside the law.

As a constitutional matter, age discrimination is insulated from judicial scrutiny by the Supreme Court's longstanding conclusion that the aged do not constitute a "suspect class." (8) Federally funded programs, however, are expressly forbidden from engaging in age discrimination by the Age Discrimination Act (ADA) of 1975. (9) Although this statute "has seldom been cited or litigated," (10) there is little question that the organ transplantation network is subject to its requirements. Indeed, federal officials warned that an earlier version of the OPTN proposal, which would have directly matched candidates with organs of comparable age, could violate the ADA. (11) The OPTN responded by scrapping the draft plan, acknowledging that it "may be perceived as age discrimination." (12) While the new proposal does away with direct pairing of donors and recipients by age, it continues to take account of age in calculating a patient's "estimated post transplant survival" score, which in turn determines her access to high-quality kidney. (13) Some have called for Congress to intervene and exempt the new plan from the ADA altogether if necessary to ensure its legality. (14)

In Part I of this Comment, I consider whether this new scheme violates the ADA. This analysis traverses largely uncharted terrain, interpreting a statute that "has been virtually forgotten since its enactmento." (15) My conclusions are correspondingly tentative. What is clear, however, is the narrow conception of wrongful discrimination that animates the law. In essence, the ADA asks how closely a proposed age-based means fits a program's ends, deeming age classifications impermissibly discriminatory if the fit is too loose.

In Part II, I explore a symbolic dimension to discrimination claims that the ADA therefore fails to squarely confront. As recent scholarship has recognized, to claim that a practice is wrongfully discriminatory is often not to allege that it is instrumentally irrational, but to assert that its public meaning denigrates the equal worth of some persons. Disputes over discriminatory rationing are thus not only about forswearing arbitrary inferences, as the ADA imagines, or about equitable distribution, as many bioethicists seem to suppose, but are also a site of contestation over how to publicly respect people as equals. Considering the new OPTN proposal from this perspective, I argue, sheds valuable light on the concerns it has provoked.

Finally, I suggest that the interplay between legal and moral conceptions of discrimination in this unfolding debate may exemplify a phenomenon of broader significance. In codifying our normative commitments, legal categories also shape the terms on which we understand and debate them. The legal regime governing claims of age discrimination therefore threatens to cut short an important conversation about what forms of age-based differential treatment are acceptable, not only as instrumentally rational, but as consistent with our commitment to affirming the equal worth of persons.

1. IS THE PROPOSED SYSTEM CONSISTENT WITH THE AGE DISCRIMINATION ACT?

   1. The Statutory Scheme

      The Age Discrimination Act of 1975 provides that "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." (16) This sweeping prohibition applies to the hundreds of transplant centers that comprise the OPTN. (17) The ADA is subject to three broad exceptions, however, which "crystallize the dearth of advantage provided by this law." (18)

      First, the statute expressly disfavors disparate impact claims, providing that classifications on the basis of "reasonable factors other than age" cannot constitute age discrimination. (19) Second, certain age-based distinctions are permitted if the program at issue is "established under authority of any law" that draws the distinctions itself. (20) And third, federally funded programs may distinguish on the basis of age if "such action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of such program or activity." (21)

      Since the proposed longevity-matching scheme would differentiate among transplant candidates in part on the basis of age itself, rather than merely on the basis of some other correlated trait, the exception for use of "reasonable factors other than age" is inapposite here. The exception for age distinctions established by "any law" comes closer, but it has been construed to cover only age distinctions drawn by statutes, (22) and the statute authorizing the organ transplantation network does not draw any such distinctions. (23) Consequently, the legality of the longevity-matching proposal turns on the question posed by the third exception: whether the proposal "takes into account age as a factor necessary" either to the "normal operation" of the organ transplantation program or to "the achievement of any [of its] statutory objective[s] ."

   2. Does Longevity Matching Fall Within the Exception?

      Although courts have almost never interpreted and applied this provision of the ADA, (24) the statutory categories can be construed in light of the implementing regulations promulgated by the U.S. Department of Health and Human Services (HHS). (25) These regulations were expressly commissioned by the statute and are therefore entitled to "[g]reat deference." (26) Even with the benefit of the regulations, however, the import of the ADA's exception for distinctions necessary to a program's "normal operation" or "statutory objective[s]" remains somewhat opaque.

      Specifically, according to the regulations, an otherwise prohibited action is permitted if age is used as a reasonable "measure or approximation" of some other characteristic that is "impractical to measure directly on an individual basis" but nonetheless necessary to approximate "in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity." (27) "Normal operation," the regulations explain, "means the operation of a program or activity without significant changes that would impair its ability to meet its objectives." (28) A "statutory objective," by contrast, is any purpose that is "expressly stated" in a statute. (29)

      The applicability of the exception to the longevity-matching scheme can thus be analyzed in two stages. The first concerns the degree of fit between the age classification and some given end--here, estimating post-transplant longevity. Second, assuming a sufficiently close fit between ends and means, age-based differentiation is permitted if it is necessary to achieve an explicit statutory objective or if foregoing it would represent a significant change to the program that frustrates its objectives.

      As for the first stage, it is apparently true that various medical risks that bear on future life expectancy "can be reasonably measured or approximated by the use of age," and it may indeed be impractical to assess these risks without taking account of age. An HHS representative thus advised the OPTN policy committee that the use of age in estimating post-transplant survival "was not of concern because the evidence has shown that age is a suitable proxy for variables such as cardiovascular disease which are not available in the OPTN dataset." (30)

      Supposing that is true--and that the OPTN dataset could not readily be expanded to incorporate such variables (31)--the question remains whether estimating post-transplant survival is necessary to the program's normal operation or to achieving its statutory objectives. The fit between longevity matching and the statutory objectives of the program is unclear, however. The National Organ Transplant Act directs the OPTN to "assist organ procurement organizations in the nationwide distribution of organs equitably among transplant patients," (32) and mandates that the component organizations must "have a system to allocate donated organs equitably among transplant patients according to established medical criteria." (33) These broad instructions to allocate organs "equitably" do not say...