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Civil Rights Issues? Age Discrimination? Worries About Proposed Kidney Transplant Rules March 15, 2011

Posted by Obi Jo in : health care news, health care reform, Medicare, medicine, patient care, Public Health , trackback

Proposed Change in Rules for Kidney Transplants Raises Concern – Proposal would use age as criteria to select kidney recipients

New Kidney Transplant Rules Start of Rationing? – More than 80% of people awaiting organs need a kidney

News regarding  proposed changes in the formula by which kidneys are allocated for transplant has caused a stir in the medical community. The United Network for Organ Sharing (UNOS) has proposed changing rules for allocation of kidneys, the most sought after organs for transplantation. Under the new concept, consideration would be given to the age and health of the individual, favoring younger patients over older patients.  The idea is to maximize the life of the organ donated, at least in theory. 1, 2, 3

If adopted, this plan would radically change the current protocol from one that gives priority to patients who have been on the waiting list longest. The current rules have been essentially unchanged for over 25 years. These new rules would match recipients and organs as noted based on age and health to try to maximize the number of years provided by each kidney – the most sought-after organ for transplants.4

The chairman of the committee charged with reviewing donation protocols defends the concept by arguing that UNOS is trying to get the most out of a scarce resource.  They point out that there are many more patients waiting for kidneys than donors annually. United Network for Organ Sharing (UNOS), is a private nonprofit group.  They are contracted by the federal government to coordinate organ allocation.  As such, they are the recipients of taxpayer monies from the federal government. 4, 5

UNOS on it’s website defines it’s goal, mission and procedures as follows: UNOS uses an online database system (UNet) that collects, stores, analyzes and publishes all data that pertains to the patient waiting list, organ matching, and transplants. The system was launched in October of 1999.  It contains data regarding every organ donation and transplant event occurring in the United States since 1986. UNet is described by UNOS as a fail-safe, 24/7, secure Internet-based transplant information database. UNet enables the organ transplant institutions to: register patients for transplants, match donated organs to waiting patients, and manage the time-sensitive, life-critical data of all patients, before and after their transplants. 5

The proposed change, the first major overhaul of the system in a quarter century, is an ethical minefield and is sure to raise serious moral questions.  A number of transplant surgeons, bioethicists and patient advocates are welcoming the change. Many agree that age should be a factor in determining allocation of organs. However, others worry that this is a slippery slope of moral rationalization raising all of the gravest concerns about medical rationing.  Some have raised concerns that the changes might alter the pool of available organs by changing the pattern of people making living donations. Some also complain that the new system would unfairly penalize middle-aged and elderly patients at a time when the overall population is getting older.

Also, using criteria such as age, especially for an agency funded with federal tax dollars, implicates civil rights issues, specifically age discrimination.  Additionally, others query that if age is to be considered, why not perceived societal worth?  Are not many awaiting transplant more accomplished citizens than others? Should that factor be considered as well as age?  For example, should an otherwise healthy 50 or 60 year old, who might be business leader, physician, judge, attorney or other community leader be passed over in favor of a 25 year old who might be illiterate, on welfare and have a criminal history? Using age as a criterion will more than likely bring issues of comparative worth into the discussion.  These issues, as is obvious, are fraught with complexity, moral ambiguity and ethical concerns. 4, 5, 6, 7

The Office of Civil Rights (OCR) enforces the Age Discrimination Act of 1975 (Age Act), which prohibits discrimination on the basis of age in programs and activities receiving Federal financial assistance from HHS.  Under the Age Act, recipients may not exclude, deny, or limit services to, or otherwise discriminate against, persons on the basis of age. The Age Act does not cover employment discrimination that is enforced by the EEOC. The Age Act also does not apply to certain age distinctions in Federal, State, or local statutes or ordinances.  In addition, a recipient may take an action that is otherwise prohibited if the action reasonably takes into account age as a factor that is necessary to the normal operation or achievement of a statutory objective of a program. OCR ensures that people have equal access to and an opportunity to receive services from all HHS funded programs and services. Persons who believe they (or someone else) have been discriminated against — because of race, color, national origin, age, or disability — in health care or human services may file a complaint with OCR.5, 6, 7

One must worry that the very real accomplishments of UNOS could be overshadowed and endangered by embarking on this ethically tenuous new course.  Clearly, a federally funded (tax payer funded) private entity must carefully evaluate civil rights concerns when making alterations in its allocation scheme.  Otherwise, many of the issues already discussed above will come to the fore.  It would also seem that the United States Justice Department as well as the Civil Rights Division should review a change of this magnitude.  We would assume HHS and CMS would as well since all end stage renal patients are on Medicare, regardless of age and Medicare covers all transplants. 5, 6, 7

1. Young Patients Waiting for Kidneys May Get Priority

2. Under kidney transplant proposal, younger patients would get the best organs

3. Kidney transplant proposal would give an edge to younger patients

4. Waiting for a transplant

5. United Network for Organ Sharing (UNOS)

6. Medicare Coverage of Kidney Dialysis and Kidney Transplant Services

7. Discrimination on the Basis of Age

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