Minimum Age Cutoffs and the Fair Allocation of Benefits

Minimum Age Cutoffs and the Fair Allocation of Benefits

Govind Persad^[*]

The COVID-19 pandemic brought debates over the use of age in scarce resource allocation to the fore once again. Initially, particularly in developed countries, debates surrounded the use of older age as an exclusion or lower-priority criterion for receipt of scarce medical interventions such as ICU beds and ventilator therapy. Many advocacy groups for older adults argued that age should not be used as a criterion for access to such interventions.[1] In developed countries and in particular the United States, they were largely successful, at least with respect to formal policy, ensuring that resource allocation policies excluded or minimized the role of age-based prioritization that might work to the disadvantage of older adults. Some of these groups argued that the use of age would constitute “unlawful age discrimination.”[2]

In stark contrast, during the later allocation of vaccines and scarce therapies, age was frequently used as a minimum rather than a maximum criterion: only people over a given age (e.g. sixty-five) could receive a vaccine or scarce therapies such as antivirals, or older age became a priority criterion for access to these interventions. The same advocacy groups who previously rejected age as a criterion now often welcomed its use,[3] even as a sole basis for allocation to the exclusion of others. Concerns about age discrimination were downplayed or ignored.

The use of age as a minimum criterion for access to benefits or resources has the tendency to worsen disparities in several respects. In this discussion note, I identify four factors that tend to make minimum age cutoffs for access to benefits inequity-exacerbating rather than inequity-mitigating. I then discuss a better alternative to such minimum cutoffs.

Four ways that minimum age cutoffs for health and other benefits can worsen inequity

First, individuals and communities that face serious social prejudice or resource disadvantage tend not to live as long as others, and so are on average less likely to attain a minimum age cutoff. Such life-shortening disadvantages include poverty and structural discrimination. In the United States, Black Americans, Native Americans, and people in poverty all have shorter lifespans than the average.[4] Globally, the use of a minimum age cutoff for vaccine distribution would’ve favored the residents of wealthier nations (such as Japan or the United Kingdom) that have longer average life expectancies.

Second, in most countries, the age structures of populations differ such that populations that are ethnic minorities or more disadvantaged are also younger on average. This factor played out in the COVID-19 pandemic both domestically in the United States and internationally. Within the United States, the median age of minority Americans is thirty-one whereas the median age of White Americans is forty-four.[5] Globally, the median age in many lower and middle-income countries is under thirty, while median ages are much higher – sometimes over forty – in high-income countries.

Third, people who are disadvantaged also experience risk from illness earlier in their lives than others do. While the risk of serious complications from many illnesses, including COVID-19, increases as one moves through one’s life, people from disadvantaged communities often face greater risk earlier in their lives than others do later in their lives. This played out both domestically and internationally during the COVID-19 pandemic. Domestically, Black, Hispanic, and Native Americans faced higher risk of death from COVID-19 earlier in life.[6] Internationally, COVID-19 deaths have happened earlier in less developed nations.[7] These differences mean that one-size-fits-all cutoffs for access to vaccines (such as the age-sixty-five standard promulgated by the CDC, WHO, and others) will often prioritize older adults who are nevertheless at lower risk over younger adults who are at higher risk despite their age.

A final factor is a straightforwardly normative one. It is worse to die earlier in one’s life, and similarly more important to prevent deaths that happen early in life. The COVID-19 pandemic’s disproportionate impact on older adults has led some to argue that we should recognize deaths later in life as no less important to prevent than deaths earlier in life. This would be a mistake. While the COVID-19 pandemic may have taught us that we should regard preventing the deaths of older adults as more important in absolute terms, the relative importance of preventing deaths plainly differs depending on age at death. To see why, consider a potential alternative course the pandemic could have taken. In this alternative, rather than older adults being highly overrepresented among COVID-19 deaths, the number of deaths in each age group would be proportionate to that age group’s share of population. In this scenario, over one-million Americans would still have been lost to COVID-19, but now over 20%–00,000–would have been children under eighteen, rather than the current figure of 0.1% of COVID-19 deaths coming before eighteen. Over eight-hundred-thousand would have been under sixty-five. Similarly, the COVID-19 pandemic would still have killed 6.5 million people worldwide, but 25% of them – 1.65 million – would now be children, and over 80% of them, more than five million, would’ve been people under age sixty-five. While the COVID-19 pandemic’s absolute impact on older adults has been tragic, relieving this disparity by reallocating deaths proportionally across age groups would be a far worse outcome. When it comes to deaths, an age disparity that underrepresents the young is far preferable to a disparity-free distribution: in this respect, age is very different from other identities such as race, sex, or national origin.

We can see a similar phenomenon at the individual rather than community level. Our choices during our own lives show that we regard death earlier in life as a worse outcome than death later in life. Medical breakthroughs, like antiretrovirals for diseases like HIV, do not “save lives“: no medicine truly can. What they do is convert deaths that would’ve come disproportionately early in life, as was true of HIV deaths before the advent of antiretrovirals, into deaths that come later in life instead. While a death late in life is still important to prevent, a death earlier in life is far worse.

All these factors can intersect. For instance, sending COVID-19 vaccines to countries proportional to their over-65 population will tend to favor wealthier countries, where people are more likely to live to sixty-five and where age structures tend to skew older. In addition, it will prioritize some lower-risk people over higher-risk ones, since middle-aged adults in low-income countries may be at higher risk than some adults over sixty-five in high-income countries.

While the inequity-exacerbating potential of minimum age cutoffs is particularly visible in the context of scarce interventions such as vaccines, therapies, and ICU beds, this potential also exists for the distribution of other types of benefits, such as health insurance or eligibility for health and other services. For instance, restricting universal access to high-quality health insurance to people over 65, as the United States’ Medicare program does, will tend to exacerbate inequity, because it is easier to live to retirement age if one is more advantaged.[8]

Potential solutions

What is the right approach to minimum age cutoffs? One possibility is to adopt an ‘anticlassificationist’ approach akin to those advocated at the start of the pandemic by organizations representing older adults. On this approach, age should simply be ignored when defining access to benefits. Age cutoffs, whether they establish a minimum or maximum age, should be considered unacceptable in the same way as program eligibility criteria based on religion or nationality.

While tempting, this approach would be mistaken. A better approach would be to replace one-size-fits-all age cutoffs with cutoffs that recognize the legitimate role of age in eligibility. For instance, the use of minimum age cutoffs in health programs like Medicare responds to a genuine fact, which is that health expenses and need for healthcare does tend to rise with age. Similarly, the use of age cutoffs in vaccine allocation responds to the genuine fact that, all other factors being equal, risk of serious complications or death from COVID-19 infection does rise with age. Even though it is much worse to die at forty than at eighty (an age greater than the average US life expectancy at birth), vaccinating an eighty-year-old against COVID-19 is much more likely to prevent a death than vaccinating a forty-year-old. This difference in risk is substantial enough that it can outweigh the greater badness of death earlier in life.

But using age as the only basis for a cutoff is both inaccurate and unnecessarily exacerbates inequities, because it ignores other factors that drive poor health outcomes. Unlike older age, which is associated with past advantage, these other factors—such as poverty and chronic illness—are associated with past disadvantage. A better approach would incorporate age alongside these other factors. For instance, eligibility for health programs designed to reach older adults could be adjusted based on local life expectancy, so eligibility comes earlier in localities where people live less long and are more likely to encounter health problems earlier in life. Someone who has been dealing with poverty, chronic illness, or systemic marginalization over their entire lifespan is likely to experience the same health problems at fifty-five or sixty that more advantaged adults do at sixty-five. Access to health and other benefit programs should reflect this.

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[*] Dr. Persad is an Assistant Professor at the University of Denver Sturm College of Law, where he specializes in health law and bioethics. He has published articles on age and distributive justice in the Boston College Law Review, University of Richmond Law Review, and Journal of Medical Ethics. He holds a PhD and JD from Stanford University.

[1] Timothy W. Farrell et al., Rationing Limited Healthcare Resources in the COVID-19 Era and Beyond: Ethical Considerations Regarding Older Adults, 68 J. Am. Geriatrics Soc’y 1143 (2020).

[2] Kathleen Liddell et al., Allocating Medical Resources in the Time of COVID-19, 382 New Eng. J. Med. e79 (2020), https://www.nejm.org/doi/10.1056/NEJMc2009666 [https://perma.cc/5ZDJ-Q8TE].

[3] See Ben Delikat et. al., Written Public Comment to Community Vaccine Advisory Committee (CVAC), UC Berkeley School of Public Health (2021), at 3 https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/WrittenCommentsCVAC2.1.21.pdf [https://perma.cc/A59A-K5XA]; Jack Perry, AARP criticizes RI COVID vaccination effort, demands focus on older residents, Providence J. (Jan. 22, 2021, 2:05 PM), https://www.providencejournal.com/story/news/healthcare/2021/01/22/aarp-slams-ri-covid-vaccination-plan-demands-focus-older-residents/6668508002/.

[4] S. Jay Olshansky et al., Differences in life expectancy due to race and educational differences are widening, and many may not catch up, 31 Health Affs., 1803 (2012); Raj Chetty et al., The association between income and life expectancy in the United States, 2001-2014, 315 JAMA, 1750 (2016).

[5] Katherine Schaeffer, The most common age among whites in U.S. Is 58 – more than double that of racial and ethnic minorities, Pew Rsch. Ctr. (July 30, 2019), https://www.pewresearch.org/fact-tank/2019/07/30/most-common-age-among-us-racial-ethnic-groups/ [https://perma.cc/4RSX-9N4J].

[6] Mary T. Bassett et al., Variation in racial/ethnic disparities in COVID-19 mortality by age in the United States: A cross-sectional study, 18 PLoS Med., e1003541 (2021), https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1003402 [https://perma.cc/3VZ5-TY3X]; Jonathan M. Wortham et al., Characteristics of Persons Who Died with COVID-19 – United States, February 12 – May 18, 69 Morbidity and Mortality Wkly. Rep. 923 (2020).

[7] Gabriel Demombynes et al., Too young to die: Age and death from COVID-19 around the globe, World Bank Blogs (Oct. 26, 2021), https://blogs.worldbank.org/developmenttalk/too-young-die-age-and-death-covid-19-around-globe [https://perma.cc/5NEQ-3T5T].

[8] Govind Persad, Reforming Age Cutoffs, 56 U. Rich. L. Rev. 1007, 1018-9 (2022).