Age Discrimination in Federally-Funded Health Programs

Age discrimination (ageism) in healthcare is a growing concern. Ageism is discrimination based on a person's age. One study estimated that the annual health cost of ageism in the U.S. totals $63 billion. That includes over and undertreatment of common medical conditions. When healthcare providers have fears about aging and death, those fears can affect interactions with older adults.

Federal law prohibits age-based discrimination in programs or activities receiving federal funding. This applies to federally-funded healthcare programs. The Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (DHHS) enforces federal nondiscrimination laws with respect to health care and human service providers receiving funds from DHHS. One such law is the Age Discrimination Act of 1975, a landmark civil rights law.

This article discusses the Age Discrimination Act of 1975 and the Patient Protection and Affordable Care Act of 2010. It also provides examples of what is and isn't age-based healthcare discrimination. The article also addresses how to file a complaint or private lawsuit.

What is the Age Discrimination Act?

The Age Discrimination Act of 1975 is a national law barring discrimination based on age in programs or activities receiving federal financial assistance. The Age Discrimination Act applies to people of all ages. It doesn't cover employment discrimination. Instead, the Age Discrimination in Employment Act (ADEA) applies to employment practices and programs, both in the private and public sectors, including local governments. The ADEA applies only to people over age 40.

The Age Discrimination Act and DHHS age regulation (found at 45 CFR Part 91) apply to each DHHS recipient. The Age Discrimination Act contains exceptions that permit, under limited circumstances, the use of age distinctions or factors other than age that may have a disproportionate effect on the basis of age.

What is the Patient Protection and Affordable Care Act?

The Patient Protection and Affordable Care Act of 2010 is another non-discrimination law that applies in the healthcare setting. The law bars discrimination on the basis of:

• Race
• Color
• National origin
• Sex
• Age
• Disability

The law applies to health programs or activities receiving federal financial assistance. An example of receiving federal funding is a hospital that accepts Medicare or Medicaid benefits.

How does ageism in health care affect older adults?

When age discrimination is at play, health care suffers. Communication between doctors and older patients might be poor. Doctors might be less engaged, more impatient, and less responsive to issues raised by older patients. Additionally, doctors or other healthcare providers may wrongfully assume cognitive impairments on the part of older patients. As a result, details of an injury, illness, or medical procedure might not be explained thoroughly.

As mentioned previously, many conditions in elderly patients are undiagnosed or overtreated. Undertreating older patients for things like depression can lead to worsening mental health problems. On the other hand, overtreatment of a condition can lead to unnecessary surgery or intensive care.

What are examples of age discrimination in health care?

Age discrimination can appear in many ways in healthcare programs funded by the federal government. Below are some examples:

• A public hospital has a separate geriatrics wing. Patients in this wing receive lower-quality meals and less nursing support than patients in other wings.
• A 71-year-old patient is found to be ineligible for a kidney transplant based on their life expectancy.
• A doctor dismisses a treatable condition as a feature of old age.

In all of the examples above, the distinctions in treatment are based solely on age. Therefore, they are discriminatory.

What doesn't constitute age discrimination in health care?

There are times when age might seem like it's being inappropriately considered. However, a program can use age as a factor if the following four criteria are met:

• Age is being used as a measure for another characteristic
• The characteristic being measured by age is essential for the program to meet its goal
• The characteristic can be measured using age
• It's impractical to measure the characteristic without using age

How do you file a complaint with the OCR?

Age discrimination complaints involving DHHS recipients and beneficiaries can be filed with the Office for Civil Rights (OCR), a federal agency. Complaints can be filed by a person, class, or third party. Complaints must be filed within 180 days from the date of the alleged discriminatory act. The OCR may extend the 180 days if good cause is shown.

You can file online or by mail. If you mail a complaint, include the following information in your written complaint:

• Your contact information, including your name, address, and telephone number. You must sign your name. If you file a complaint on someone's behalf, include your name, address, telephone number, and statement of your relationship to that person.
• Make sure to include the name and address of the institution or agency you believe discriminated against you.
• List how, why, and when you believe you were discriminated against.
• Send any other relevant information you think might be important.

Send the complaint to your OCR regional office or to the Washington, D.C. headquarters.

What happens after you file an Age Discrimination Act complaint?

Upon receipt, the OCR screens all complaints. The OCR then refers complaints describing actions covered by the Age Discrimination Act and containing the necessary information to the Federal Mediation and Conciliation Service (FMCS).

Complainants and recipients are required to participate in the effort to reach a mutually satisfactory mediated settlement of the complaint. Unless extended, the FMCS mediation process will last no more than 60 days from when a complaint is filed with the OCR.

The OCR will take no further action on a complaint that has been successfully mediated. However, the OCR will investigate complaints unresolved by the FMCS through mediation, or when cases are reopened because a mediation agreement is violated.

Private Lawsuits

A complainant may file a civil lawsuit 180 days from the date the complaint was filed with the OCR when either:

• DHHS has taken no action
• DHHS decides in favor of the recipient

No private lawsuit is allowed if there is a pending action involving the same allegations and the same recipient. The complainant has the option either to file this civil action or to have the Office for Civil Rights (OCR) continue to pursue a complaint through administrative processes. Regardless of the chosen option, the OCR retains the right to continue its enforcement activities even if a private court suit is filed.

If it's determined that your complaint is outside the OCR's jurisdiction, the OCR may give directives to forward the complaint to an appropriate agency to help you better.

Talk to an Attorney About Your Discrimination Claim

Age discrimination can occur in medical settings such as federally-funded health programs. This is especially troublesome because elderly individuals are generally more vulnerable and at greater risk for certain diseases. Like discrimination on the basis of race, gender identity, marital status, or sexual orientation, age discrimination is prohibited. 

Take action if you suspect you've been discriminated against due to your age. Talk to an attorney who deals with discrimination issues about filing a claim with the Office of Civil Rights or taking other action.