A bill to deregulate hearing aids shows healthcare bipartisanship isn’t dead

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In the wake of last week’s chaos, the concept of “bipartisan healthcare reform” would seem to be, at best, an unlikely possibility. Nonetheless, behind the frenetic and often contemptuous clamor to repeal the Affordable Care Act, a little noticed subcommittee hearing offered a ray of hope for just that.

Last Tuesday, the House Energy and Commerce Subcommittee on Health met to discuss ways to improve the regulation of medical technologies. Among the items was legislation that would allow hearing aids to be sold over-the-counter (OTC), sponsored by representatives Marsha Blackburn (R-Tenn.) and Joseph Kennedy (D-Mass.) — two lawmakers who couldn’t be farther apart ideologically.

{mosads}The bill is particularly interesting because, in days dominated by debates over who ought to pay for insurance — the demand side of healthcare — the Over-the-Counter Hearing Aid Act of 2017 shows Democrats and Republicans working together fruitfully to tackle important supply side barriers to medical innovation and access. And this is what matters most for healthcare affordability in the long run.


The act does a number of things, starting with the establishment of a new OTC hearing aid category to supercede the panoply of state laws that restrict the selling of hearing aids to licensed audiologists and other “hearing healthcare professionals.” These state-level laws are classic examples of government granted privileges, akin to the state-by-state occupational licensing restrictions that reduce competition through barriers to entry.

Secondly, the bill makes it so that OTC hearing aids do not require a medical evaluation to purchase. Although the FDA recently announced they would cease requiring medical evaluations for the existing class of hearing aids, Blackburn and Kennedy’s bill would be a step toward eliminating the requirement once and for all.

Why is this important? Nearly 48 million Americans suffer from some form of hearing loss, and yet hearing aids are not covered by Medicare or most private insurance plans. As a result, only around 14 pecent of the hearing impaired have the means to shell out the thousands of dollars necessary to afford a proper hearing aid. Instead, they resort to so-called “personal sound amplification products,” cheaper OTC alternatives intended for non-hearing impaired consumers.

The quality of PSAPs vary widely, and include devices that meet or surpass the capabilities of conventional hearing aids. The new OTC hearing aid category would make it possible for high-end PSAPs to brand themselves as hearing aids and reach a national market without having to placate gatekeepers within each state.

The effects go well beyond the hardware. Without having to be medically evaluated and go through a licensed audiologist, new services could emerge for self-evaluation, just as online vision tests have for direct-to-consumer eyeglasses. But as you might imagine, licensed audiologists aren’t excited to see their monopoly power disrupted.

In a series of recent op-eds, supposedly free-market conservatives have attempted to portray the OTC Hearing Aid Act as portending an increase in regulation. It perhaps doesn’t help that the Senate companion bill is sponsored by Elizabeth Warren. In every article Warren inevitably becomes a focal point for ad hominem cheap-shots, while Republican cosponsors like Senator Grassley and Representative Blackburn are quietly ignored.

For example, conservative columnist Gayle Trotter recently argued that the “the bill would … apply FDA medical device regulations to PSAPs.” This is false. The bill does not affect the regulation of PSAPs, other than to direct the FDA to clarify an existing guidance. Instead, it makes it possible for high-end PSAPs to voluntarily reclassify as hearing aids if they decide to market themselves as a solution for hearing impairment — something they would do now if it didn’t mean forgoing the ability to sell directly to consumers.

The conservative George Landrith then wrote a few days later that the bill would “[eliminate] the doctor-patient relationship in finding the right hearing aid and tailoring it to the patient’s needs.” But of course, the only relationship the bill eliminates is a mandatory, make-work one for audiologists, at the expense of patients’ pocketbooks.

In both articles, the authors perform a magnificent slight of hand by embedding the defense of special interest barriers to entry within the rhetoric of free markets and states’ rights. Meanwhile, neither engages with the arguments made by expert groups like the National Academies of Sciences or President Obama’s Council of Advisors on Science and Technology, both of which recommended the policy change on the basis that a national market in OTC hearing aids would drive down costs and spur innovation without sacrificing safety.

That would obviously be a win for the hearing impaired. Yet in today’s political climate, a bipartisan effort to improve healthcare access through deregulation is perhaps a more exciting development in itself. Let’s hope Congress can build on it.

Samuel Hammond is a welfare and poverty analyst at the Niskanen Center.

The views of contributors are their own and are not the views of The Hill.

Tags Elizabeth Warren Marsha Blackburn

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