Competitive Enterprise Institute | 1899 L ST NW Floor 12, Washington, DC 20036 | Phone: 202-331-1010 | Fax: 202-331-0640
Bad ideas and special interest politics don't ever die in Washington, D.C. They get re-introduced in the next Congress.
Earlier this month, Rep. Larry Bucshon, R-Ind., resurrected a plan to make it more difficult for optometrists (doctors of optometry who provide primary eye care) to compete with ophthalmologists (medical doctors who specialize in treating eyes). The perversely named Truth in Healthcare Marketing Act of 2013 (HR 1427), authored in previous Congresses by former Rep. John Sullivan, R-Okla., as the Healthcare Truth and Transparency Act, is aimed at hampering competition between these eye-care providers.
Ophthalmologists claim the measure is needed to address consumer confusion over physician qualifications - to "make it unlawful for any health care professional to make deceptive statements or engage in any act that misleads patients... as to one's education, training, degree, licensure or clinical experience," as the American Academy of Ophthalmology puts it in a letter of support.
What? Fraud in health care marketing is rampant in this unregulated industry? Hardly. The federal government already has the power to address fraudulent marketing under Section 5 of the Federal Trade Commission Act. And every state regulates what services health care professionals may provide.
So, what is the purpose of this measure? According to the bill's "findings" section, surveys found consumers were confused about the skills and training of health care providers and would support legislation requiring clarity in advertising. But the bill fails to mention those findings are from surveys conducted by a PR firm hired by the American Medical Association - the bill's biggest proponent, whose members, ophthalmologists included, stand to benefit the most.
These measures may seem well-intended, but they waste taxpayer money and do patients more harm than good. By simply introducing the bill, medical doctors bolster their campaign to stoke skepticism about non-MD health care providers to scare patients away from using their services. If passed, the measure would result in increased compliance costs and increased confusion about what speech the government would permit in marketing health services. The bill isn't clear about what kind of language would be considered misleading. This would likely result in costly, time-wasting lawsuits and even investigations by the Federal Trade Commission-which would further discredit non-M.D. providers.
Worse, the bad idea could spread. The bill also might be employed in state fights where medical doctors combat all efforts by non-M.D. health care professionals to increase the number of procedures they may perform. For example, in recent years, optometrists have fought for and won the right in at least eight states to prescribe more drugs, administer local anesthesia, and in two states-Kentucky and Oklahoma-the right to perform minor eye surgery.
Although the bill originally stemmed from the battle between ophthalmologists and optometrists, other types of medical and osteopathic doctors stand to benefit -including osteopaths, who compete with chiropractors; psychiatrists, who compete with psychologists; and anesthesiologists, who compete with certified registered nurse anesthetists.
Special interests win, consumers lose. Because absent this sort of government-constructed barrier, the more medical practitioners service a market, the more patients benefit. Many basic medical needs do not require a specialist, and many physician's assistants or other non-medical doctors are more accessible in availability and proximity (a particularly important consideration for underserved areas, such as rural towns). And, of course, robust competition and consumer choice is more likely to produce lower prices for certain out-of-pocket services.
But Congress is pretty good at snatching a consumer loss from the jaws of a consumer win. There was a string of good luck on this issue, as previous attempts to pass this bad bill have failed and the bill's longtime sponsor, Rep. John Sullivan, lost his June 2011 Republican primary bid, despite a $15,000 campaign donation and $39,000 worth of independent expenditures on radio ads for Sullivan from the American Academy of Ophthalmology. But then Rep. Bucshon took up this bad cause, and not for nothing. Bucshon, a medical doctor and the husband of a practicing anesthesiologist, received $210,500 from health care professionals in the 2012 election cycle-more than from any other industry-according to the Center for Responsive Politics.
While fraud in marketing is something that government should tackle, this legislation is redundant and unnecessary. The true motivation of those who propose bills like the Truth in Healthcare Marketing Act is clear: to protect a special interest group. Clearly, those groups are well-funded enough that this measure is not going to go away anytime soon, and there will always be lawmakers willing to toss their principles aside to please them. It's up to consumers and those lawmakers who claim to support the free market to reject such anti-competitive legislation.