There’s a saying among lawyers that “hard cases make bad laws.” The point is simple: a difficult situation often poses a questionable basis for enacting more general legislation.
The desire to achieve something good through a statute or government regulation can also bring unanticipated consequences going far beyond what began as a practical approach to fix a legitimate problem.
It will be years before we learn all of the economic and other dislocations the coronavirus pandemic caused, but one emerging, related issue involves a “right to repair” movement that is gathering steam. While seemingly well-intended, “right to repair” will undermine our nation’s ability to innovate and compete. It will also harm thousands of disabled Americans.
At least half of the states are considering legislation to make it easier for individuals to repair broken devices like smartphones, computers, appliances, farm machinery, respirators and motorized wheelchairs. These devices often use sophisticated, embedded technologies that were developed as a result of significant intellectual-property investments.
When some motorized wheelchairs, for example, broke during the coronavirus pandemic, it was difficult for individuals to make these repairs themselves (DIY) or get repairs through authorized service providers without experiencing lengthy delays or other hassles.
As a result, there’s now a consumer movement around the country, championed by the Ralph-Nader-established Public Interest Research Groups, to enact “right to repair” legislation enabling individuals to conduct such repairs themselves or to use service providers other than those expressly authorized by the original equipment manufacturers.
At least 39 “right to repair” bills have been introduced. Democratic Colorado Gov. Jared Polis recently signed the only legislation in the country that specifically targets highly-specialized, complex power-assisted wheelchairs.
Even the Biden White House has entered the fray: on July 9, 2021, under the guise of promoting competition throughout the American economy, the president signed an executive order encouraging the Federal Trade Commission “to limit powerful equipment manufacturers from restricting people’s ability to use independent repair shops or do DIY repairs.” Any such restrictions would be deemed deceptive trade practices.
Sounds like a good, sensible idea that empowers individuals and consumers, right?
Not so fast.
This effort is not the type of guild-dismantling, deregulatory movement that brought us cost-effective paralegals and dental hygienists. The impact of “right to repair” legislation in some sectors of our economy would significantly retard innovation and productivity while also posing potentially serious harm to consumers.
In 2012, Massachusetts enacted the first such “right to repair” legislation aimed at automotive repairs. Do-it-yourself car repairs, however, are a far cry from the repairs required for technologically sophisticated medical devices like MRI machines, CT scanners, or complex, power-assisted wheelchairs.
Power-assisted wheelchairs, for example, are classified as Durable Medical Equipment and are provided by suppliers of Complex Rehabilitation Technology. These devices require a physician’s prescription and are regulated as Class 2 medical devices by the Food and Drug Administration.
These wheelchairs require customized fittings: mistakes can adversely impact a patient’s skin-pressure comfort level as well as a patient’s respiratory, digestive, and circulatory systems. Repairs are typically handled by a certified assistive technical professional for good reasons.
Under the guise of promoting greater free-market competition, “right to repair” legislation such as Colorado’s requires that manufactures disclose to owners and independent repair firms details concerning parts, tools, repair manuals, digital-software keys, patented software, and other proprietary information essential to conducting diagnostic, maintenance, and repair operations.
This mandate undermines intellectual-property protection and also reduces incentives for innovation. There are also substantial risks to wheelchair users.
The FDA regulates the standards for these wheelchairs, and there are precise Medicare and Medicaid rules that govern purchases and repair reimbursements. DIY fixes and risky tinkering may also mean the loss of federal reimbursements, loss of warranties, and loss of insurance coverage from both government and private insurance providers. Negligent repairs might undermine future legal recourse not to mention create serious physical harm to wheelchair users.
“Right to repair” advocates describe their effort as a movement based on respect for fundamental property rights. But it’s also possible that there’s a hidden agenda at work: a backdoor effort to attack Big Tech using the bogus rationale of consumer protection.
A far better approach to the delays and other repair issues experienced by power-wheelchair users is to improve outdated billing practices, reduce bureaucracy, reform public and private insurance, and increase reimbursement rates.
Fixing the existing regulatory system makes far better sense than enacting legislation that will stifle innovation and potentially endanger power-wheelchair users.
Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990-1992 in the George H.W. Bush White House.