SB0101 94TH GENERAL ASSEMBLY

LRB094 04164 DRJ 36053 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB0101

Introduced 1/26/2005, by Sen. Miguel del Valle

SYNOPSIS AS INTRODUCED:

New Act

Creates the Assistive Technology Protection Act. Requires a physical evaluation of a consumer by a health care professional and a technology assessment by a qualified rehabilitation professional before an assistive device is sold or leased to the consumer. Provides that a manufacturer who sells an assistive device shall furnish the consumer with an express warranty that the assistive device will be free from any condition or defect that substantially impairs the value of the assistive device to the consumer. Provides that the consumer is entitled to a refund from the manufacturer if the manufacturer fails to repair the assistive device. Establishes procedures for receiving a refund. Prohibits the resale or lease of an assistive device returned by a consumer without full disclosure of the reasons for the return. Provides for arbitration of disputes under the Act, under rules adopted by the Attorney General. Requires the Attorney General to prepare a written statement of a consumer's rights under the Act and to make copies of the statement available to assistive device manufacturers, dealers, and lessors. Provides that a consumer's purported waiver of any of his or her rights under the Act is void. Authorizes the Attorney General to impose civil penalties for violations of the Act, and provides for damages caused by a violation of the Act.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT to create the Assistive Technology Protection Act.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Assistive Technology Protection Act.

Section 5. Definitions. In this Act:

"Assistive device" means any device, including a demonstrator, that a consumer purchases, leases, or accepts transfer of in this State that is used for a major life activity, which includes, but is not limited to, manual wheelchairs, motorized wheelchairs, motorized scooters, and other aids that enhance the mobility of an individual; hearing aids, telephone communication devices for the deaf (TTY), assistive listening devices, and other aids that enhance an individual's ability to hear; voice synthesized computer modules, optical scanners, talking software, braille printers, and any other devices that enhance a sight impaired individual's ability to communicate; and any other assistive device that enables a person with a disability to communicate, see, hear, or maneuver.

"Assistive device dealer" means a person who is in the business of selling assistive devices.

"Assistive device lessor" means a person who leases an assistive device to a consumer or who holds the lessor's rights under a written lease.

"Collateral cost" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of obtaining an alternative assistive device.

"Consumer" means any of the following:

(1) The purchaser of an assistive device, if the device was purchased from an assistive device dealer or manufacturer for purposes other than resale.

(2) A person to whom an assistive device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive device.

(3) A person who may enforce an express warranty applicable to an assistance device.

(4) A person who leases an assistive device from an assistive device lessor under a written lease.

"Demonstrator" means an assistive device used primarily for the purpose of demonstration to the public.

"Early termination cost" means any expense or obligation that an assistive device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive device to a manufacturer under this Act. "Early termination cost" includes a penalty for prepayment under a finance arrangement.

"Early termination saving" means any expense or obligation that an assistive device lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive device to a manufacturer under this Act. "Early termination saving" includes an interest charge that the assistive device lessor would have paid to finance the assistive device or, if the assistive device lessor does not finance the assistive device, the difference between the total amount for which the lease obligates the consumer during the period of the lease remaining after the early termination and the present value of that amount at the date of the early termination.

"Manufacturer" means a person who manufactures or assembles assistive devices and agents of that person, including any importer, distributor, factory branch, distributor branch, and warrantors of the manufacturer's assistive device, but does not include an assistive device dealer.

"Nonconformity" means a condition or defect that substantially impairs the use, value, or safety of an assistive device and that is covered by an express warranty applicable to the assistive device or to a component of the assistive device. "Nonconformity" does not include a condition or defect that is the result of abuse, neglect, or unauthorized modification or alternation of the assistive device by a consumer.

"Reasonable attempt to repair" means at least 3 attempts by a manufacturer, an assistive device lessor, or a manufacturer's authorized assistive device dealer, or any combination of them, to repair an assistive device.

Section 10. Physical evaluation and technology assessment.

(a) In this Section:

"Assistive technology supplier" means a service provider involved in the sale and service of commercially available assistive devices.

"Assistive technology practitioner" means a therapist or other allied health professional primarily involved in evaluating a consumer's needs and training a consumer in the use of a prescribed assistive device.

"Health care professional" means a physician licensed to practice medicine in all its branches under the Medical Practice Act of 1987, a physical therapist, an occupational therapist, or another allied health care professional who performs physical evaluations within the scope of his or her practice.

"Physical evaluation" means the determination and documentation of the physiological, functional, and environmental factors that affect the selection of an appropriate assistive device for a consumer.

"Qualified rehabilitation professional" means: (A) an individual who has obtained the designation of assistive technology supplier, assistive technology practitioner, or rehabilitation engineering technologist, if applicable, after meeting all the requirements for that designation as established by the Rehabilitation Engineering and Assistive Technology Society of North America (RESNA) or (B) an individual who (i) can provide documentation to prove completion of at least 15 contact hours of continuing education (CEC) within the 12 months immediately prior to July 1, 2006, and all other subsequent years thereafter by June 30, in the field of assistive devices, which may include, but is not limited to, courses by health care professionals, courses by health care associations, courses by a college or university, courses by manufacturers, in-service training by manufacturers, or attendance at symposiums or conferences; (ii) can provide proof of at least one year of experience, at least 10 hours a week in a 40-hour work week, in the field of rehabilitation technology; and (iii) can provide 3 recommendations from health care professionals who can attest to the individual's skills concerning assistive devices.

"Rehabilitation engineering technologist" means a person who applies engineering principles to the design, modification, and customization of assistive devices.

"Technology assessment" means the process and documentation of matching the pathology, history, and prognosis of a consumer to the appropriate assistive device.

(b) On and after July 1, 2006, an assistive device dealer or lessor must employ at least one qualified rehabilitation professional if that dealer or lessor provides any assistive device to a consumer who:

(1) is under age 21;

(2) has a primary diagnosis that results from childhood or adult onset injury or trauma;

(3) has a primary diagnosis that is progressive or degenerative in nature and necessitates an assistive device;

(4) has a primary diagnosis that is neurological or neuromuscular in nature and necessitates an assistive device;

(5) requires adaptive seating or positioning equipment;

(6) has a diagnosis that indicates a need for other assistive technology such as speech generating devices or environmental controls; or

(7) has a diagnosis that requires an assistive device ordered by a health care professional.

(c) On and after July 1, 2006, in order for an assistive device dealer or lessor to supply an assistive device to a consumer, the consumer must have undergone a physical evaluation by a health care professional, who must provide a written report of the evaluation to be included in the consumer's medical record and maintained on file by the assistive device dealer or lessor.

(d) A health care professional, except a physician licensed to practice medicine in all its branches under the Medical Practice Act of 1987, must complete 5 contact hours of continuing education (CEC) a year in the area of assistive devices.

(e) On and after July 1, 2006, every assistive device dealer or lessor making available technology assessments on prescribed assistive devices must have on staff a qualified rehabilitation professional.

(f) On and after July 1, 2006, a qualified rehabilitation professional must perform a complete, face-to-face technology assessment with respect to a consumer, based on the physical evaluation required in subsection (c), and document, in writing, recommendations for an assistive device that is appropriate to meet the consumer's needs.

(g) On and after July 1, 2009, a 180-day grace period shall be provided to an assistive device dealer or lessor that provides technology assessments on prescribed assistive devices if the qualified rehabilitation professional on the dealer's or lessor's staff ceases to be employed by the dealer or lessor and the dealer or lessor has no other qualified rehabilitation professional on staff. During the grace period, the standards regarding qualified rehabilitation professionals contained in subsections (e) and (f) apply.

(h) On and after July 1, 2009, a qualified rehabilitation professional must be RESNA-certified with the designation of assistive technology supplier, assistive technology practitioner, or rehabilitation engineer technologist, if applicable, or have an assistive technology degree from an accredited college or university or any other designation approved by the Home Medical Equipment and Services Board. This subsection does not apply, however, to an individual who is a licensed physical therapist or occupational therapist and who performs physical evaluations within the scope of his or her practice.

(i) Final fitting of an assistive device for a consumer must be completed with a qualified rehabilitation professional or health care professional present.

(j) On and after July 1, 2006, every assistive device dealer or lessor making available prescribed assistive devices must have a physical location with a working telephone and must maintain at least $1,000,000 in liability insurance coverage.

(k) On or after July 1, 2009, every assistive device dealer or lessor providing assistive devices must be accredited by a nationally recognized accreditation body.

Section 15. Express warranty.

(a) A manufacturer who sells an assistive device to a consumer, either directly or through an assistive device dealer, must furnish the consumer with an express warranty for the assistive device. The duration of the express warranty must be not less than one year after the date that the assistive device is first delivered to the consumer. In the absence of an express warranty from the manufacturer, the manufacturer must warrant to the consumer of an assistive device that, for a period of one year after the date that the assistive device is first delivered to the consumer, the assistive device will be free from any condition or defect that substantially impairs the value of the assistive device to the consumer.

(b) If a new assistive device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive device lessor, or any manufacturer's authorized assistive device dealer and makes the assistive device available for repair before one year after the date that the assistive device was first delivered to the consumer, the nonconformity must be repaired at no charge to the consumer.

(c) If the nonconformity is not repaired after a reasonable attempt to do so, and if the assistive device is out of service for an aggregate period of at least 30 days because of the nonconformity, the manufacturer must comply with Section 20.

Section 20. Failure to repair.

(a) If a nonconformity is not repaired after a reasonable attempt to do so, then at the direction of the consumer the manufacturer must do one of the following:

(1) Accept return of the assistive device, replace the assistive device with a comparable new assistive device, and refund any collateral cost.

(2) Accept return of the assistive device and refund to the consumer and to any holder of a perfected security interest in the consumer's assistive device the full purchase price plus any finance charge amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use.

(3) With respect to a consumer who leases an assistive device from an assistive device lessor under a written lease, accept return of the assistive device, refund to the assistive device lessor and to any holder of a perfected security interest in the assistive device the current value of the written lease, and refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use.

(b) For purposes of this Section, a reasonable attempt to repair an assistive device includes a time period of no more than 30 days. This 30-day time limit applies both during the period of any warranty covering the assistance device and after the expiration of any such warranty period. An assistive device manufacturer's failure to repair an assistive device within 30 days is a violation of this Act unless the manufacturer complies with subsection (a) promptly after the expiration of the 30-day period.

For purposes of this Section, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive device dealer's early termination costs, and the value of the assistive device at the lease expiration date if the lease sets forth that value, less the assistive device lessor's reasonable allowance for use.

For purposes of this Section, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the consumer used the assistive device before first reporting the nonconformity to the manufacturer, assistive device lessor, or assistive device dealer.

(c) No person may enforce an assistive device lease against a consumer of the device after the consumer receives a refund under this Section.

Section 25. Receipt of new device or refund.

(a) To receive a comparable new assistive device or a refund due under Section 20, a consumer must offer to transfer possession of the device having a nonconformity to the manufacturer of the device. No later than 30 days after that offer, the manufacturer must provide the consumer with a comparable assistive device or a refund. When the manufacturer provides a new assistive device or a refund, the consumer must return the assistive device having the nonconformity to the manufacturer along with any endorsements necessary to transfer legal possession of the device to the manufacturer.

If a consumer who has purchased an assistive device returns the device as provided in this Section, the assistive device manufacturer may not charge the consumer a fee for restocking the assistive device that exceeds 10% of the device's purchase price.

(b) To receive a refund due under item (3) of subsection (a) of Section 20, a person who leases an assistive device from an assistive device lessor authorized under a written lease must offer to return the assistive device having the nonconformity to its manufacturer of the device. No later than 30 days after that offer, the manufacturer must provide the refund to the consumer. When the manufacturer provides the refund, the consumer must return the assistive device having the nonconformity to the manufacturer.

(c) To receive a refund due under item (3) of subsection (a) of Section 20, an assistive device lessor must offer to transfer possession of the assistive device having the nonconformity to the manufacturer of the device. No later than 30 days after that offer, the manufacturer must provide the refund to the assistive device lessor. When the manufacturer provides the refund, the assistive device lessor must provide to the manufacturer any endorsements necessary to transfer legal possession of the device to the manufacturer.

Section 30. Resale or lease of returned device prohibited.

An assistive device that has been returned by a consumer or assistive device lessor in this State under Section 25, or by a consumer or assistive device lessor in another state under a similar law of that state, may not be sold or leased again in this State unless full disclosure of the reasons for the device's return is made to any prospective buyer or lessee of the device.

Section 35. Arbitration.

(a) Upon payment of a prescribed fee, a consumer may submit any dispute arising under this Act to an alternative arbitration mechanism established under rules adopted by the Attorney General.

(b) The arbitration shall be conducted by a professional arbitrator or arbitration firm appointed by the Attorney General and under rules adopted by the Attorney General. The arbitration mechanism shall ensure the personal objectivity of its arbitrators and the right of each party to present its case, to be in attendance during any presentation made by the other party, and to rebut or refute the other party's presentation.

(c) This Section shall not be construed to limit rights or remedies available to a consumer under any other law.

Section 40. Consumer's rights; written statement; waiver prohibited.

(a) The Attorney General shall prepare a written statement of a consumer's rights under this Act and shall make copies of the statement available to assistive device manufacturers, manufacturers' authorized dealers, and assistive device lessors upon request. Before a consumer purchases or leases an assistive device:

(1) The manufacturer or dealer must give the consumer a copy of the statement if the consumer proposes to purchase the device.

(2) The manufacturer or lessor must give the consumer a copy of the statement if the consumer proposes to lease the device.

(b) A consumer's purported waiver of any of his or her rights under this Act is void.

Section 45. Enforcement; penalties.

(a) The Attorney General may impose a civil penalty in an amount not exceeding $10,000 for a violation of this Act, other than a failure to repair an assistive device within the time permitted under subsection (b) of Section 20, by an assistive device manufacturer, a manufacturer's authorized dealer, or an assistive device lessor. For a manufacturer's failure to repair an assistive device within 30 days as required under subsection (b) of Section 20, the Attorney General may impose a civil penalty in an amount not exceeding $250 per week for each week or part of a week in excess of those 30 days, except that the Attorney General shall not impose such a penalty if the manufacturer supplies a comparable device for the consumer's use promptly after the expiration of the 30-day period for making repairs.

The Attorney General may impose a civil penalty under this Section only after he or she provides the following to the manufacturer, dealer, or lessor:

(1) Written notice of the alleged violation.

(2) Written notice of the manufacturer, dealer, or lessor's right to request an administrative hearing on the question of the alleged violation.

(3) An opportunity to present evidence, orally or in writing or both, on the question of the alleged violation before an impartial hearing examiner appointed by the Attorney General.

(4) A written decision from the Attorney General, based on the evidence introduced at the hearing and the hearing examiner's recommendations, finding that the manufacturer, dealer, or lessor violated this Act and imposing the civil penalty.

(b) The Attorney General may bring an action in the circuit court to enforce the collection of a monetary penalty imposed under this Section.

Section 50. Damages. In addition to pursuing any other remedy, a consumer may bring an action to recover any damages caused by a violation of this Act. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, costs, disbursements, and reasonable attorney's fees, and any equitable relief that the court determines is appropriate.