PRINTER'S NO. 3786
No. 2584 Session of 2004
INTRODUCED BY J. EVANS, GOOD, THOMAS, FABRIZIO, BAKER, BROWNE, BUNT, CAPPELLI, CORRIGAN, COSTA, CRAHALLA, CURRY, DALEY, DeWEESE, FICHTER, FRANKEL, FREEMAN, GEIST, GEORGE, GILLESPIE, GOODMAN, HARHAI, HENNESSEY, HERMAN, HORSEY, JAMES, KILLION, KOTIK, LAUGHLIN, LEACH, LEVDANSKY, MANDERINO, NAILOR, PALLONE, PETRARCA, PICKETT, PRESTON, RAYMOND, REICHLEY, SCHRODER, SOLOBAY, E. Z. TAYLOR, TIGUE, WASHINGTON, WATERS, WATSON, WEBER, WHEATLEY AND YOUNGBLOOD, APRIL 15, 2004
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, APRIL 15, 2004
AN ACT 1 Relating to the rights of purchasers of assistive technology 2 devices. 3 The General Assembly of the Commonwealth of Pennsylvania 4 hereby enacts as follows: 5 Section 1. Short title. 6 This act shall be known and may be cited as the Assistive 7 Technology Device Warranties Act. 8 Section 2. Definitions. 9 The following words and phrases when used in this act shall 10 have the meanings given to them in this section unless the 11 context clearly indicates otherwise: 12 "Assistive device dealer." A person or entity that is in the 13 business of selling assistive devices, including a manufacturer 14 who sells assistive technology devices directly to consumers.
1 "Assistive device lessor." A person or entity that leases an 2 assistive device to a consumer or who holds the lessor's rights 3 under a written lease. 4 "Assistive technology device," "assistive device" or 5 "device." A new device, including a demonstrator, that a 6 consumer purchases or accepts transfer of in this Commonwealth 7 which is used for a major life activity or any other assistive 8 device that enables a person with a disability to communicate, 9 see, hear or maneuver. The term includes, but is not limited to: 10 (1) A manual wheelchair, motorized wheelchair, motorized 11 scooter and other aid that enhances the mobility of an 12 individual. 13 (2) A hearing aid, telephone communication device for 14 the deaf (TTD/TTY), assistive listening device, visual and 15 audible signal system and other aid that enhances an 16 individual's ability to hear. 17 (3) A voice-synthesized computer module, optical 18 scanner, talking software, Braille printer and other device 19 that enhances a sight-impaired individual's ability to 20 communicate. 21 "Authorized dealer." An assistive device dealer that has 22 within a specified geographic area an exclusive distribution 23 arrangement with any person or entity that manufactures or 24 assembles assistive devices or is designated by the person or 25 entity that manufactures or assembles assistive devices to 26 repair or accept for repair assistive devices. 27 "Collateral costs." Expenses incurred by a consumer in 28 connection with the repair of a nonconformity, including the 29 reasonable costs of obtaining an alternative assistive device. 30 "Consumer." A person with a disability as defined in the 20040H2584B3786 - 2 -
1 Americans With Disabilities Act of 1990 (Public Law 101-336, 42 2 U.S.C. § 12102 et seq.) or that person's legal representative 3 who has purchased an assistive device from an assistive device 4 dealer or manufacturer for purposes other than resale, to whom 5 the assistive device is transferred for purposes other than 6 resale, if the transfer occurs before the expiration of any 7 warranty established by this act or who leases a new assistive 8 device from an assistive device lessor under a written lease. 9 The term includes an entity that purchases or leases an 10 assistive device using Federal or State funds for the use of a 11 person with a disability, insurer or self-insurer which 12 purchases or leases an assistive device for the use of a person 13 with a disability. 14 "Demonstrator." An assistive device used primarily for the 15 purpose of demonstration to the public. 16 "Manufacturer." A person or entity that manufactures or 17 assembles assistive devices and any agent of that person or 18 entity, including an authorized dealer, an importer, a 19 distributor, factory branch, distributor branch and any 20 warrantor of the manufacturer's assistive device. The term does 21 not include a professional who fabricates without charge an 22 assistive device for use in the course of treatment. 23 "Nonconformity." A condition or defect that significantly 24 impairs the use, value, function or safety of an assistive 25 device or any of its components but does not include a condition 26 or defect of the assistive device that is the result of: 27 (1) abuse, misuse or neglect by a consumer; 28 (2) modifications or alterations not authorized by the 29 manufacturer; 30 (3) normal wear; 20040H2584B3786 - 3 -
1 (4) normal use which may be resolved through a fitting 2 adjustment, routine maintenance, preventative maintenance or 3 proper care; or 4 (5) a consumer's failure to follow a manufacturer's 5 written service and maintenance guidelines furnished to the 6 consumer at the time of purchase. 7 "Reasonable attempt to repair." Within one year after the 8 date of first delivery of an assistive device: 9 (1) the same nonconformity has been subject to repair 10 three or more times by the manufacturer, assistive device 11 lessor or an assistive device dealer authorized by the 12 manufacturer to repair the assistive device and the 13 nonconformity continues to exist and interfere with the 14 device's operation; or 15 (2) the assistive device is out of service for a 16 cumulative total of at least 30 days, exclusive of any 17 necessary time in shipment, due to repair by the 18 manufacturer, assistive device lessor or an assistive device 19 dealer authorized by the manufacturer to repair the assistive 20 device, all of which is due to warranty nonconformities. 21 Section 3. Implied warranty; responsibility for repair, return 22 or replacement. 23 (a) General rule.--Notwithstanding any other provision of 24 law, in addition to any express warranty furnished by the 25 manufacturer of an assistive device, the manufacturer shall also 26 be deemed to have warranted to any consumer purchasing or 27 leasing the assistive device within this Commonwealth that for a 28 period of one year from the date of first delivery to the 29 consumer: 30 (1) The assistive device, when used as intended, will be 20040H2584B3786 - 4 -
1 free from any nonconformity. 2 (2) Any nonconformity will be repaired, including parts 3 and labor, by the manufacturer or its agent, without charge 4 to the consumer. 5 (b) Replacement or refund.--If, after reasonable attempt to 6 repair, a nonconformity is not repaired, the manufacturer shall 7 either accept return of the nonconformity and replace the 8 nonconformity with an assistive device of comparable market 9 value, function and usefulness or accept return of the 10 nonconformity and refund, within 14 days, the full purchase or 11 lease price. 12 Section 4. Return of nonconformity; subsequent sale or lease; 13 disclosure. 14 No assistive device returned due to a nonconformity by a 15 consumer or assistive device lessor in this Commonwealth or any 16 other state may be sold or leased again in this Commonwealth 17 unless full disclosure of the reason for the return is made to a 18 prospective buyer or lessee. 19 Section 5. Application of Unfair Trade Practices and Consumer 20 Protection Law. 21 A violation of this act shall also be a violation of the act 22 of December 17, 1968 (P.L.1224, No.387), known as the Unfair 23 Trade Practices and Consumer Protection Law. 24 Section 6. Rights preserved. 25 Nothing in this act shall limit the purchaser from pursuing 26 any other rights or remedies under any other law, contract or 27 warranty. 28 Section 7. Waiver. 29 A manufacturer's exclusion or limitation of the implied 30 warranties, consumer remedies or right to legal action or 20040H2584B3786 - 5 -
1 arbitration by a consumer within an assistive device purchase 2 agreement shall be deemed void. 3 Section 8. Effective date. 4 This act shall take effect in 60 days. C15L12DMS/20040H2584B3786 - 6 -