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TAP Bulletin - May 1995
ASSISTIVE TECHNOLOGY LEMON LAWS
American consumers have long demanded warranties on large purchases such as automobiles and household appliances to protect themselves against the occasional dryer that no longer tumbles three weeks after purchased or the car that needs a new transmission one year after the purchase date. In other words, the proverbial "lemon." Individuals with disabilities are now demanding the same guarantees for purchases of assistive technology (AT).
Assistive technology for persons with disabilities is often an integral part of that person's ability to work, communicate, and live independently. Proper operation of equipment is critical to self-reliance. Yet, not all AT has a manufacturer's warranty. Some devices that carry a purchase tag of thousands of dollars carry only a 90-day or six-month warranty.
In many states, consumers of AT are standing up and speaking out, demanding replacement equipment, loaners while equipment is being fixed, free service on equipment and outright refunds! This issue of The TAP Bulletin examines assistive technology "lemon" or warranty legislation passed by states to date.
Twelve states have passed consumer protection legislation, commonly referred to as assistive technology "lemon laws." These states are: California, Georgia, Louisiana, Maryland, Michigan, Minnesota, Missouri, Montana, New York, Pennsylvania, Washington, and Wisconsin. A few other states have similar legislation pending or are working on drafts for future introduction in their state legislatures.
Lemon laws typically demand a minimum one-year warranty on assistive equipment beginning on the date of delivery, not the purchase date. This is an important specification because some consumers wait weeks or months from the order date to the delivery date. While some state warranty laws cover all AT or AT over a specified dollar amount, most cover only motorized wheelchairs (see state-specific data chart).
Louisiana's "lemon law" is considered by many legal experts to be the nation's model AT lemon law because it contains the broadest coverage. The law applies to all assistive devices, without limits. To qualify as a lemon the product must have either broken two times for the same reason within the first year, or have been out-of-service 30 days for any reason within the first year. These provisions within Louisiana's AT lemon law give consumers of AT in Louisiana broader protection than in any other state in the country.
In contrast, New York's lemon law provides narrower coverage. To qualify as a lemon, the product must have been repaired four times for the same reason and been out-of-service 30 days within the first year, or have been out-of-service for 60 days for the same reason within the first year. New York's Technology Related Assistance for Individual's with Disabilities (TRAID) Project plans to undertake a review of the impact of their state's lemon law later this year (see page 2 for more on NY's law).
Due to efforts of the Louisiana Assistive Technology Access Network (LATAN), an equipment lemon law was passed, House Bill No. 1956, which provides warranties for new assistive devices, time limits for warranties, and nonconformity disclosure requirements. It defines terms such as: "collateral costs," "consumer/agency," "early termination cost," "early termination savings," "manufacturer," "assistive device," and "reasonable attempt to repair." It also provides for reimbursements and replacements.
In Minnesota, the Assistive Device Warranty Protection Act was signed into law by the governor May 19, 1995 and becomes effective August 1, 1995. It was a Department of Administration initiative that was started by the governor's advisory council on technology for people with disabilities and the department's Minnesota STAR Program. The AT lemon law protects the rights of people with disabilities in the purchase of assistive devices. While it does not alter any warranty that offers greater protection, it affords a basic level of consumer protection by providing that if a device is taken in for repairs three times in the first year for the same problem, or if it is in the repair process for over thirty days in the first year, then the device can either be returned for a full refund or exchanged for a new device at the consumer's option. The warranty does not include defects that result from misuse or alterations. It also has a provision that it is the manufacturer's responsibility to provide a replacement device or reimbursement for temporary replacement of assistive devices for the duration of the repair period.
Pennsylvania's Motorized Wheelchair Warranty Act covers motorized wheelchairs for at least a year that have been repaired four times for the same nonconformity or have been out-of-service for an "aggregate" of at least 30 days. Like Minnesota's lemon law, it also does not cover defects resulting from abuse, neglect or unauthorized modifications by the consumer.
Maryland Technology Assistance Program (TAP) researched national lemon law legislation. This resulted in the Motorized Wheelchair Warranty Enforcement Act signed into law by Governor William Donald Schaefer on April 12, 1994. This act defines a lemon as "a motorized wheelchair or scooter with a "substantial" defect, which the manufacturer or its authorized dealer has unsuccessfully attempted to repair at least four times, or which has been out-of-service because of "substantial" defects for a total of thirty calendar days within one year after first delivery to the consumer. The thirty days DO NOT have to be consecutive." [Tapping Technology, p 2. (Maryland TAP newsletter)]. Specific provisions of the bill include, but are not limited to: certain express warranties; duration of certain warranties; prohibiting resale of returned non-conforming wheelchairs without full disclosure; repair, return and replacement of wheelchair; procedures for return of certain non-conforming wheelchairs; any waiver of consumer rights is void under this Act; and authorization of consumer action for damages, fees, costs and other equitable relief (Provisions of the Motorized Wheelchair Warranty Enforcement Act fact sheet, Maryland TAP).
In Wisconsin, a law was enacted in 1992 also relating to motorized wheelchair warranties. Wisconsin Act 222 requires manufacturers to issue express warranties to consumers purchasing motorized wheelchairs with the duration of the warranty being one year after first delivery to the consumer. It also includes provisions in case a "reasonable attempt to repair" the wheelchair fails. Replacement of the wheelchair with a comparable new motorized wheelchair and refunding "collateral costs" is one option. Collateral costs is defined in this act as "expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative wheelchair or other assistive device for mobility" [Sec. 134.87 (a)]. The other option is accepting the return of the "lemon" and refunding the consumer. Collateral costs and usage of the device are considered in regard to refunds. If the consumer demands a refund, they may receive collateral costs as well. Other refund and replacement provisions are included in this act as well.
Michigan's lemon law (Public Act #54 of 1994) is similar to the above mentioned laws requiring an express warranty (one-year minimum) by the manufacturer and states, "If the manufacturer is found to have violated this act the courts shall award the consumer twice the amount of any damages plus attorney fees." [Tech 2000, p.3 (Michigan's AT project newsletter)]. The Michigan Tech Act project, Michigan Tech 2000, is currently working to amend this act, trying to get coverage for all AT and to extend the warranty from one year after first delivery to three years.
The Missouri Assistive Technology Project (MATP) efforts to promote the passage of a one-year warranty and lemon protection for all assistive devices used by consumers with disabilities successfully passed the state legislature and was signed into law June 13, 1995.
A lemon is an assistive device with a substantial defect which rises in the device itself and not from consumer abuse. After attempting to repair the device four times, or being without the device for 30 days due to a substantial defect, the device can be returned to the manufacturer for a comparable device or refund. Project staff report that early opposition focused on arguments that distributors would make good faith efforts to work with consumers who purchased defective equipment to repair or replace the device and that distributors with unfair practices would be naturally weeded out of the market. The MATP was able to demonstrate that comparison shopping for AT is rarely possible, since only one manufacturer may produce a particular device or a third-party payor may fund only a single approved vendor. Therefore using the free market to address lemons is not practical.
Many devices are purchased with tax dollars through Vocational Rehabilitation or Medicaid and lemons bought with these dollars are a waste of public money on the initial purchase. The MATP is now beginning to disseminate information on the new statute to consumers and the general public through press releases to disability and advocacy related organizations.
The Motorized Wheelchair Lemon Law (General Business Law § 670) enacted in August 1993, provides a minimum one-year warranty covering both parts and labor from the date of first delivery to the consumer. The lemon law covers only motorized wheelchairs but includes those purchased, leased or transferred in New York to a consumer. A consumer is protected when purchasing a wheelchair previously returned to the manufacturer under New York's or a similar lemon law of another state. The manufacturer may not sell or lease the returned wheelchair again in New York unless full disclosure of the reasons for return is made to the prospective buyer or lessor. The law also incorporates an alternative arbitration program for disputes. Arbitration offers the consumers an option that may be less complicated, time consuming and expensive than choosing to go to court.
The Attorney General's office of New York State Department of Law prepared a booklet "New York's Motorized Wheelchair Lemon Law: A Guide For Consumers" to help consumers understand the warranty law and instructions for the NY State Arbitration Program. Page 3 of the guide states: "If the wheelchair does not conform to the terms of the written warranty and the manufacturer or its authorized dealer is unable to repair the wheelchair after a reasonable number of attempts during the first year, the consumer can choose a full refund or a comparable new replacement wheelchair."
An important consumer tip in this guide includes the necessity of the consumer keeping "careful records of all complaints and copies of all work orders, repair bills and correspondence." The consumer has the burden of proving he/she owns a lemon and must have documentation of repeated attempts to have it repaired. Under the arbitration program, a consumer who does not have all the documents, may request the arbitrator to direct the manufacturer to provide necessary information or to subpoena documents or witnesses.
The Montana Wheelchair Warranty Act was endorsed by the Montana Consortium for Assistive Technology and developed by MonTECH and the Montana Advocacy Program through an agreement with the Protection & Advocacy service. The law takes effect October 1, 1995 and will cover any manually-powered or motor-driven wheelchair, scooter or other motorized device that is used for mobility assistance and costs $500 or more. The act states that failure by the manufacturer to provide a written warranty (minimum one year) results in the wheelchair to be covered under warranty "for a period of 2 years following the date of delivery of the wheelchair to the consumer."[H.B. 0335 Sec.3 (3).]
DakotaLink (South Dakota's Tech Act project) is currently surveying consumers and manufacturers to lay the groundwork for AT lemon legislation. They seek to build upon the state's General Product Liability Law, which is based upon the federal Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (P.L. 93-637). Signed into law in January 1975, P.L. 93-637 recognizes the need for minimum warranty protection for consumers, for consumer understanding of warranties, for assurance of performance and for better product reliability.
Georgia Tools For Life worked to get the Assistive Technology Warranty Act (House Bill 93) and Motorized Wheelchair Warranty Act (Senate Bill 11) passed in Georgia State. The Assistive Technology Warranty Act covers AT devices defined as "any device or equipment with a retail cost of $1,000 or more, that assists a person with disabilities to perform specific tasks such as moving, walking, standing, speaking, breathing, hearing, seeing, grasping, or caring for himself or herself that would not be possible for such person without an assistive technology device." [H.B. 93 Sec.1 Art. 31 (1)].
The California Civil Code contains two sections relating to AT warranties, Section 1793.02 Written Warranty to Accompany Assistive Devices and Section 1793.025, Warranty Requirements for Motorized Wheelchairs; Disclosure Requirements for Defective Wheelchairs. Section 1793.02 (a) states that all new and used AT sold at retail in California may be returned to the seller within 30 days of actual receipt by the consumer or completion of fitting by the seller, whichever occurs later. Civil Code Section 1793.025 (a) states that "the warranty shall be for a period of at least one year from the date of the first delivery of the wheelchair to the consumer." The wheelchair may be repaired four or more times bythe "manufacturer, lessor, or an agent of."
STATES WITH PENDING LEMON LAWS
The Massachusetts Assistive Technology Partnership Center is pursuing passage of a lemon law bill covering customized wheelchairs in Massachusetts. The Illinois Assistive Technology Project is working with the Attorney General's Office on the development of a warranty act that would cover all AT. In Utah a lemon law has been presented but not passed. The Utah Assistive Technology Program will introduce a lemon law again in 1996 as part of its legislative agenda.
To find out more about these lemon laws, contact the state Tech Act project directly. For state project contact information, see the state contact list.
ASSISTIVE TECHNOLOGY LEMON LAWS AT-A-GLANCE
STATE TYPES OF AT COVERED TO QUALIFY AS THE AT A LEMON THE AT MUST MUST BE HAVE BEEN REPAIRED: OUT-OF- SERVICE FOR:
The RESNA Technical Assistance Project (#HN92031001) is funded by the National Institute on Disability and Rehabilitation Research (NIDRR), U.S. Department of Education (ED) under the Technology-Related Assistance for Individuals with Disabilities Act Amendments of 1994. The information contained herein does not necessarily reflect the position or policy of NIDRR/ED or RESNA and no official endorsement of the material should be inferred.
The National Assistive Technology Technical Assistance Partnership is a cooperative agreement between the U.S. Department of Education and RESNA. The grant (Grant #H224B050003; CFDA 84.224B) is funded under the Assistive Technology Act of 1998, as amended and administered by the Rehabilitation Services Administration, Office of Special Education and Rehabilitative Services at the U.S. Department of Education.
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