SB2697 94TH GENERAL ASSEMBLY

LRB094 18996 LCT 54477 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2697

Introduced 1/20/2006, by Sen. Iris Y. Martinez - Jacqueline Y. Collins

SYNOPSIS AS INTRODUCED:

815 ILCS 301/5
815 ILCS 301/12 new
815 ILCS 301/17 new
815 ILCS 301/18 new
815 ILCS 301/27 new
815 ILCS 301/33 new

Amends the Assistive Technology Warranty Act. Defines "Department". 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 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. Requires the Department of Human Services 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. Authorizes the Department of Human Services to impose civil penalties for violations of the Act. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning business.

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

Section 5. The Assistive Technology Warranty Act is amended by changing Section 5 and by adding Sections 12, 17, 18, 27, and 33 as follows:

(815 ILCS 301/5)

Sec. 5. Definitions. In this Act:

"Assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is purchased or leased, or whose transfer is accepted in this State, and that is used to increase, maintain, or improve functional capabilities of individuals with disabilities. "Assistive technology device" does not mean any medical device, surgical device, or organ implanted or transplanted into or attached directly to an individual. "Assistive technology device" does not include a "hearing instrument" or "hearing aid" as defined in the Hearing Instrument Consumer Protection Act. "Assistive technology device" also does not include any device for which a certificate of title is issued by the Secretary of State, Division of Motor Vehicles, but does mean any item, piece of equipment, or product system otherwise meeting the definition of "assistive technology device" that is incorporated, attached, or included as a modification in or to such certificated device.

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

"Assistive technology device lessor" means a person who leases assistive technology devices to consumers, 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 shipping, sales tax, and the cost of obtaining an alternative assistive technology device.

"Consumer" means any one of the following:

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

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

(3) A person who may enforce a warranty applicable to an assistive technology device.

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

"Consumer" does not include a person who acquires an assistive technology device at no charge through a donation.

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

"Department" means the Department of Human Services.

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

"Early termination savings" means any expense or obligation that an assistive technology device lessor avoids as a result of both the termination date set forth in the lease and the return of an assistive technology device to a manufacturer, including an interest charge that the assistive technology device lessor would have paid to finance the assistive technology device or, if the assistive technology device lessor does not finance the assistive technology device, the difference between the total payments remaining for the period of the lease term remaining after the early termination and the present value of those remaining payments at the date of the early termination.

"Loaner" means an assistive technology device provided free of charge to a consumer, for use by the consumer, that need not be new or identical to, or have functional capabilities equal to or greater than, those of the original assistive technology device, but that meets all of the following conditions:

(1) It is in good working order.

(2) It performs, at a minimum, the most essential functions of the original assistive technology device in light of the disabilities of the consumer.

(3) There is no threat to the health or safety of the consumer due to any differences between the loaner and the original assistive technology device.

"Manufacturer" means a person who manufactures or assembles assistive technology devices and (i) any agent of that person, including an importer, distributor, factory branch, or distributor branch, and (ii) any warrantor of an assistive technology device. The term does not include an assistive technology device dealer or assistive technology device lessor.

"Nonconformity" means any defect, malfunction, or condition that substantially impairs the use, value, or safety of an assistive technology device or any of its component parts, but does not include a condition, defect, or malfunction that is the result of abuse, neglect, or unauthorized modification or alteration of the assistive technology device by the consumer.

"Reasonable attempt to repair" means any of the following occurring within the term of an express warranty applicable to a new assistive technology device or within one year after the first delivery of the assistive technology device to a consumer, whichever is sooner:

(1) The manufacturer, the assistive technology device lessor, or any of the manufacturer's authorized assistive technology device dealers accept return of the new assistive technology device for repair at least 2 times.

(2) The manufacturer, the assistive technology device lessor, or any of the manufacturer's authorized assistive technology device dealers place the assistive technology device out of service for an aggregate of at least 30 cumulative days because of nonconformities covered by a warranty that applies to the device.

(Source: P.A. 94-378, eff. 1-1-06.)

(815 ILCS 301/12 new)

Sec. 12. 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 of 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 within the 12 months immediately prior to July 1, 2007, 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, 2008, 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, 2007, 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 per year in the area of assistive devices.

(e) On and after July 1, 2007, 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, 2007, 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, 2010, 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, 2010, 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, 2007, 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, 2010, every assistive device dealer or lessor providing assistive devices must be accredited by a nationally recognized accreditation body.

(815 ILCS 301/17 new)

Sec. 17. 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.

(815 ILCS 301/18 new)

Sec. 18. Receipt of new device or refund.

(a) To receive a comparable new assistive device or a refund due under Section 17, 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 17, 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 the 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 17, 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.

(815 ILCS 301/27 new)

Sec. 27. Consumer's rights; written statement; waiver prohibited. The Department 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.

(815 ILCS 301/33 new)

Sec. 33. Enforcement; penalties.

(a) The Department 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 17, 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 17, the Department 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 Department 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 Department may impose a civil penalty under this Section only after it 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 Department.

(4) A written decision from the Department, 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 Department may bring an action in the circuit court to enforce the collection of a monetary penalty imposed under this Section.

Section 99. Effective date. This Act takes effect upon becoming law.