103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3602

 

Introduced 2/17/2023, by Rep. Michelle Mussman

 

SYNOPSIS AS INTRODUCED:
 
New Act
815 ILCS 505/2BBBB new

    Creates the Powered Wheelchair Right to Repair Act. Provides that, for powered wheelchairs and parts for powered wheelchairs sold or used in the State, an original equipment manufacturer shall make available to an independent repair provider, solely for the purpose of repairing powered wheelchairs, on fair and reasonable terms, any documentation, parts, service access methods, and tools, including, but not limited to, any updates to information, firmware, or embedded software that is needed for purposes of repair of powered wheelchairs and training courses and materials on the operation, inspection, diagnosis, maintenance, and repair of powered wheelchairs. Provides that a violation of any of the provisions of the Act is an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. Provides for penalties. Provides that nothing in the Act shall require an original equipment manufacturer to divulge a trade secret to an independent repair provider. Amends the Consumer Fraud and Deceptive Business Practices Act making a conforming change. Effective January 1, 2024.


LRB103 28528 SPS 54909 b

 

 

A BILL FOR

 

HB3602LRB103 28528 SPS 54909 b

1    AN ACT concerning business.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the
5Powered Wheelchair Right to Repair Act.
 
6    Section 5. Definitions. As used in this Act:
7    "Authorized repair provider" means an individual or
8business who has an arrangement with the original equipment
9manufacturer under which the original equipment manufacturer
10grants to the individual or business a license to use a trade
11name, service mark, or other proprietary identifier for the
12purposes of offering the services of diagnosis, maintenance,
13or repair of a powered wheelchair under the name of the
14original equipment manufacturer, or other arrangement with the
15original equipment manufacturer to offer such services on
16behalf of the original equipment manufacturer. An original
17equipment manufacturer who offers the services of diagnosis,
18maintenance, or repair of its own powered wheelchair, and who
19does not have an arrangement with an unaffiliated individual
20or business, shall be considered an authorized repair provider
21with respect to powered wheelchairs.
22    "Documentation" means any manual, diagram, reporting
23output, service code description, schematic diagram, security

 

 

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1codes, passwords, or other guidance or information used in
2effecting the services of diagnosis, maintenance, or repair of
3a powered wheelchair.
4    "Fair and reasonable terms" means making available parts,
5tools, or documentation as follows:
6        (1) that documentation is made available by the
7    original equipment manufacturer at no charge, except that,
8    when the documentation is requested in physical printed
9    form, a charge may be included for the reasonable, actual
10    costs of preparing and sending the copy;
11        (2) that tools are made available by the original
12    equipment manufacturer at no charge and without requiring
13    authorization or internet access for use or operation of
14    the tool, or imposing impediments to access or use of the
15    tools to diagnose, maintain, or repair and enable full
16    functionality of digital electronic equipment, or in a
17    manner that impairs the efficient and cost-effective
18    performance of any such diagnosis, maintenance, or repair,
19    except that, when the tool is requested in physical form,
20    a charge may be included for the reasonable, actual costs
21    of preparing and sending the tool; and
22        (3) that parts are made available by the original
23    equipment manufacturer, either directly or through an
24    authorized repair provider, to independents repair
25    providers and owners at costs and terms that are
26    equivalent to the most favorable costs and terms under

 

 

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1    which an original equipment manufacturer offers the parts
2    to an authorized repair provider and that:
3            (A) accounts for any discount, rebate, convenient
4        and timely means of delivery, means of enabling fully
5        restored and updated functionality, rights of use, or
6        other incentive and preference the original
7        manufacturer offers to an authorized repair provider,
8        or any additional cost, burden, or impediment the
9        original equipment manufacturer imposes on an owner or
10        independent repair provider;
11            (B) is not conditioned on or imposing a
12        substantial obligation or restriction that is not
13        reasonably necessary for enabling the owner or
14        independent repair provider to engage in the
15        diagnosis, maintenance, or repair of equipment made by
16        or on behalf of the original equipment manufacturer;
17        and
18            (C) is not conditioned on an arrangement with the
19        original equipment manufacturer.
20    "Independent repair provider" means an individual or
21business operating in this State that is unaffiliated with an
22original equipment manufacturer that is engaged in the
23services of diagnosis, maintenance, or repair of powered
24wheelchairs.
25    "Original equipment manufacturer" means a business engaged
26in the business of selling, leasing, or otherwise supplying

 

 

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1new powered wheelchairs manufactured by, or on behalf of,
2itself, to any individual or business.
3    "Owner" means an individual or business who owns or leases
4a powered wheelchair purchased or used in this State.
5    "Part" means any replacement part, either new or used,
6made available by an original equipment manufacturer for
7purposes of effecting the services of maintenance or repair of
8a powered wheelchair manufactured by or on behalf of, sold, or
9otherwise supplied by the original equipment manufacturer.
10    "Powered wheelchair" means a motorized wheeled device
11designed for use by a person with a physical disability.
12    "Tools" means any software program, hardware implement, or
13other apparatus used for diagnosis, maintenance, or repair of
14a powered wheelchair, including software or other mechanisms
15that provision, program, or pair a new part, calibrate
16functionality, or perform any other function required to bring
17the product back to fully functional condition, including any
18updates.
19    "Trade secret" has the meaning given to that term in
20subsection (d) of Section 2 of the Illinois Trade Secrets Act.
 
21    Section 10. Requirements.
22    (a) For powered wheelchairs and parts for powered
23wheelchairs that are sold or used in this State, an original
24equipment manufacturer shall make available to any independent
25repair provider and owner of a powered wheelchair manufactured

 

 

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1by on behalf of, or sold by such original equipment
2manufacturer, on fair and reasonable terms, any documentation,
3parts, and tools, required for the diagnosis, maintenance, or
4repair of such a powered wheelchair and parts for the powered
5wheelchair, inclusive of any updates to information. The
6documentation parts and tools shall be made available either
7directly by the original equipment manufacturer or via an
8authorized repair provider.
9    (b) For equipment that contains an electronic security
10lock or other security-related function, the original
11equipment manufacturer shall make available to any owner and
12independent repair provider, on fair and reasonable terms, any
13special documentation, tools, and parts needed to access and
14reset the lock or function when disabled in the course of
15diagnosis, maintenance, or repair of the powered wheelchair.
16The documentation, tools, and parts may be made available
17through appropriate secure release systems.
 
18    Section 15. Enforcement by Attorney General. A violation
19of any of the provisions of this Act is an unlawful practice
20under the Consumer Fraud and Deceptive Business Practices Act.
21All remedies, penalties, and authority granted to the Attorney
22General by that Act shall be available to him or her for the
23enforcement of this Act.
 
24    Section 20. Limitations.

 

 

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1    (a) Nothing in this Act shall require an original
2equipment manufacturer to divulge any trade secret to any
3owner or independent service provider.
4    (b) Nothing in this Act shall to alter the terms of any
5arrangement in force between an authorized repair provider and
6an original equipment manufacturer, including, but not limited
7to, the performance or provision of warranty or recall repair
8work by an authorized repair provider on behalf of an original
9equipment manufacturer and pursuant to such arrangement,
10except that any provision in the terms that purports to waive,
11avoid, restrict or limit the original equipment manufacturer's
12obligations to comply with this Act shall be void and
13unenforceable.
14    (c) No original equipment manufacturer or authorized
15repair provider shall be liable for any damage or injury
16caused to any powered wheelchair by an independent repair
17provider or owner which occurs during the course of repair,
18diagnosis, or maintenance.
 
19    Section 25. Applicability. This Act applies with respect
20to powered wheelchairs sold or in use on or after the effective
21date of this Act.
 
22    Section 90. The Consumer Fraud and Deceptive Business
23Practices Act is amended by adding Section 2BBBB as follows:
 

 

 

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1    (815 ILCS 505/2BBBB new)
2    Sec. 2BBBB. Violations of the Powered Wheelchair Right to
3Repair Act. A person who violates the Powered Wheelchair
4Right to Repair Act commits an unlawful practice within the
5meaning of this Act.
 
6    Section 99. Effective date. This Act takes effect January
71, 2024.