75(R) HB 878 House committee report

GEC C.S.H.B. 878 75(R)    BILL ANALYSIS


BUSINESS & INDUSTRY
C.S.H.B. 878
By: Naishtat
4-16-97
Committee Report (Substituted)



BACKGROUND 

Consumers currently have warranty protections in place for large purchases
such as automobiles to protect themselves against the occasional "lemon."
"Lemons" are broadly defined as equipment with substantial and continuing
defects that are not the fault of the consumer.  Lemon laws provide a
minimum level of warranty for these purchases, providing for the
definition of a what constitutes a "lemon" as well as the terms of repair
and replacement of the defective purchase. 

PURPOSE

House Bill 878 would provide the minimum level of warranty for assistive
technology devices with a retail value of $1000 or more, set time limits
on the warranties, provide for disclosure by the manufacturer for any
nonconformity of the device, and set the definitions of a defective
assistive technology device. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1. Chapter 20, Title 132, Revised Statutes, is amended by adding
Article 9001 to                           read as follows: 

  Art. 9001. ASSISTIVE TECHNOLOGY WARRANTIES

  Sec. 1. SHORT TITLE.  This article may be cited as the Assistive
Technology   Warranty Act. 

  Sec. 2. DEFINITIONS.  Provides for the definitions of the terms used in
this   article. 

  Sec. 3. WARRANTY FOR ASSISTIVE TECHNOLOGY DEVICE. Requires that   a
manufacturer provide a warranty to the consumer, and states the terms of
the   warranty. 

  Sec. 4. 30-DAY RETURN PRIVILEGE.  Requires that the manufacturer or
dealer   of the assistive technology device shall accept the return of a
device that does not   meet the needs of the person with the disability.
Refunds will be made in                accordance with section 9 of this
article.  Devices that are specially fitted are   exempt from this
section. 

  Sec. 5. REPAIR OR RETURN DUE TO CONSUMER'S PHYSICAL CHANGE.
  A manufacturer or dealer is not required to accept the return of a
device if a   physical change to the consumer has affected the ability of
the consumer to use   the device. 
 
  Sec. 6. REPAIR OF NONCONFORMING ASSISTIVE TECHNOLOGY
DEVICE. Requires that a nonconformity covered by the warranty be repaired
and   provides for terms of notification by the consumer or lessee of the
device. 

  Sec. 7. CONSUMER OR LESSEE'S LIABILITY FOR REPAIR.  Provides for the
terms under which the consumer or lessee is liable for repair of the
assistive   technology device.  The manufacturer must also notify the
consumer before   making any repairs to the device if the repairs are not
covered by the warranty. 

  Sec. 8. REASONABLE ATTEMPT TO REPAIR NONCONFORMITY.  Provides   for the
terms of a reasonable attempt to repair a nonconformity in an assistive
technology device. 

  
  Sec. 9. REFUND OR REPLACEMENT OF ASSISTIVE TECHNOLOGY   DEVICE THAT IS
NOT LEASED.  Provides for the terms under which a   consumer may return
the assistive technology device and receive a replacement or   refund of
the device. Provides for the compensation to the consumer of the cost of
the device and any collateral costs, allowing for use of the device. 

  Sec. 10.REFUND FOR ASSISTIVE TECHNOLOGY DEVICE THAT IS   LEASED.
Requires that the manufacturer of the device accept the return of the
nonconforming device and make the appropriate refund to the lessee and
lessor of   the device.  Provides for the definitions of terms used in
this section. 

  Sec. 11 RETURN OF A PHYSICALLY ALTERED ASSISTIVE      TECHNOLOGY DEVICE.
Provides that the manufacturer is not required to   accept the return of a
device if the user intentionally alters the device in a manner   that
affects its use. 

  Sec. 12. PROCEDURES FOR RECEIPT OF REPLACEMENT DEVICE OR   REFUND.
Specifies the procedures for the notification and return of a
nonconforming assistive technology device. 

  Sec. 13. ENFORCEMENT OF LEASE FOLLOWING REFUND.  Provides that a   lease
may not be enforced against a lessee who receives a refund under section
10   of this article. 

  Sec 14. DISCLOSURE REQUIREMENT FOR SALE OR LEASE OF CERTAIN   ASSISTIVE
TECHNOLOGY DEVICES.  Requires that a device returned under   section 9 or
10 of this article, or returned in another state under a similar law, have
full disclosure of  the reasons for the return. 

  Sec 15. RIGHTS AND REMEDIES UNDER OTHER LAWS OR CONTRACTS.   Provides
that this article may not limit the rights or remedies available to a
consumer, lessee, or lessor under any other law or contract. 

  Sec. 16. WAIVER VOID. A consumer or lessee may not waive the rights
provided under this article. 

  Sec. 17. CAUSE OF ACTION; DAMAGES.  Allows a consumer or lessee to
bring action to recover damages caused by a violation or this article.
Provides for   the costs that may be recovered and limits the amount
recovered. 

SECTION 2. Effective date.

SECTION 3. Emergency clause.


 COMPARISON OF ORIGINAL TO SUBSTITUTE

The following changes were made to Section 1:
 Section 2(1)(B): The term "driving or riding in a motor vehicle" is added
to the definition  of functions done by an assistive technology device. 

 Section 2(2): The cost of employing a person to assist the consumer in
performing the  functions that the assistive technology device assisted
the consumer in performing is  added to the definition of collateral
costs. 

 Section 2(4): Adds the term "or person who routinely sells assistive
technology devices"  to the definition of a dealer. 

 Section 2(8): Removes the term "condition" from the definition of
nonconformity. 

 Section 2(9): Adds "this state" and "a state agency" to the definition of
a person. 

 Section 3(b)(1): Includes "manufacturer" and "design" in the coverage of
the warranty. 
            
 Section 4: Adds an exemption for specially fitted items from the 30 day
return guarantee. 
         
            Section 4(b): Provides that a lessor shall provide to the
consumer a refund in accordance               with Section 9 of the
article. 
  
 New Section 5: Adds that a device cannot be returned if there are
physical changes to the  consumer or lessee that prohibit the use of the
device. 

 Section 7: Formerly Section 6, adds a provision that the manufacturer
notify the consumer  or lessee prior to making repairs that are not
covered by warranty. Also adds that a trier  of fact will determine if a
repair is covered by a warranty at any subsequent proceeding. 

 Section 8: Formerly Section 7, changes "the first anniversary of the date
the device is first  delivered to the consumer or lessee" to "the end of
the one year warranty created by this  act." 

 New Section 11:  States that a device cannot be returned under this act
if there have been  alterations made to a device while in the possession
of the consumer or lessee. The                        remaining sections
are renumbered. 

 Section 14: Formerly Section 12, adds a provision which requires full
disclosure if a  device has been made to non-standard specification and
has been returned. 

 Section 17: Formerly Section 15, adds "expert witness costs" to the costs
a consumer or  lessee is entitled to recover.