Legislature(1997 - 1998)
04/06/1998 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 451 - ASSISTIVE TECHNOLOGY & MOBILITY AIDS Number 0060 VICE CHAIRMAN BUNDE announced the first item of business would be HB 451, "An Act relating to assistive technology devices and mobility aids for physically disabled persons." Before the committee was CSHB 451(L&C). Number 0076 JEFFREY LOGAN, Legislative Assistant to Representative Joe Green, Alaska State Legislature, presented CSHB 451(L&C) on behalf of Representative Green, prime sponsor. He explained that it establishes an express warranty for technology designed to assist physically disabled persons. Assistive technology and mobility aids for the physically disabled are not covered by "lemon laws" and consumer protection statutes in Title 45. The automobile lemon law in Chapter 45 makes no mention of wheelchairs. Similarly, the Unfair Trade Practices and Consumer Protection Act found in Chapter 50 makes no mention of assistive technology for the physically disabled. MR. LOGAN informed members that eleven states have passed such laws; two others, including Alaska, are considering doing so. He directed members' attention to a sectional description in committee packets. Number 0176 VICE CHAIRMAN BUNDE asked whether opposition was heard in previous committees. MR. LOGAN replied that in the previous two hearings in the House Labor and Commerce Standing Committee, there was no stated opposition, and the only testimony was positive. A number of people had testified, including representatives of the Statewide Independent Living Council, Access Alaska, and the Department of Health and Social Services. In addition, other individuals not associated with a group had testified in favor of the bill. Number 0235 VICE CHAIRMAN BUNDE asked whether they had heard from manufacturers of equipment for the disabled. MR. LOGAN said they had not. Number 0270 REPRESENTATIVE ERIC CROFT asked what changes were made in the House Labor and Commerce Standing Committee. MR. LOGAN answered that the first change is on page 2, line 7. That entire line was added to conform to changes on page 5, beginning at line 27, and carrying on to page 6, through line 10. Mr. Logan explained, "The Labor and Commerce Committee decided, as a matter of commercial policy, as it were, that it would be good to define more clearly what collateral costs were. In the original version of the bill, that was a rather open definition. Chairman Rokeberg in Labor and Commerce requested the language to tighten that up. In doing so, we noted that the collateral costs referred back to [AS] 45.45.620 in the bill, which was returns and refunds, but not repairs. So, that's why the language on line 7 of page 2 was added, to make sure that the collateral costs incurred by the consumer will be covered by the manufacturer for return of assistive technology for refunds or repairs." Number 0409 ROBERT BRIGGS, Staff Attorney, Disability Law Center of Alaska, came forward to testify, specifying that he represents people with disabilities on legal matters relating to their disabilities. He told members that complaints arise from time to time when someone has purchased an assistive technology device or a device for a wheelchair, for example, that doesn't work. Frequently these devices are quite expensive, and the persons involved don't have the economic means to battle a manufacturer located out of state. MR. BRIGGS said HB 451 addresses this problem in a way that he believes is good. It creates a balance in the relative economic positions of the purchaser and seller. It also provides certainty in how those kinds of disputes can be resolved. In particular, it defines how the expenses should be reimbursed when someone's wheelchair or other assistive device does not work and needs to be returned or repaired. "I think it is fair and balanced in its approach, both from the standpoint of a manufacturer and also from the standpoint of a purchaser," he added. Number 0525 MR. BRIGGS asked that the committee consider tightening up the definition of "dealer." He noted that this is a manufacturer's warranty. On page 7, lines 11 through 15, there is a definition of "manufacturer" that is fairly straightforward and clear, but it specifically does not include a dealer. On page 6, lines 22 through 23, a dealer is somewhat broadly defined as someone in the business of selling assistive technology devices or mobility aids. Mr. Briggs suggested adding the phrase, "without assembly or modification", to clarify that someone who changes or puts together a device in a way that could render the device nonconforming would fall within the manufacturer's warranty and therefore would have the obligations under this bill. Number 0585 VICE CHAIRMAN BUNDE asked whether wheelchairs, for example, arrive at the dealer assembled. MR. BRIGGS said no, they typically require assembly. Sometimes, especially for electric wheelchairs, they require custom modifications. He cited an example. Mr. Briggs then said as he reads through the definitions of "manufacturer" and "dealer," he would put the person who makes those modifications, and who selects and installs the switches, in the category of a manufacturer. MR. BRIGGS stated, "And certainly, if I were involved in a dispute between a manufacturer and a dealer, I would expect the manufacturer to say, 'If there's a problem with the switch, it's the problem of the person who put that switch on, not mine.' And under the bill, I think the original manufacturer of the chair would fit within the definition; it's less clear whether someone who makes a local modification would fit within that definition." MR. BRIGGS urged members to clarify responsibility in the bill as much as possible. He explained, "First of all, we don't want to impose extra expense of manufacturers that is unnecessary if you can make it clear. And the people involved don't have the expense to get involved in great litigation. And so, the clearer you can make the definition between 'manufacturer' and 'dealer,' the better." Number 0720 REPRESENTATIVE PORTER asked to hear the suggested wording again. MR. BRIGGS said on page 6, line 23, following the words, "mobility aids," he would add the phrase, "without assembly or modification". Number 0750 VICE CHAIRMAN BUNDE suggested that virtually eliminates dealers, because they all assemble. MR. BRIGGS replied that for some wheelchairs that is true; for other devices, he doesn't know. Number 0814 REPRESENTATIVE ETHAN BERKOWITZ pointed out that "assemble" is generic language. He has a friend who flies disabled people around, and it is necessary to break down the wheelchairs to put them in a small airplane, for example. Representative Berkowitz referred to page 7, line 11, and suggested that under this definition of "manufacturer," that friend would be assembling. MR. BRIGGS proposed that it could be tightened up a bit by saying something like, "who manufactures or assembles for first use". Number 0824 REPRESENTATIVE NORMAN ROKEBERG asked whether it would help to add "modifies" after "manufactures" on line 11, to make sure they pull in the dealer who is modifying a device. VICE CHAIRMAN BUNDE said, "Rather than change the definition of a dealer ...." REPRESENTATIVE ROKEBERG said they could do "dealer" also, but this catches the modification aspect of it. The dealer would become a manufacturer for purposes of this section, if the dealer actually modified the device, for which he should be responsible for repairs or if it was faulty. Number 0895 REPRESENTATIVE ROKEBERG made a motion to add the word "modifies" after "manufacturers" on page 7, line 11. VICE CHAIRMAN BUNDE asked Mr. Logan whether he sees any problem with that. MR. LOGAN replied, "To the extent that it is the desire of the sponsor to clarify responsibilities as to these types of costs and who pays them, I think this gets to that end." Number 0938 VICE CHAIRMAN BUNDE asked whether there was any objection to Amendment 1. There being none, Amendment 1 was adopted. VICE CHAIRMAN BUNDE asked the committee's wish regarding the dealer. REPRESENTATIVE ROKEBERG said he wouldn't object to the suggested modification if it is okay with the sponsor. VICE CHAIRMAN BUNDE clarified to Mr. Logan that they were discussing a potential amendment, to expand the definition of "dealer" to read, "means a person who is in the business of selling assistive technology devices or mobility aids without assembly or modification". MR. LOGAN told members that to the extent that the intent is to clarify who should be responsible for assuming some of these costs, this again goes to that end; he believes it would be acceptable to the sponsor. VICE CHAIRMAN BUNDE asked Representative Berkowitz whether that would remove his concern. REPRESENTATIVE BERKOWITZ said that handles it with the dealer question, but his problem was with "manufacturer." However, that solution would also work for that. Number 1038 REPRESENTATIVE BRIAN PORTER made a motion to adopt Amendment 2, to add, "without assembly or modification" after "mobility aids" on page 6, line 23. VICE CHAIRMAN BUNDE asked whether there was any objection. There being none, Amendment 2 was adopted. Number 1055 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3, on page 7, line 11, so that following "person who" that line would read: "is in the business of manufacturing, modifying or assembling". REPRESENTATIVE PORTER asked the purpose of that. VICE CHAIRMAN BUNDE explained that it is so that somebody who must disassemble and reassemble a wheelchair for a person being transported is not in "the warranty business." Number 1098 REPRESENTATIVE JEANNETTE JAMES said she would think that if the disabled person had a perfectly good, working wheelchair that was disassembled and then no longer worked, this doesn't relieve the person who did that from liability. REPRESENTATIVE BERKOWITZ replied that there would still be liability, but it wouldn't be a warranty situation. REPRESENTATIVE JAMES asked what the recourse of the disabled person would be. REPRESENTATIVE BERKOWITZ answered that it would be the same as for anybody else who suffered a tort. REPRESENTATIVE JAMES asked, "You would have to sue?" REPRESENTATIVE BERKOWITZ replied, "Well, you could do that. ...If I break something of yours, you could say I've broken it, and I'd probably offer to pay for it. ... Even with the warranty, suit is an option." Number 1162 REPRESENTATIVE JAMES said this whole bill is to make it easier for people who are disabled to get their just due, without having to go to extensive lengths. She agreed that a pilot who did this, for example, would certainly want to volunteer to pay for it. She said she didn't know that they need to fix that in here, but it seems that the person ought not to have to sue to get his payment. She concluded, "And even in a warranty position, you may still have to sue; but at least if the statute is very clear that it is authorized and/or directed, that might tend to them to not to sue, or not to have to sue." REPRESENTATIVE PORTER said he understands what Representative James is getting at, but the bill is getting at folks that sell to the disabled person. And the person that the amendment is trying to protect is not in that category; that person would have handled it as a taxi driver, pilot or friend might do. Number 1241 VICE CHAIRMAN BUNDE asked whether there was any objection to Amendment 3. There being none, Amendment 3 was adopted. Number 1275 PATRICK REINHART, Executive Director, Statewide Independent Living Council, Department of Education, testified via teleconference from Anchorage. He said the council supports the bill, and they had asked that this type of legislation be introduced a couple of months ago. They had brought the idea of this bill up primarily because of the many consumers across the state who had told them about purchasing certain pieces of assistive devices and being "ripped off" one way or another, especially from out-of-state dealers and manufacturers. Mr. Reinhart added that this really hasn't been a problem with in-state dealers, which he suggested may be why they haven't heard much from those dealers. MR. REINHART told members, "I don't think that there's going to be anybody who wouldn't be supportive of guaranteeing some warranty for devices that cost the amount of money that some of these devices do cost." He suggested this bill could save the state money in a couple of different ways, primarily in that a lot of equipment is purchased through third parties and state entities. For example, Medicaid, the Division of Vocational Rehabilitation, and the Division of Mental Health and Developmental Disabilities purchase this equipment on behalf of consumers. When it is bought by a third party, there really isn't someone to follow through when a device isn't working right, or if someone is due a refund or repair that is not being made. "So, I think this will certainly add some incentive for state entities that are working to buy consumer equipment, and helping the consumers follow through when something isn't working the way it should," he concluded. Number 1378 REPRESENTATIVE JAMES made a motion to move CSHB 451(L&C), as amended, with individual recommendations and attached zero fiscal note. VICE CHAIRMAN BUNDE asked whether there was any objection. There being none, CSHB 451(JUD) was moved from the House Judiciary Standing Committee.
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