Legislature(1997 - 1998)
03/11/1998 03:20 PM House L&C
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* first hearing in first committee of referral
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+ teleconferenced
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HB 451 - ASSISTIVE TECHNOLOGY & MOBILITY AIDS TAPE 98-29, SIDE B Number 0001 CHAIRMAN ROKEBERG announced the committee's next item of business would be HB 451, "An Act relating to assistive technology devices and mobility aids for physically disabled persons." Number 0020 JEFF LOGAN, Legislative Assistant to Representative Joseph Green, came forward to present HB 451. He summarized the sponsor statement which read: HB 451 establishes an express warranty for technology designed to assist physically disabled persons. Under the terms of the bill, if a consumer reports a nonconformity to a manufacture within a year of delivery, the manufacture must repair or replace the equipment, or offer a refund of the purchase price. 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 wheel chairs. Similarly, the Unfair Trade Practices and Consumer Protection Act, found in chapter 50, makes no mention of assistive equipment. Yet, 11 states have passed such laws, and others are considering doing so. Non-working assistive equipment can be not only inconvenient, but dangerous. Many of us have experienced the frustration of dealing with a non-responsive salesperson far from Alaska; imagine doing so without the benefit of the equipment you depend on to communicate, or get around. When people lose their mobility, or ability to communicate, they may not be aware of, or may not be able to remove themselves from, dangerous situations. Assistive technology allows the physically disabled to operate in a manner most of us take for granted. I ask for your support in enacting a law that affords basic protection to a group of consumers who already face obstacles unimagined by most of us. Number 0113 MR. LOGAN said the legislature is looking at this type of legislation because the number of people using this kind of equipment is growing, indicating this is due to the aging of the "baby boom" generation. He said it is estimated 1 in 7 Alaskans, approximately 80,000, are somehow disabled. He indicated there is currently no protection in law for these people regarding this equipment and he explained HB 451. Section 600 establishes an express warranty. Manufacturers who sell assistive technology or mobility aids directly or through a dealer must furnish a warranty for the equipment they sell, and if they do not, the equipment will be considered to have such a warranty by the state. He said warranties are often taken for granted but these consumers do not enjoy that benefit. Section 610 states if a consumer reports a nonconformity to the manufacturer within one year after first delivery, the nonconformity shall be repaired. Referring to his extensive research, Mr. Logan said there is still a great deal he does not know. He suggested the committee members ask the witnesses questions about the use and cost of this equipment, indicating one witness's assistive equipment cost over $25,000. Mr. Logan also indicated he thought the committee would find most of the consumers of this equipment treat their equipment very well because it is almost necessary to maintain their standard of living. In Section 620 of the bill, if the consumer makes a reasonable effort to get the nonconformity repaired but fails, the manufacturer must accept return of the equipment and replace it with comparable new equipment, or refund the full purchase price including finance charges, to the consumer. Mr. Logan said Section 630 states some of the return and refund procedures for this type of equipment. Number 0415 CHAIRMAN ROKEBERG commented that he had a concern about the meaning of the term "collateral costs" in Section 620. MR. LOGAN replied that could involve finance charges and other costs to the consumer, possibly concerning the manufacturer. CHAIRMAN ROKEBERG indicated the bill contains a definition of collateral costs which is too broad to be useful, and this is a concern ["Section 690. Definitions. ... (3) "collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity including the costs of obtaining an alternative assistive technology device or mobility aid;"]. Number 0462 MR. LOGAN stated this language has been successful in other states but it would be acceptable if the committee wanted to "tighten it up." Continuing with his explanation, he said Section 650 states if a consumer leases assistive equipment and the equipment is returned for a refund, that equipment cannot be leased or sold to another consumer without full disclosure of the reasons for return. Section 640 states the lease can not be enforced if a piece of equipment is returned for a nonconformity. Section 660 states consumers cannot waive the rights granted to them under legislation, even if a manufacturer offers a discount on malfunctioning equipment in return for a statement that the consumer understands this and won't return the equipment when it turns out to be nonusable. Section 670 states that nothing in the bill limits the rights or remedies available to consumers under other laws. Section 680 states that a consumer may bring a legal action to recover damages resulting from a violation of the provisions of the bill; the court shall award twice the amount of any pecuniary loss together with cost disbursements, reasonable attorney fees, and any equitable relief the court determines is appropriate to a consumer who prevails in an action. Mr. Logan said the remainder of the bill is definitions, noting some may need further refinement, as the chairman indicated. Number 0637 CHAIRMAN ROKEBERG asked why there were 3 1/2 pages of definitions and 3 1/2 pages of bill. MR. LOGAN said it was their intent to be specific. CHAIRMAN ROKEBERG asked if any of the laws in the 11 other states were shorter. Number 0662 MR. LOGAN relied this bill is very similar to most of the other laws. The definitions section was modeled after Rhode Island's legislation, and appears very similarly in Colorado's and Wisconsin's. He noted these two states recently enacted this legislation. Mr. Logan said there is definitely a concern about loopholes as these types of statutes are considered by legislatures. He indicated the practice has been to attempt to be as specific as possible to avoid such loopholes. Number 0697 CHAIRMAN ROKEBERG asked Mr. Logan to provide the committee with copies of legislation from other states. MR. LOGAN agreed to do so. Number 0706 REPRESENTATIVE HUDSON mentioned his familiarity with this issue through a neighbor's experiences. He asked how enforceable this would be on manufacturers located outside Alaska, indicating it is particularly difficult to take action when this equipment comes from out-of-state. Number 0731 MR. LOGAN said they understand it is enforceable, noting there are small East Coast states without manufacturers that have been able to enforce this. He said he can obtain more information on enforceability for the committee. REPRESENTATIVE HUDSON said he would appreciate that. Number 0770 DERRILL L. JOHNSON, Administrator and Community Services Coordinator, Developmental Disabilities Program, Division of Mental Health and Developmental Disabilities (DMHDD), Department of Health and Social Services (H&SS), came forward to testify next. He stated the department is in support HB 451's intent. The department also believes the bill is rather detailed and lengthy, but considers this to probably be the best of the three versions out. Mr. Johnson indicated any changes making the bill easier to understand would be acceptable. He said his division buys a lot of medical equipment, and he noted he deals with many of these issues helping families get problems resolved when equipment malfunctions or does not meet advertised claims. Number 0825 REPRESENTATIVE TOM BRICE referred to the definition of collateral costs. He asked Mr. Johnson how may people in rural Alaska, for example, are using assistive technology devices, from his experience at DMHDD. MR. JOHNSON replied he couldn't estimate off the top of his head but indicated it is a substantial number. He said they provide services to about 2,300 families statewide and estimated that well over 30 percent of those families use some type of assistive technology. Number 0890 REPRESENTATIVE HUDSON questioned whether this kind of legislation would actually improve the access for Medicaid approval and the acquisition of many of these assistive technology devices. Number 0920 MR. JOHNSON was not sure he could address that question properly but said it would seem reasonable that the department would be more inclined to "broaden the scope of equipment" if it had better assurances about the equipment it was purchasing. He indicated the department, when purchasing equipment for individual families, tries to steer families toward those types of vendors the department has had good past experiences with and who stand behind the equipment they sell. Number 0959 REPRESENTATIVE BRICE asked who paid to fix or replace a piece of assistive equipment purchased by the department for an individual if that equipment malfunctions. He gave the example of a wheelchair. MR. JOHNSON replied that generally, if it was a consumer they were working with, they would assist the family in working through that process with the manufacturer. He said it would probably save state dollars, staff time and department dollars if they had better access for equipment repair. He also indicated this would save the individual consumers the frustration of being without their means of communication or movement. Number 1044 MILLIE RYAN, Health Planner, Governor's Council on Disabilities and Special Education, Department of Health and Social Services, came forward to testify next. She stated the council recently completed a three-year process developing a state plan. During that planning process they talked to a lot of different people in a variety of communities statewide; she said this issue came up frequently and stated the council is very supportive of a bill like this. Number 1094 REPRESENTATIVE BRICE stated a conflict, noting he is a member of the council. Number 1125 KEN DEAN, Independent Living Specialist, Southeast Assisted Independent Living Incorporated (SAIL Inc.), came forward to testify next. He noted he is also the director of the multiple sclerosis (MS) society and the MS Douglas Lions loan closet, which he said loans out a lot of equipment. He said freight to return equipment to the manufacture was one of the collateral costs mentioned earlier, relating a situation which he said began in 1990. He received the wheelchair in question in January of 1991 and said it had broken down by that March. He noted that wheelchair sits to this day in his living room and offered to give it to any of the committee members who wanted to make a planter out of it, stating, "It's an $8,500 wheelchair that is absolutely dangerous." He said the wheelchair pulls to the right and once dumped him off the curb into the street. An attorney he was working with wrote a "letter of demand" to Redman Wheelchairs; Mr. Dean said the attorney was told by Redman Wheelchairs' attorney, "'You don't have a lemon law in your state; try to enforce it.'" Mr. Dean referred to his current wheelchair which cost $27,500, noting the only differences between it and most other electric wheelchairs are that the feet can be raised independently and the back can be reclined independently. He said it is exactly like the one Duane French [Director, Division of Vocational Rehabilitation, Department of Education] uses except for those features. Mr. Dean said the manufacturer of his current chair, Everest and Jennings, stands behind its products but the reclining back and the leg lift parts were built by Faulken Enterprises (ph) of Colorado which does not honor its warranties. He indicated the footrests had malfunctioned at one point and Everest and Jennings had paid another contractor to fix them because Faulken Enterprises (ph) said the wheelchair was too far away from Colorado and the company just couldn't deal with it. Number 1286 CHAIRMAN ROKEBERG asked how long he had had this chair. MR. DEAN said since 1993. CHAIRMAN ROKEBERG noted the wheelchair was about five years old, and he asked what a wheelchair's normal expected life was. MR. DEAN said Medicare says wheelchairs should be replaced every seven years, but doesn't cover replacement at seven-year periods; it generally allows one wheelchair per lifetime. He indicated the aging process of a wheelchair is noticeable and that some of these things can be dangerous for the person using the equipment, noting he thought that was the point Mr. Choate, the attorney he had worked with, was trying to make to Redman Wheelchairs. He referred to written materials he provided the committee. Number 1356 REPRESENTATIVE BRICE asked Mr. Dean how he gained access to his current wheelchair. MR. DEAN replied he went to a dealer in Juneau. REPRESENTATIVE BRICE asked how many dealers there were in Juneau. MR. DEAN replied there was currently one, the other one had passed away. Number 1385 REPRESENTATIVE BRICE asked if Mr. Dean had a broad understanding about access to dealers across the state, asking how many dealers he knew of in Alaska who might be able to provide this type of equipment. MR. DEAN said he knew of one other, Geneva Woods (ph) in Anchorage. From his time with the MS society, he said he knows there are a lot of people with MS outside of Anchorage, Fairbanks and Juneau who use wheelchairs that are breaking down all the time. He said these people literally just stay in their houses until another wheelchair is flown out to them from the Lions' loan closet. REPRESENTATIVE BRICE confirmed, then, that there isn't a great deal competition within that market to provide greater access. Number 1441 CHAIRMAN ROKEBERG mentioned the collateral cost issue, noting he has some concerns about it, and said he understands the freight and mailing costs could be very high. MR. DEAN stated it cost $481 dollars each way to ship his previous wheelchair to Tucson, Arizona, and back to Juneau. It had to be shipped back to Tucson a second time for the same cost; he noted Redman Wheelchairs paid for the shipping back to Juneau that time. Number 1475 CHAIRMAN ROKEBERG indicated there was a problem with the term collateral costs because was so broad and he asked Mr. Dean what else he felt needed to be included in that category for recovery. Number 1489 MR. DEAN confirmed that telephone calls and "all of that stuff" should be included, noting it was itemized out in the materials he was providing to the committee. He indicated it was important to provide for replacement rental. He said he also had to convince Redman Wheelchairs all the problems stemmed from the wheelchair, not his weight, although that is what the company told him. Mr. Dean related his father went down to purchase the wheelchair, specifically asking if it could carry someone weighing over 200 pounds but less than 250. His father was shown one wheelchair by the salesman and assured this was true, but Mr. Dean said a different wheelchair was shipped and it had been an ongoing argument for eight years. Number 1552 CHAIRMAN ROKEBERG confirmed Mr. Dean felt a replacement rental for nonconforming equipment should be part of collateral costs. MR. DEAN answered in the affirmative, noting how important the equipment was to his mobility. Number 1582 CHAIRMAN ROKEBERG asked if there were any further questions of Mr. Dean and thanked him for his testimony and additional information. MR. DEAN responded that this bill was very important to him. Number 1597 CHAIRMAN ROKEBERG commented that he was going to become a cosponsor of HB 451, stating there were a few technical issues the committee would correct and then move the bill on. Chairman Rokeberg indicated the work done in this committee would help the legislation with its next committee of referral, the House Judiciary Standing Committee. Number 1649 SHELLEY GREENE, Direct Service Supervisor, Access Alaska Fairbanks, came forward to testify next. She stated she was there representing Access Alaska Fairbanks, an independent living center which provides services to people in the northern region who experience disabilities. Ms. Greene said she was testifying in support of HB 451 basically as a service provider but noted the committee could see she, too, experiences disability [Ms. Greene walks with a crutch and has MS]. She knows from personal experience that she would not be able to get to work to provide for her family without adaptive equipment. She would certainly like, for herself and the consumers they serve through Access Alaska Fairbanks, to be assured of warranties and the likelihood of replacement in the event that their equipment should break. She said they receive about 1,000 information and referral calls per year, noting many calls are about servicing equipment and many of these concern advocacy in relation to getting equipment serviced. Referring to earlier testimony, she reiterated it is emotionally difficult to lose a piece of adaptive equipment and difficult to deal with in many other ways. As a service provider offering advocacy, Access Alaska Fairbanks finds it spends a lot time helping people with deal with the issue of settlement of equipment breakdown. She mentioned earlier information relating that one in seven Alaskans potentially faces a disability. Out of those 1 in 7, she said surveys they have done show that 2/3 of those people want to work. She said in order for these people to work, their equipment must be acceptable, in good repair and warrantied. Number 1766 REPRESENTATIVE BRICE asked how accessible assistive technology is in the Interior, in Fairbanks. He asked how many dealers and how many avenues of access people have for wheelchairs, for example. Number 1792 MS. GREENE said there are probably about three providers in the Interior: the hospital, Geneva Woods (ph) and Apria Medical (ph). She indicated most of the rest is done by mail, both through other parts of the state and outside Alaska. Number 1812 REPRESENTATIVE BRICE asked if Access Alaska Fairbanks helped its clients through the process of obtaining assistive equipment. MS. GREENE answered in the affirmative. Access Alaska Fairbanks helps with research for the most part, but not necessarily with the purchase of these items although it may assist in finding a resource to help pay. Number 1831 CHAIRMAN ROKEBERG referred to the list of items qualifying as assistive technology devices which included computer equipment, (indisc.) devices, artificial voice output devices, optical scanners, et cetera. He asked if she or other people from Access Alaska Fairbanks have ever gotten involved with any of that "high tech" equipment. Number 1851 MS. GREENE answered in the affirmative, noting when they feel out of their element they always seek the advice of more skilled individuals or organizations. She said they use scanning devices and other equipment in their office, both for employee use and for informational use by community members. Number 1882 CHAIRMAN ROKEBERG stated it is the committee's responsibility to make sure business works and services are provided for the people of Alaska in all sectors. He commented he had a somewhat difficult question and he apologized if he was putting her on the spot. He asked what would keep someone from being an overly picky, problem consumer in this situation. He indicated he was asking if they were going too far here, or if it was something human nature would take care of. Number 1944 MS. GREENE said she thought human nature would take care of it herself, noting there would always be the occasional person who can never be satisfied. However, as a service provider at Access Alaska Fairbanks, she said they provide advocacy as one of their services and that is something they would help a person sort through so that, hopefully, it wouldn't become problematic either for the consumer or the businessperson. Number 1996 PATRICK REINHART, Executive Director, Statewide Independent Living Council (SILC), Department of Education, came forward to testify next. He said the SILC is made up of a majority of people with disabilities from around the state; its primary responsibility is the development of a state plan for independent living and the implementation of that plan with its partner centers for independent living around the state like Access Alaska in Fairbanks. He said they are all working toward the right of self- determination for people with disabilities and the ability for these people to hopefully live independent of institutional walls in the communities of their choice. Referring to Ms. Ryan's previous comments, he said when they collect testimony from around the state, this issue of the ability to get assistive technology equipment and have it repaired when appropriate has come up quite a bit. He said, therefore, SILC is very much in support of HB 451. Mr. Reinhart noted the council had, in fact, requested the bill's introduction. He said this had been especially through the efforts of one of the council members, Jeri Best (ph), noting the committee had probably been receiving e-mail messages from Ms. Best for a while. Mr. Reinhart thanked Representatives Green and Davies for their efforts. Number 2058 MR. REINHART said much of this equipment is purchased through third-party vendors like state entities such as DMHDD, as Mr. Johnson mentioned; or the Division of Vocational Rehabilitation. He said Medicaid also purchases equipment for individuals, noting the programs he has mentioned are all state and joint federal-state programs. He indicated that possibly the motivation to pursue fixing broken equipment may not be there all the time, especially if there is the possibility another piece of equipment might be purchased for a consumer by another state entity or group. Mr. Reinhart said he thinks this bill will provide motivation and support for agencies purchasing equipment for people with disabilities as well as for those people themselves, noting it might eventually save the state some money. He noted the definitions of assistive technology and communication devices had been mentioned; he said Mr. Johnson told him some of these devices run from $3,000 to $40,000. Mr. Reinhart stated this brings up an issue that is not in HB 451 but that the committee might consider: maybe a warranty period of more than one year could be considered for pieces of equipment meeting a threshold cost level. He commented on the cost of Mr. Dean's wheelchair and suggested longer warranties for equipment costing, perhaps, $10,000 or more, indicating a one-year warranty seemed inadequate when dealing with equipment costing $20,000 to $30,000. Additionally, Mr. Reinhart pointed out that this really is not a problem with the in-state businesses and dealers who are reputable and working on behalf of people with disabilities. He indicated it is the best interest of these businesses to provide good service for the equipment they sell and that a lot of the problems have been with out-of-state purchases. He commented this might "level the playing field" for those in-state dealers competing with "cutthroat" out-of-state operators. Mr. Reinhart said he thought, for that reason, there would be a lot of support from the in-state dealers. Number 2217 CHAIRMAN ROKEBERG asked if he had any comments on the collateral cost issue. MR. REINHART referred to the items Mr. Dean mentioned. He said he has heard those before, commenting on the shipping costs and rental of replacement equipment. He stated it could be further defined to actually list those types of things, noting this might add to the bill's length. Mr. Reinhart indicated he understood the concern about possible misconstruing of the term to apply to unrelated items, but said he thinks "collateral" itself means that it is related. Number 2246 CHAIRMAN ROKEBERG said his desire to shorten the bill might be more form than substance. Chairman Rokeberg asked Mr. Logan about use of the term "express warranty" indicating he was troubled by the wording of the sentence on page 1, lines 11 through 14, "If a manufacturer fails to furnish an express warranty as required by this section, the assistive technology device or mobility aid shall be covered by the express warranty as if the manufacturer had furnished an express warranty as required by this section." He asked Mr. Logan to check with the drafter, commenting it might be an implied warranty but he questioned whether it would have the strength. Additionally, Chairman Rokeberg referred to Mr. Dean's letter and commented that the definition of "collateral costs" would have to be lengthened to cover these items. Chairman Rokeberg also noted the amortization schedule, page 2, Section 620(1)(B), based on 1,825 days (five years) was not clear. He asked if it was lease vis- -vis a purchase. Number 2394 MR. LOGAN replied that it was simply an attempt to construct a formula to determine the remaining value of a piece of equipment. He said it hadn't seemed complicated to him before, but now that the question has been asked he sees that and thinks they could come up with a simpler formula. CHAIRMAN ROKEBERG said subsection (1) appeared to refer to purchase and that subsection (2) might apply to leasing. MR. LOGAN said that was correct. CHAIRMAN ROKEBERG noted he didn't understand why there had to be a differentiation. He also commented on the "reasonable allowance for use" in the amortization, asking Mr. Logan to explain that for the committee. Number 2442 MR. LOGAN said, again, they were trying to determine the remaining value of the piece of equipment. He indicated this would allow the manufacturer to deduct, in essence, some depreciation for a piece of equipment that had been used by a consumer for some time before malfunctioning and being returned to the manufacturer. Mr. Logan said that is the intent behind "less a reasonable allowance for use". TAPE 98-30, SIDE A Number 0001 MR. LOGAN indicated they would work with the committee staff to present an acceptable committee substitute [BEGINNING OF TESTIMONY CUT OFF BY TAPE CHANGE]. CHAIRMAN ROKEBERG stated they looked forward to moving HB 451. The legislation was held.
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