Substitute Senate Bill No. 1112
Substitute Senate Bill No. 1112
PUBLIC ACT NO. 97-100
AN ACT CONCERNING THE SECURITY OF ASSISTIVE
TECHNOLOGY DEVICES.
Be it enacted by the Senate and House of
Representatives in General Assembly convened:
Section 1. (NEW) As used in this act, unless
the context otherwise requires:
(1) "Assistive technology device" means any
device sold, leased or transferred in this state
or to a consumer in this state on or after January
1, 1998, that is used or designed to be used to
enable or enhance the ability of a person with a
disability to communicate, see, hear or achieve
mobility, including, but not limited to, (A)
manual or motor-driven wheelchairs and other
assistive devices that enhance a mobility impaired
person's ability to achieve mobility, including
seating and positioning aids, (B) telephone
communication devices for the hearing impaired and
other assistive listening devices that enhance a
hearing impaired person's ability to hear or
communicate, but not including hearing aids, (C)
voice synthesized computer modules, optical
scanners, talking software, braille printers and
other assistive devices that enhance a sight
impaired person's ability to see or communicate,
(D) computer equipment with voice output,
artificial larynges, voice amplification devices
and other alternative and augmentative
communication devices, (E) any system of such
devices that, as a whole, is itself such a device,
(F) any component product of such devices that is
itself ordinarily such a device, and (G) any such
device used primarily by a dealer, lessor or
manufacturer for the purpose of demonstration to
the public or to prospective purchasers or
lessees. "Assistive technology device" does not
include batteries used in or nonessential
accessories to any such devices.
(2) "Collateral costs" means expenses incurred
by a consumer in connection with the repair of a
nonconformity in an assistive technology device,
including, but not limited to, the cost of an
alternative assistive technology device.
(3) "Consumer" means any person (A) who
purchases an assistive technology device from a
dealer or manufacturer for purposes other than for
resale, (B) to whom an assistive technology device
is transferred if such transfer occurs before the
expiration of an express warranty applicable to
such assistive technology device, (C) who may
enforce an express warranty applicable to an
assistive technology device, or (D) who leases an
assistive technology device from a lessor under a
written lease.
(4) "Dealer" means any person engaged in the
business of selling assistive technology devices
to consumers.
(5) "Early termination cost" means an expense
or obligation that a lessor incurs as a result of
both the termination of a written lease for an
assistive technology device before the expiration
of the lease term and the return of an assistive
technology device to a manufacturer under
subsection (b) of section 2 of this act, including
any penalty for prepayment required under any
financing arrangement.
(6) "Early termination savings" means an
expense or obligation that a lessor avoids as a
result of both the termination of a written lease
for an assistive technology device before the
expiration of the lease term and the return of an
assistive technology device to a manufacturer
under subsection (b) of section 2 of this act,
including any interest charge that the lessor
would have paid to finance the assistive
technology device or, if not so financed by the
lessor, the difference between the total amount
for which the lease obligates the consumer during
the period of the lease term remaining after the
early termination and the present value of the
consumer's remaining obligation under the lease as
of the date of the early termination.
(7) "Express warranty" means an express
warranty under section 42a-2-313 of the general
statutes that is applicable to an assistive
technology device.
(8) "Lessor" means any person who leases an
assistive technology device to consumers or who
possesses a lessor's rights under a written lease
for an assistive technology device.
(9) "Manufacturer" means any person who
manufactures or assembles assistive technology
devices, and any agent of such person, including
importers, distributors, factory branches,
distributor branches and warrantors of such
person's assistive technology devices, but does
not include a dealer, a lessor or any person whose
activity consists solely of referring consumers to
a dealer, a lessor or any person described in this
subdivision.
(10) "Nonconformity" means a condition,
malfunction or defect that substantially impairs
the use, value or safety of an assistive
technology device or that is covered by an express
warranty applicable to an assistive technology
device, but does not include a condition or defect
that is the result of abuse, neglect or
unauthorized modification or alteration of the
assistive technology device.
(11) "Person with a disability" has the same
meaning as set forth in section 46a-8 of the
general statutes.
Sec. 2. (NEW) (a) If a nonconformity in an
assistive technology device occurs or exists
during the term of an express warranty applicable
to the assistive technology device or within two
years of the delivery of the assistive technology
device to a consumer, whichever is longer, and the
consumer reports the nonconformity to the
manufacturer of the assistive technology device or
to any of such manufacturer's authorized dealers
or lessors and makes the assistive technology
device available for repair during such period,
the manufacturer shall repair the nonconformity or
cause the nonconformity to be repaired in
accordance with this section. If the manufacturer
authorizes a dealer or lessor to make any such
repair, the manufacturer shall reimburse the
dealer or lessor for the cost of such repair. The
manufacturer shall respond to a dealer's or
lessor's request for authorization to repair an
assistive technology device not later than the end
of the business day following the business day on
which such request was made.
(b) After an assistive technology device is
made available for repair under subsection (a) of
this section, the manufacturer shall reimburse the
consumer for the reasonable per day cost incurred
by the consumer for the use of an equivalent
assistive technology device during the repair
period if: (1) The repair period exceeds ten
business days, including the business day on which
the assistive technology device is made available
to the manufacturer or dealer for repair; or (2)
the nonconformity is the same as a nonconformity
for which the assistive technology device has been
made available for repair under subsection (a) of
this section on at least two previous occasions.
(c) If an assistive technology device is made
available to a dealer or lessor for repair by the
manufacturer under subsection (a) of this section
and the dealer or lessor fails to forward the
assistive technology device to the manufacturer in
time for the manufacturer to make the repair
within ten business days after the business day on
which the assistive technology device was made
available to the dealer or lessor, the dealer or
lessor shall reimburse the manufacturer for any
amount actually paid to the consumer under
subsection (b) of this section.
(d) If an assistive technology device is made
available for repair under subsection (a) of this
section at least three times for the same
nonconformity during the term of an express
warranty applicable to the assistive technology
device or within two years of the delivery of the
assistive technology device to a consumer,
whichever is longer, or is out of service due to
the same nonconformity for not less than thirty
consecutive or nonconsecutive calendar days during
such period, and such nonconformity is not
repaired:
(1) If such assistive technology device was
purchased, the manufacturer shall, as directed by
the consumer, either (A) accept return of the
assistive technology device, replace such returned
assistive technology device with an alternative
assistive technology device of comparable quality,
size and function, and refund any collateral costs
paid by the consumer or by a holder of a perfected
security interest in the returned assistive
technology device; or (B) accept return of the
assistive technology device and refund to the
consumer or to the holder of a perfected security
interest in the returned assistive technology
device, or both in proportions as may be
applicable, an amount not exceeding the full
purchase price plus any finance charge, sales tax,
shipping cost and collateral costs paid by the
consumer or by such holder, minus a reasonable
allowance for use. Such reasonable allowance for
use shall not exceed an amount obtained by
multiplying the full purchase price of the
returned assistive technology device by a
fraction, the denominator of which is 1,825 and
the numerator of which is the number of days that
the returned assistive technology device was used
before the consumer first reported the
nonconformity under subsection (a) of this
section.
(2) If such assistive technology device was
leased, the manufacturer shall, as directed by the
lessor in accordance with the election of remedies
by the consumer, either (A) accept return of the
assistive technology device, replace such returned
assistive technology device with an alternative
assistive technology device of comparable quality,
size and function which shall be furnished by the
lessor to the consumer as provided in subsection
(b) of section 3 of this act, and refund any
collateral costs paid by the lessor or by a holder
of a perfected security interest in the returned
assistive technology device; or (B) accept return
of the assistive technology device, refund to the
lessor or to the holder of a perfected security
interest in the returned assistive technology
device, or both in proportions as may be
applicable, the current value of the lease, and
reimburse the lessor for, and the lessor shall
refund to the consumer as provided in subsection
(b) of section 3 of this act, the amount paid by
the consumer under the lease as of the date of
such return plus any collateral costs, minus a
reasonable allowance for use. For purposes of this
subdivision, the current value of such lease
equals the total amount for which such lease
obligates the consumer during the period of the
lease term remaining after its early termination
under this subdivision plus the lessor's early
termination costs and the value of the assistive
technology device at the expiration of the lease
term, if such value is set forth in the lease,
minus the lessor's early termination savings. Such
reasonable allowance for use shall not exceed an
amount obtained by multiplying the total amount
for which such 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 returned assistive technology device was used
before the consumer first reported the
nonconformity under subsection (a) of this
section.
Sec. 3. (NEW) (a) Any consumer who elects a
remedy available under subdivision (1) of
subsection (d) of section 2 of this act shall
first offer to transfer the assistive technology
device to the manufacturer. Not later than thirty
business days after the date such offer is made,
the manufacturer shall provide the consumer with
the refund or the alternative assistive technology
device required by said subdivision. Upon receipt
of such refund or alternative assistive technology
device, the consumer shall, at the manufacturer's
expense, return the assistive technology device
having the nonconformity to the manufacturer or,
if directed by the manufacturer, to a dealer,
together with any endorsements necessary to make
such transfer.
(b) Any consumer who elects a remedy available
under subdivision (2) of subsection (d) of section
2 of this act shall first offer to return the
assistive technology device to the lessor. Not
later than thirty business days after the date
such offer is made, the lessor shall provide the
consumer with the refund or the alternative
assistive technology device required by said
subdivision. Upon receipt of such refund or
alternative assistive technology device, the
consumer shall return the assistive technology
device having the nonconformity to the lessor at
the lessor's expense. Upon such return, the lessor
shall offer to return such assistive technology
device to the manufacturer. Not later than thirty
business days after the date such offer is made by
the lessor, the manufacturer shall reimburse the
lessor for any such refund made to the consumer
plus any expenses incurred by the lessor in the
return of such assistive technology device by the
consumer. Upon receipt of such reimbursement, the
lessor shall, if directed by the manufacturer and
at the manufacturer's expense, return the
assistive technology device having the
nonconformity to the manufacturer, together with
any endorsements necessary to make such transfer.
Sec. 4. (NEW) No assistive technology device
that is returned by a consumer in this state under
sections 2 and 3 of this act, or by a consumer in
another state under a similar law of such state,
may be sold, leased or offered for sale or lease
in this state on or after January 1, 1998, unless
full disclosure of the reasons for such return is
made to any prospective consumer who may purchase,
lease or receive transfer of such assistive
technology device.
Sec. 5. (NEW) The Commissioner of Consumer
Protection, in consultation with the director of
the Office of Protection and Advocacy for Persons
with Disabilities, may adopt regulations, in
accordance with chapter 54 of the general
statutes, to carry out the provisions of sections
1 to 4, inclusive, of this act. Such regulations
may establish an alternative dispute resolution
program to investigate and adjudicate disputes
arising under sections 1 to 4, inclusive, of this
act.
Sec. 6. (NEW) In addition to any other remedy
available under the laws of this state, a consumer
may bring a civil action against a manufacturer,
dealer or lessor of an assistive technology device
based on an alleged violation of the provisions of
this act. If the court determines that such
manufacturer, dealer or lessor violated any
provision of this act, the court shall award the
consumer the amount of actual damages caused by
such violation and may, in its discretion, award
to the consumer costs and reasonable attorney's
fees.
Sec. 7. (NEW) (a) Nothing in this act shall in
any way limit the rights or remedies that are
otherwise available to a consumer under any other
law.
(b) No act or agreement of a consumer shall
constitute a valid waiver of any of the provisions
of this act.
Approved June 6, 1997