HB3602 103RD GENERAL ASSEMBLY

LRB103 28528 SPS 54909 b

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.

A BILL FOR

AN ACT concerning business.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Powered Wheelchair Right to Repair Act.

Section 5. Definitions. As used in this Act:

"Authorized repair provider" means an individual or business who has an arrangement with the original equipment manufacturer under which the original equipment manufacturer grants to the individual or business a license to use a trade name, service mark, or other proprietary identifier for the purposes of offering the services of diagnosis, maintenance, or repair of a powered wheelchair under the name of the original equipment manufacturer, or other arrangement with the original equipment manufacturer to offer such services on behalf of the original equipment manufacturer. An original equipment manufacturer who offers the services of diagnosis, maintenance, or repair of its own powered wheelchair, and who does not have an arrangement with an unaffiliated individual or business, shall be considered an authorized repair provider with respect to powered wheelchairs.

"Documentation" means any manual, diagram, reporting output, service code description, schematic diagram, security codes, passwords, or other guidance or information used in effecting the services of diagnosis, maintenance, or repair of a powered wheelchair.

"Fair and reasonable terms" means making available parts, tools, or documentation as follows:

(1) that documentation is made available by the original equipment manufacturer at no charge, except that, when the documentation is requested in physical printed form, a charge may be included for the reasonable, actual costs of preparing and sending the copy;

(2) that tools are made available by the original equipment manufacturer at no charge and without requiring authorization or internet access for use or operation of the tool, or imposing impediments to access or use of the tools to diagnose, maintain, or repair and enable full functionality of digital electronic equipment, or in a manner that impairs the efficient and cost-effective performance of any such diagnosis, maintenance, or repair, except that, when the tool is requested in physical form, a charge may be included for the reasonable, actual costs of preparing and sending the tool; and

(3) that parts are made available by the original equipment manufacturer, either directly or through an authorized repair provider, to independents repair providers and owners at costs and terms that are equivalent to the most favorable costs and terms under which an original equipment manufacturer offers the parts to an authorized repair provider and that:

(A) accounts for any discount, rebate, convenient and timely means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive and preference the original manufacturer offers to an authorized repair provider, or any additional cost, burden, or impediment the original equipment manufacturer imposes on an owner or independent repair provider;

(B) is not conditioned on or imposing a substantial obligation or restriction that is not reasonably necessary for enabling the owner or independent repair provider to engage in the diagnosis, maintenance, or repair of equipment made by or on behalf of the original equipment manufacturer; and

(C) is not conditioned on an arrangement with the original equipment manufacturer.

"Independent repair provider" means an individual or business operating in this State that is unaffiliated with an original equipment manufacturer that is engaged in the services of diagnosis, maintenance, or repair of powered wheelchairs.

"Original equipment manufacturer" means a business engaged in the business of selling, leasing, or otherwise supplying new powered wheelchairs manufactured by, or on behalf of, itself, to any individual or business.

"Owner" means an individual or business who owns or leases a powered wheelchair purchased or used in this State.

"Part" means any replacement part, either new or used, made available by an original equipment manufacturer for purposes of effecting the services of maintenance or repair of a powered wheelchair manufactured by or on behalf of, sold, or otherwise supplied by the original equipment manufacturer.

"Powered wheelchair" means a motorized wheeled device designed for use by a person with a physical disability.

"Tools" means any software program, hardware implement, or other apparatus used for diagnosis, maintenance, or repair of a powered wheelchair, including software or other mechanisms that provision, program, or pair a new part, calibrate functionality, or perform any other function required to bring the product back to fully functional condition, including any updates.

"Trade secret" has the meaning given to that term in subsection (d) of Section 2 of the Illinois Trade Secrets Act.

Section 10. Requirements.

(a) For powered wheelchairs and parts for powered wheelchairs that are sold or used in this State, an original equipment manufacturer shall make available to any independent repair provider and owner of a powered wheelchair manufactured by on behalf of, or sold by such original equipment manufacturer, on fair and reasonable terms, any documentation, parts, and tools, required for the diagnosis, maintenance, or repair of such a powered wheelchair and parts for the powered wheelchair, inclusive of any updates to information. The documentation parts and tools shall be made available either directly by the original equipment manufacturer or via an authorized repair provider.

(b) For equipment that contains an electronic security lock or other security-related function, the original equipment manufacturer shall make available to any owner and independent repair provider, on fair and reasonable terms, any special documentation, tools, and parts needed to access and reset the lock or function when disabled in the course of diagnosis, maintenance, or repair of the powered wheelchair. The documentation, tools, and parts may be made available through appropriate secure release systems.

Section 15. Enforcement by Attorney General. A violation of any of the provisions of this Act is an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. All remedies, penalties, and authority granted to the Attorney General by that Act shall be available to him or her for the enforcement of this Act.

Section 20. Limitations.

(a) Nothing in this Act shall require an original equipment manufacturer to divulge any trade secret to any owner or independent service provider.

(b) Nothing in this Act shall to alter the terms of any arrangement in force between an authorized repair provider and an original equipment manufacturer, including, but not limited to, the performance or provision of warranty or recall repair work by an authorized repair provider on behalf of an original equipment manufacturer and pursuant to such arrangement, except that any provision in the terms that purports to waive, avoid, restrict or limit the original equipment manufacturer's obligations to comply with this Act shall be void and unenforceable.

(c) No original equipment manufacturer or authorized repair provider shall be liable for any damage or injury caused to any powered wheelchair by an independent repair provider or owner which occurs during the course of repair, diagnosis, or maintenance.

Section 25. Applicability. This Act applies with respect to powered wheelchairs sold or in use on or after the effective date of this Act.

Section 90. The Consumer Fraud and Deceptive Business Practices Act is amended by adding Section 2BBBB as follows:

(815 ILCS 505/2BBBB new)

Sec. 2BBBB. Violations of the Powered Wheelchair Right to Repair Act. A person who violates the Powered Wheelchair Right to Repair Act commits an unlawful practice within the meaning of this Act.

Section 99. Effective date. This Act takes effect January 1, 2024.