Full Text of SB0101 94th General Assembly
SB0101 94TH GENERAL ASSEMBLY
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94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 SB0101
Introduced 1/26/2005, by Sen. Miguel del Valle SYNOPSIS AS INTRODUCED: |
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Creates the Assistive Technology Protection Act. Requires a physical evaluation of a consumer by a health care professional and a technology assessment by a qualified rehabilitation professional before an assistive device is sold or leased to the consumer. Provides that a manufacturer
who sells an assistive device shall furnish the consumer with an express
warranty that the assistive device will be free from any condition or defect
that substantially impairs the value of the assistive device to the consumer.
Provides that the consumer is entitled to a refund from the manufacturer if the
manufacturer fails to repair the assistive device. Establishes procedures for
receiving a refund. Prohibits the resale or lease of an assistive device
returned by a consumer without full disclosure of the reasons for the return.
Provides for
arbitration of disputes under the Act, under rules adopted by the Attorney General. Requires the Attorney General to prepare a written statement of a consumer's rights under the Act and to make copies of the statement available to assistive device manufacturers, dealers, and lessors. Provides that a consumer's purported waiver of any of his or her rights under the Act is void. Authorizes the Attorney General to impose civil penalties for violations of the Act, and provides for damages caused by a violation of the Act.
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A BILL FOR
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SB0101 |
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LRB094 04164 DRJ 36053 b |
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| AN ACT to create the Assistive Technology Protection Act.
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| Be it enacted by the People of the State of Illinois, | 3 |
| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the | 5 |
| Assistive Technology
Protection Act.
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| Section 5. Definitions. In this Act:
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| "Assistive device" means any device, including a | 8 |
| demonstrator, that a
consumer purchases, leases, or accepts | 9 |
| transfer of in this State that is used
for a major life | 10 |
| activity, which includes, but is not limited to, manual
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| wheelchairs, motorized wheelchairs, motorized scooters, and | 12 |
| other aids that
enhance the mobility of an individual; hearing | 13 |
| aids, telephone communication
devices for the deaf (TTY), | 14 |
| assistive listening devices, and other aids that
enhance an | 15 |
| individual's ability to hear; voice synthesized computer | 16 |
| modules,
optical scanners, talking software, braille printers, | 17 |
| and any other devices
that enhance a sight impaired | 18 |
| individual's ability to communicate; and any
other assistive | 19 |
| device that enables a person with a disability to communicate,
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| see, hear, or maneuver.
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| "Assistive device dealer" means a person who is in the | 22 |
| business of selling
assistive devices.
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| "Assistive device lessor" means a person who leases an | 24 |
| assistive device to a
consumer or who holds the lessor's rights | 25 |
| under a written lease.
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| "Collateral cost" means expenses incurred by a consumer in | 27 |
| connection with
the repair of a nonconformity, including the | 28 |
| cost of obtaining an alternative
assistive device.
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| "Consumer" means any of the following:
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| (1) The purchaser of an assistive device, if the device | 31 |
| was purchased from
an assistive device dealer or | 32 |
| manufacturer for purposes other than resale.
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LRB094 04164 DRJ 36053 b |
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| (2) A person to whom an assistive device is transferred | 2 |
| for purposes other
than resale, if the transfer occurs | 3 |
| before the expiration of an express
warranty
applicable to | 4 |
| the assistive device.
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| (3) A person who may enforce an express warranty | 6 |
| applicable to an assistance device.
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| (4) A person who leases an assistive device from an | 8 |
| assistive device lessor
under a written lease.
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| "Demonstrator" means an assistive device used primarily | 10 |
| for the purpose of
demonstration to the public.
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| "Early termination cost" means any expense or obligation | 12 |
| that an assistive
device lessor incurs as a result of both the | 13 |
| termination of a written lease
before the termination date set | 14 |
| forth in that lease and the return of an
assistive device to a | 15 |
| manufacturer under this Act. "Early termination cost"
includes | 16 |
| a penalty for prepayment under a finance arrangement.
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| "Early termination saving" means any expense or obligation | 18 |
| that an assistive
device lessor avoids as a result of both the | 19 |
| termination of a written lease
before the termination date set | 20 |
| forth in that lease and the return of an
assistive device to a | 21 |
| manufacturer under this Act. "Early termination saving"
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| includes an interest charge that the assistive device lessor | 23 |
| would have paid to
finance the assistive device or, if the | 24 |
| assistive device lessor does not
finance the assistive device, | 25 |
| the difference between the total amount for which
the lease | 26 |
| obligates the consumer during the period of the lease remaining | 27 |
| after
the early termination and the present value of that | 28 |
| amount at the date of the
early termination.
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| "Manufacturer" means a person who manufactures or | 30 |
| assembles assistive devices
and agents of that person, | 31 |
| including any importer, distributor, factory
branch, | 32 |
| distributor branch, and warrantors of the manufacturer's | 33 |
| assistive
device, but does not include an assistive device | 34 |
| dealer.
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| "Nonconformity" means a condition or defect that | 36 |
| substantially impairs the
use, value, or safety of an assistive |
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LRB094 04164 DRJ 36053 b |
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| device and that is covered by an express
warranty applicable to | 2 |
| the assistive device or to a component of the assistive
device. | 3 |
| "Nonconformity" does not include a condition or defect that is | 4 |
| the result of abuse,
neglect, or unauthorized modification or | 5 |
| alternation of the assistive device by
a consumer.
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| "Reasonable attempt to repair" means at least 3 attempts by | 7 |
| a manufacturer, an assistive device lessor, or a manufacturer's | 8 |
| authorized assistive device dealer, or any combination of them, | 9 |
| to repair an assistive device.
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| Section 10. Physical evaluation and technology assessment. | 11 |
| (a) In this Section:
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| "Assistive technology supplier" means a service provider | 13 |
| involved in the sale and service of commercially available | 14 |
| assistive devices. | 15 |
| "Assistive technology practitioner" means a therapist or | 16 |
| other allied health professional primarily involved in | 17 |
| evaluating a consumer's needs and training a consumer in the | 18 |
| use of a prescribed assistive device. | 19 |
| "Health care professional" means a physician licensed to | 20 |
| practice medicine in all its branches under the Medical | 21 |
| Practice Act of 1987, a physical
therapist, an occupational | 22 |
| therapist, or another allied health care professional who | 23 |
| performs physical evaluations within the scope of his or her | 24 |
| practice. | 25 |
| "Physical evaluation" means the determination and | 26 |
| documentation of the physiological, functional, and | 27 |
| environmental factors that affect the selection of an | 28 |
| appropriate assistive device for a consumer. | 29 |
| "Qualified rehabilitation professional" means: (A) an | 30 |
| individual who has obtained the designation of assistive | 31 |
| technology supplier, assistive technology practitioner, or | 32 |
| rehabilitation engineering technologist, if applicable, after | 33 |
| meeting all the requirements for that designation as | 34 |
| established by the Rehabilitation Engineering and Assistive | 35 |
| Technology Society of North America (RESNA) or (B) an |
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| individual who (i) can provide documentation to prove | 2 |
| completion of at least 15 contact hours of continuing education | 3 |
| (CEC) within the 12 months immediately prior to July 1, 2006, | 4 |
| and all other subsequent years thereafter by June 30, in the | 5 |
| field of assistive devices, which may include, but is not | 6 |
| limited to, courses by health care professionals,
courses by | 7 |
| health care associations, courses by a college or university,
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| courses by manufacturers,
in-service training by | 9 |
| manufacturers, or
attendance at symposiums or conferences; | 10 |
| (ii) can provide proof of at least one year of experience, at | 11 |
| least 10 hours a week in a 40-hour work week, in the field of | 12 |
| rehabilitation technology; and
(iii) can provide 3 | 13 |
| recommendations from health care professionals who can attest | 14 |
| to the individual's skills concerning assistive devices. | 15 |
| "Rehabilitation engineering technologist" means a person | 16 |
| who applies engineering principles to the design, | 17 |
| modification, and customization of assistive devices. | 18 |
| "Technology assessment" means the process and | 19 |
| documentation of matching the pathology, history, and | 20 |
| prognosis of a consumer to the appropriate assistive device. | 21 |
| (b) On and after July 1, 2006, an assistive device dealer | 22 |
| or lessor must employ at least one qualified rehabilitation | 23 |
| professional if that dealer or lessor provides any assistive | 24 |
| device to a consumer who: | 25 |
| (1) is under age 21; | 26 |
| (2) has a primary diagnosis that results from
childhood | 27 |
| or adult onset injury or trauma; | 28 |
| (3) has a primary diagnosis that is
progressive or | 29 |
| degenerative in nature and necessitates an assistive | 30 |
| device; | 31 |
| (4) has a primary diagnosis that is
neurological or | 32 |
| neuromuscular in nature and necessitates an assistive | 33 |
| device; | 34 |
| (5) requires adaptive seating or positioning
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| equipment; | 36 |
| (6) has a diagnosis that indicates a need for
other |
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| assistive technology such as speech generating
devices or | 2 |
| environmental controls; or | 3 |
| (7) has a diagnosis that requires an assistive device | 4 |
| ordered by a health care professional. | 5 |
| (c) On and after July 1, 2006, in order for an assistive | 6 |
| device dealer or lessor to supply an assistive device to a | 7 |
| consumer, the consumer must have undergone a physical | 8 |
| evaluation by a health care professional, who must provide a | 9 |
| written report of the evaluation to be included in the | 10 |
| consumer's medical record and maintained on file by the | 11 |
| assistive device dealer or lessor. | 12 |
| (d) A health care professional, except a physician licensed | 13 |
| to practice medicine in all its branches under the Medical | 14 |
| Practice Act of 1987, must complete 5 contact hours of | 15 |
| continuing education (CEC) a year in the area of assistive | 16 |
| devices. | 17 |
| (e) On and after July 1, 2006, every assistive device | 18 |
| dealer or lessor making available technology assessments on | 19 |
| prescribed assistive devices must have on staff a qualified | 20 |
| rehabilitation professional. | 21 |
| (f) On and after July 1, 2006, a qualified rehabilitation | 22 |
| professional must perform a complete, face-to-face technology | 23 |
| assessment with respect to a consumer, based on the physical | 24 |
| evaluation required in subsection (c), and document, in | 25 |
| writing, recommendations for an assistive device that is | 26 |
| appropriate to meet the consumer's needs. | 27 |
| (g) On and after July 1, 2009, a 180-day grace period shall | 28 |
| be provided to an assistive device dealer or lessor that | 29 |
| provides technology assessments on prescribed assistive | 30 |
| devices if the qualified rehabilitation professional on the | 31 |
| dealer's or lessor's staff ceases to be employed by the dealer | 32 |
| or lessor and the dealer or lessor has no other qualified | 33 |
| rehabilitation professional on staff. During the grace period, | 34 |
| the standards regarding qualified rehabilitation professionals | 35 |
| contained in subsections (e) and (f) apply. | 36 |
| (h) On and after July 1, 2009, a qualified rehabilitation |
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LRB094 04164 DRJ 36053 b |
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| professional must be RESNA-certified with the designation of | 2 |
| assistive technology supplier, assistive technology | 3 |
| practitioner, or rehabilitation engineer technologist, if | 4 |
| applicable, or have an assistive technology degree from an | 5 |
| accredited college or university or any other designation | 6 |
| approved by the Home Medical Equipment and Services Board. This | 7 |
| subsection does not apply, however, to an individual who is a | 8 |
| licensed physical therapist or occupational therapist and who | 9 |
| performs physical evaluations within the scope of his or her | 10 |
| practice. | 11 |
| (i) Final fitting of an assistive device for a consumer | 12 |
| must be completed with a qualified rehabilitation professional | 13 |
| or health care professional present. | 14 |
| (j) On and after July 1, 2006, every assistive device | 15 |
| dealer or lessor making available prescribed assistive devices | 16 |
| must have a physical location with a working telephone and must | 17 |
| maintain at least $1,000,000 in liability insurance coverage. | 18 |
| (k) On or after July 1, 2009, every assistive device dealer | 19 |
| or lessor providing assistive devices must be accredited by a | 20 |
| nationally recognized accreditation body. | 21 |
| Section 15. Express warranty.
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| (a) A manufacturer who sells an assistive device to a | 23 |
| consumer, either
directly or through an assistive device | 24 |
| dealer, must furnish the consumer with
an express warranty for | 25 |
| the assistive device. The duration of the express
warranty must | 26 |
| be not less than one year after the date that the assistive
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| device is first delivered to the consumer. In the absence of an | 28 |
| express warranty from the
manufacturer, the manufacturer must | 29 |
| warrant to the consumer
of an assistive device that, for a | 30 |
| period of one year after the date that the assistive device is
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| first delivered to the consumer, the assistive device will be | 32 |
| free from any
condition or defect that substantially impairs | 33 |
| the value of the assistive
device to the consumer.
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| (b) If a new assistive device does not conform to an | 35 |
| applicable express
warranty and the consumer reports the |
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LRB094 04164 DRJ 36053 b |
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| nonconformity to the manufacturer, the
assistive device | 2 |
| lessor, or any manufacturer's authorized assistive device
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| dealer and makes the assistive device available for repair | 4 |
| before one year
after the date that the assistive device was | 5 |
| first delivered to the consumer, the nonconformity
must be | 6 |
| repaired at no charge to the consumer.
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| (c) If the nonconformity is not
repaired after a reasonable | 8 |
| attempt to do so, and if the assistive device is out of service | 9 |
| for an aggregate period of at least 30 days because of the | 10 |
| nonconformity, the manufacturer must comply with Section 20.
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| Section 20. Failure to repair.
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| (a) If a nonconformity is not repaired after a reasonable | 13 |
| attempt to do so, then at the direction of the consumer the | 14 |
| manufacturer must do one of
the following:
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| (1) Accept return of the assistive device, replace the | 16 |
| assistive device
with a comparable new assistive device, | 17 |
| and refund any collateral cost.
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| (2) Accept return of the assistive device and refund to | 19 |
| the consumer and to
any holder of a perfected security | 20 |
| interest in the consumer's assistive device
the full | 21 |
| purchase price plus any finance charge amount paid by the | 22 |
| consumer at
the point of sale and collateral costs, less a | 23 |
| reasonable allowance for use.
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| (3) With respect to a consumer who leases an assistive | 25 |
| device from an
assistive device lessor under a written | 26 |
| lease, accept return of the assistive
device, refund to the | 27 |
| assistive device lessor and to any holder of a perfected
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| security interest in the assistive device the current value | 29 |
| of the written
lease, and refund to the consumer the amount | 30 |
| that the consumer paid under the
written lease plus any | 31 |
| collateral costs, less a reasonable allowance for use.
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| (b) For purposes of this Section, a reasonable attempt to | 33 |
| repair an assistive device includes a time period of no more | 34 |
| than 30 days. This 30-day time limit applies both during the | 35 |
| period of any warranty covering the assistance device and after |
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| the expiration of any such warranty period. An assistive device | 2 |
| manufacturer's failure to repair an assistive device within 30 | 3 |
| days is a violation of this Act unless the manufacturer | 4 |
| complies with subsection (a) promptly after the expiration of | 5 |
| the 30-day period. | 6 |
| For purposes of this Section, the current value of the | 7 |
| written lease equals
the total amount for which that lease | 8 |
| obligates the consumer during the period
of the lease remaining | 9 |
| after its early termination, plus the assistive device
dealer's | 10 |
| early termination costs, and the value of the assistive device | 11 |
| at the
lease expiration date if the lease sets forth that | 12 |
| value, less the assistive
device lessor's reasonable allowance | 13 |
| for use.
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| For purposes of this Section, a reasonable allowance for | 15 |
| use may not exceed
the amount obtained by multiplying the total | 16 |
| amount for which the written lease
obligates the consumer by a | 17 |
| fraction, the denominator of which is 1,825 and the
numerator | 18 |
| of which is the number of days that the consumer used the | 19 |
| assistive
device before first reporting the nonconformity to | 20 |
| the manufacturer, assistive
device lessor, or assistive device | 21 |
| dealer.
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| (c) No person may enforce an assistive device lease against | 23 |
| a consumer of the device after the consumer receives a refund | 24 |
| under this Section.
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| Section 25. Receipt of new device or refund.
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| (a) To receive a comparable new
assistive device or a | 27 |
| refund due
under
Section 20, a consumer must offer to transfer | 28 |
| possession of the device having a nonconformity to the
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| manufacturer of the device. No later than 30 days after that | 30 |
| offer, the manufacturer must provide the consumer with a | 31 |
| comparable assistive device or a refund. When the
manufacturer | 32 |
| provides a new assistive device or a refund, the consumer must | 33 |
| return the assistive device having the nonconformity to the | 34 |
| manufacturer along
with any endorsements necessary to transfer | 35 |
| legal possession of the device to the
manufacturer.
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SB0101 |
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LRB094 04164 DRJ 36053 b |
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| If a consumer who has purchased an assistive device returns | 2 |
| the device as provided in this Section, the assistive device | 3 |
| manufacturer may not charge the consumer a fee for restocking | 4 |
| the assistive device that exceeds 10% of the device's purchase | 5 |
| price. | 6 |
| (b) To receive a refund due under item (3) of subsection | 7 |
| (a) of Section 20, a person who
leases
an assistive device from | 8 |
| an assistive device lessor authorized under a written
lease
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| must offer to return the assistive device having the | 10 |
| nonconformity to its
manufacturer of the device. No later than | 11 |
| 30 days after that offer, the manufacturer must
provide the | 12 |
| refund to the consumer. When the manufacturer provides the | 13 |
| refund,
the consumer must return the assistive device having | 14 |
| the
nonconformity to the manufacturer.
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| (c) To receive a refund due under item (3) of subsection | 16 |
| (a) of Section 20, an assistive device
lessor must offer to | 17 |
| transfer possession of the assistive device having the
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| nonconformity to the manufacturer of the device. No later than | 19 |
| 30 days after that offer, the
manufacturer must provide the | 20 |
| refund to the assistive device lessor.
When the manufacturer | 21 |
| provides the refund, the assistive device lessor
must provide | 22 |
| to the manufacturer any endorsements necessary to transfer | 23 |
| legal
possession of the device to the manufacturer.
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| Section 30. Resale or lease of returned device prohibited.
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| An assistive device that has been returned by
a consumer or | 26 |
| assistive device lessor in
this State under Section 25, or by a | 27 |
| consumer or assistive device lessor in another state under
a | 28 |
| similar law of that state, may not be sold or leased again in | 29 |
| this State unless
full disclosure of the reasons for the | 30 |
| device's return is made to any prospective buyer or
lessee of | 31 |
| the device.
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| Section 35. Arbitration.
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| (a) Upon payment of a prescribed fee, a consumer may submit | 34 |
| any dispute arising
under this Act to an alternative
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SB0101 |
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LRB094 04164 DRJ 36053 b |
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| arbitration mechanism established under rules adopted by the | 2 |
| Attorney
General.
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| (b) The arbitration shall be conducted by a professional
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| arbitrator or arbitration firm appointed by the Attorney | 5 |
| General and under rules adopted by the
Attorney General. The | 6 |
| arbitration mechanism shall ensure the personal objectivity of | 7 |
| its
arbitrators and the right of each party to present its | 8 |
| case, to be in
attendance during any presentation made by the | 9 |
| other party, and to rebut or
refute the other party's | 10 |
| presentation.
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| (c) This Section shall not be construed to limit rights or | 12 |
| remedies
available to a consumer under any other law.
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| Section 40. Consumer's rights; written statement; waiver | 14 |
| prohibited. | 15 |
| (a) The Attorney General shall prepare a written statement | 16 |
| of a consumer's rights under this Act and shall make copies of | 17 |
| the statement available to assistive device manufacturers, | 18 |
| manufacturers' authorized dealers, and assistive device | 19 |
| lessors upon request. Before a consumer purchases or leases an | 20 |
| assistive device: | 21 |
| (1) The manufacturer or dealer must give the consumer a | 22 |
| copy of the statement if the consumer proposes to purchase | 23 |
| the device. | 24 |
| (2) The manufacturer or lessor must give the consumer a | 25 |
| copy of the statement if the consumer proposes to lease the | 26 |
| device.
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| (b) A consumer's purported waiver of any of his or her | 28 |
| rights under this Act
is void.
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| Section 45. Enforcement; penalties. | 30 |
| (a) The Attorney General may impose a civil penalty in an | 31 |
| amount not exceeding $10,000 for a violation of this Act, other | 32 |
| than a failure to repair an assistive device within the time | 33 |
| permitted under subsection (b) of Section 20, by an assistive | 34 |
| device manufacturer, a manufacturer's authorized dealer, or an |
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| assistive device lessor. For a manufacturer's failure to repair | 2 |
| an assistive device within 30 days as required under subsection | 3 |
| (b) of Section 20, the Attorney General may impose a civil | 4 |
| penalty in an amount not exceeding $250 per week for each week | 5 |
| or part of a week in excess of those 30 days, except that the | 6 |
| Attorney General shall not impose such a penalty if the | 7 |
| manufacturer supplies a comparable device for the consumer's | 8 |
| use promptly after the expiration of the 30-day period for | 9 |
| making repairs. | 10 |
| The Attorney General may impose a civil penalty under this | 11 |
| Section only after he or she provides the following to the | 12 |
| manufacturer, dealer, or lessor: | 13 |
| (1) Written notice of the alleged violation. | 14 |
| (2) Written notice of the manufacturer, dealer, or | 15 |
| lessor's right to request an administrative hearing on the | 16 |
| question of the alleged violation. | 17 |
| (3) An opportunity to present evidence, orally or in | 18 |
| writing or both, on the question of the alleged violation | 19 |
| before an impartial hearing examiner appointed by the | 20 |
| Attorney General. | 21 |
| (4) A written decision from the Attorney General, based | 22 |
| on the evidence introduced at the hearing and the hearing | 23 |
| examiner's recommendations, finding that the manufacturer, | 24 |
| dealer, or lessor violated this Act and imposing the civil | 25 |
| penalty. | 26 |
| (b) The Attorney General may bring an action in the circuit | 27 |
| court to enforce the collection of a monetary penalty imposed | 28 |
| under this Section.
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| Section 50. Damages.
In addition to pursuing any other | 30 |
| remedy, a consumer may bring an action
to recover any damages | 31 |
| caused by a violation of this Act. The court shall
award a | 32 |
| consumer who prevails in such an action twice the amount of any
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| pecuniary loss, costs, disbursements, and reasonable | 34 |
| attorney's
fees, and
any equitable relief that the court | 35 |
| determines is appropriate.
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