Public Act 094-0378
 
SB0101 Enrolled LRB094 04164 DRJ 36053 b

    AN ACT to create the Assistive Technology Protection Act.
 
    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
Assistive Technology Warranty Act.
 
    Section 5. Definitions. In this Act:
    "Assistive technology device" means any item, piece of
equipment, or product system, whether acquired commercially,
modified, or customized, that is purchased or leased, or whose
transfer is accepted in this State, and that is used to
increase, maintain, or improve functional capabilities of
individuals with disabilities. "Assistive technology device"
does not mean any medical device, surgical device, or organ
implanted or transplanted into or attached directly to an
individual. "Assistive technology device" does not include a
"hearing instrument" or "hearing aid" as defined in the Hearing
Instrument Consumer Protection Act. "Assistive technology
device" also does not include any device for which a
certificate of title is issued by the Secretary of State,
Division of Motor Vehicles, but does mean any item, piece of
equipment, or product system otherwise meeting the definition
of "assistive technology device" that is incorporated,
attached, or included as a modification in or to such
certificated device.
    "Assistive technology device dealer" means a person who is
in the business of selling assistive technology devices.
    "Assistive technology device lessor" means a person who
leases assistive technology devices to consumers, or who holds
the lessor's rights, under a written lease.
    "Collateral cost" means expenses incurred by a consumer in
connection with the repair of a nonconformity, including the
cost of shipping, sales tax, and the cost of obtaining an
alternative assistive technology device.
    "Consumer" means any one of the following:
        (1) A purchaser of an assistive technology device, if
    the assistive technology device was purchased from an
    assistive technology device dealer or manufacturer for
    purposes other than resale.
        (2) A person to whom an assistive technology device is
    transferred for purposes other than resale, if the transfer
    occurs before the expiration of an express warranty
    applicable to the assistive technology device.
        (3) A person who may enforce a warranty applicable to
    an assistive technology device.
        (4) A person who leases an assistive technology device
    from an assistive technology device lessor under a written
    lease.
    "Consumer" does not include a person who acquires an
assistive technology device at no charge through a donation.
    "Demonstrator" means an assistive technology device used
primarily for the purpose of demonstration to the public.
    "Early termination cost" means any expense or obligation
that an assistive technology device lessor incurs as a result
of both the termination of a written lease before the
termination date set forth in the lease and the return of an
assistive technology device to the manufacturer, including a
penalty for prepayment under a financing arrangement.
    "Early termination savings" means any expense or
obligation that an assistive technology device lessor avoids as
a result of both the termination date set forth in the lease
and the return of an assistive technology device to a
manufacturer, including an interest charge that the assistive
technology device lessor would have paid to finance the
assistive technology device or, if the assistive technology
device lessor does not finance the assistive technology device,
the difference between the total payments remaining for the
period of the lease term remaining after the early termination
and the present value of those remaining payments at the date
of the early termination.
    "Loaner" means an assistive technology device provided
free of charge to a consumer, for use by the consumer, that
need not be new or identical to, or have functional
capabilities equal to or greater than, those of the original
assistive technology device, but that meets all of the
following conditions:
        (1) It is in good working order.
        (2) It performs, at a minimum, the most essential
    functions of the original assistive technology device in
    light of the disabilities of the consumer.
        (3) There is no threat to the health or safety of the
    consumer due to any differences between the loaner and the
    original assistive technology device.
    "Manufacturer" means a person who manufactures or
assembles assistive technology devices and (i) any agent of
that person, including an importer, distributor, factory
branch, or distributor branch, and (ii) any warrantor of an
assistive technology device. The term does not include an
assistive technology device dealer or assistive technology
device lessor.
    "Nonconformity" means any defect, malfunction, or
condition that substantially impairs the use, value, or safety
of an assistive technology device or any of its component
parts, but does not include a condition, defect, or malfunction
that is the result of abuse, neglect, or unauthorized
modification or alteration of the assistive technology device
by the consumer.
    "Reasonable attempt to repair" means any of the following
occurring within the term of an express warranty applicable to
a new assistive technology device or within one year after the
first delivery of the assistive technology device to a
consumer, whichever is sooner:
        (1) The manufacturer, the assistive technology device
    lessor, or any of the manufacturer's authorized assistive
    technology device dealers accept return of the new
    assistive technology device for repair at least 2 times.
        (2) The manufacturer, the assistive technology device
    lessor, or any of the manufacturer's authorized assistive
    technology device dealers place the assistive technology
    device out of service for an aggregate of at least 30
    cumulative days because of nonconformities covered by a
    warranty that applies to the device.
 
    Section 10. Express warranty. A manufacturer or assistive
technology device lessor who sells or leases an assistive
technology device to a consumer, either directly or through an
assistive technology device dealer, must furnish the consumer
with an express warranty for the assistive technology device
warranting that the device is free of any nonconformity. The
duration of the express warranty must be not less than one year
after the date of the initial delivery of the assistive
technology device to the consumer. If the manufacturer fails to
furnish an express warranty as required by this Section, the
manufacturer shall be deemed to have warranted to the consumer
of an assistive technology device that, for a period of one
year after the date of the initial delivery to the consumer,
the assistive technology device will be free from any condition
or defect that substantially impairs the value of the assistive
technology device to the consumer. The express warranty takes
effect on the date the consumer initially takes possession of
the new assistive technology device.
 
    Section 15. Assistive technology device replacement or
refund.
    (a) If a new assistive technology device does not conform
to an applicable express warranty and the consumer (i) reports
the nonconformity to the manufacturer, the assistive
technology device lessor, or any of the manufacturer's
authorized assistive technology device dealers and (ii) makes
the assistive technology device available for repair before one
year after the first delivery of the device to the consumer or
within the period of the express warranty if the express
warranty is longer than one year, then a reasonable attempt to
repair the nonconformity must be made at no charge to the
consumer.
    (b) If, after a reasonable attempt to repair, the
nonconformity is not repaired, the person from whom the
assistive technology device was purchased or leased must carry
out the requirements of either item (1) or item (2) of this
subsection at the option of the consumer:
        (1) The person from whom the assistive technology
    device was purchased or leased shall provide a refund to
    the consumer within 30 days after the request by the
    consumer. If the consumer chooses this option, he or she
    shall return the device having a nonconformity to the
    person from whom the assistive technology device was
    purchased or leased along with any endorsements necessary
    to transfer legal possession to the person from whom the
    assistive technology device was purchased or leased.
         If the assistive technology device was purchased by
    the consumer, the person from whom the assistive technology
    device was purchased shall accept return of the assistive
    technology device and refund to the consumer, and to any
    holder of a perfected security interest in the assistive
    technology device as the holder's interest may appear, the
    full purchase price plus any finance charge paid by the
    consumer at the point of sale and collateral costs, less a
    reasonable allowance for use.
         If the assistive technology device was leased by the
    consumer, the person from whom the assistive technology
    device was leased shall accept return of the device, refund
    to the assistive technology lessor and to any holder of a
    perfected security interest in the device, as the holder's
    interest may appear, the current value of the written
    lease, and refund to the consumer the amount that the
    consumer paid under the written lease plus any collateral
    costs, less a reasonable allowance for use.
        (2) The person from whom the assistive technology
    device was purchased or leased shall provide a comparable
    new assistive technology device. The consumer shall offer
    to transfer possession of the device having a nonconformity
    to the person from whom the assistive technology device was
    purchased or leased. No later than 30 days after that
    offer, the person from whom the assistive technology device
    was purchased or leased shall provide the consumer with the
    comparable new assistive device. Upon receipt of the
    comparable new assistive device, the consumer shall return
    the device having the nonconformity to the person from whom
    the assistive technology device was purchased or leased,
    along with any endorsements necessary to transfer legal
    possession to the person from whom the assistive technology
    device was purchased or leased.
    (c) For purposes of this Section, "current value of the
written lease" means the total amount for which that lease
obligates the consumer during the period of the lease remaining
after its early termination, plus the assistive device lessor's
early termination costs and the value of the assistive device
at the lease expiration date if the lease sets forth that
value, less the assistive device lessor's early termination
savings.
    (d) For purposes of this Section, a "reasonable allowance
for use" may not exceed the amount obtained by multiplying the
total amount for which the written 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 consumer used
the assistive device before first reporting the nonconformity
to the person from whom the assistive technology device was
purchased or leased.
 
    Section 20. Prohibition on enforcement of lease. A person
may not enforce an assistive technology device lease against a
consumer after the consumer receives a refund under Section 15.
 
    Section 25. Restriction on resale or lease; full
disclosure. An assistive technology device returned by a
consumer or assistive technology device lessor in this State,
or by a consumer or assistive technology device lessor in
another state under a similar law of that state, may not be
sold or leased again in this State unless full disclosure of
the reasons for the return is made to any prospective buyer or
lessee of the device.
 
    Section 30. Waiver of rights void. Any waiver by a consumer
of his or her rights under this Act is void.
 
    Section 35. Civil remedies. In addition to pursuing any
other remedy, a consumer may bring an action to recover any
damages caused by a violation of this Act. The court shall
award a consumer who prevails in such an action no more than
twice the amount of any pecuniary loss, costs, disbursements,
and reasonable attorney's fees, and any equitable relief that
the court deems appropriate.