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The Florida Senate

2012 Florida Statutes

Title XXX SOCIAL WELFARE
Chapter 427
SPECIAL TRANSPORTATION AND COMMUNICATIONS SERVICES
CHAPTER 427
CHAPTER 427
SPECIAL TRANSPORTATION AND COMMUNICATIONS SERVICES
PART I
TRANSPORTATION SERVICES
(ss. 427.011-427.017)
PART II
TELECOMMUNICATIONS ACCESS SYSTEM
(ss. 427.701-427.708)
PART III
ASSISTIVE TECHNOLOGY DEVICE WARRANTY ACT
(ss. 427.801-427.806)
PART I
TRANSPORTATION SERVICES
427.011 Definitions.
427.012 The Commission for the Transportation Disadvantaged.
427.013 The Commission for the Transportation Disadvantaged; purpose and responsibilities.
427.0135 Purchasing agencies; duties and responsibilities.
427.015 Function of the metropolitan planning organization or designated official planning agency in coordinating transportation for the transportation disadvantaged.
427.0155 Community transportation coordinators; powers and duties.
427.0157 Coordinating boards; powers and duties.
427.0158 School bus and public transportation.
427.0159 Transportation Disadvantaged Trust Fund.
427.016 Expenditure of local government, state, and federal funds for the transportation disadvantaged.
427.017 Conflicts with federal laws or regulations.
427.011 Definitions.—For the purposes of ss. 427.011-427.017:
(1) “Transportation disadvantaged” means those persons who because of physical or mental disability, income status, or age are unable to transport themselves or to purchase transportation and are, therefore, dependent upon others to obtain access to health care, employment, education, shopping, social activities, or other life-sustaining activities, or children who are handicapped or high-risk or at-risk as defined in s. 411.202.
(2) “Metropolitan planning organization” means the organization responsible for carrying out transportation planning and programming in accordance with the provisions of 23 U.S.C. s. 134, as provided in 23 U.S.C. s. 104(f)(3).
(3) “Agency” means an official, officer, commission, authority, council, committee, department, division, bureau, board, section, or any other unit or entity of the state or of a city, town, municipality, county, or other local governing body or a private nonprofit transportation service-providing agency.
(4) “Transportation improvement program” means a staged multiyear program of transportation improvements, including an annual element, which is developed by a metropolitan planning organization or designated official planning agency.
(5) “Community transportation coordinator” means a transportation entity recommended by a metropolitan planning organization, or by the appropriate designated official planning agency as provided for in ss. 427.011-427.017 in an area outside the purview of a metropolitan planning organization, to ensure that coordinated transportation services are provided to the transportation disadvantaged population in a designated service area.
(6) “Transportation operator” means one or more public, private for-profit, or private nonprofit entities engaged by the community transportation coordinator to provide service to transportation disadvantaged persons pursuant to a coordinated system service plan.
(7) “Coordinating board” means an advisory entity in each designated service area composed of representatives appointed by the metropolitan planning organization or designated official planning agency, to provide assistance to the community transportation coordinator relative to the coordination of transportation services.
(8) “Purchasing agency” means a department or agency whose head is an ex officio, nonvoting adviser to the commission, or an agency that purchases transportation services for the transportation disadvantaged.
(9) “Paratransit” means those elements of public transit which provide service between specific origins and destinations selected by the individual user with such service being provided at a time that is agreed upon by the user and provider of the service. Paratransit service is provided by taxis, limousines, “dial-a-ride,” buses, and other demand-responsive operations that are characterized by their nonscheduled, nonfixed route nature.
(10) “Transportation disadvantaged funds” means any local government, state, or available federal funds that are for the transportation of the transportation disadvantaged. Such funds may include, but are not limited to, funds for planning, Medicaid transportation, administration, operation, procurement, and maintenance of vehicles or equipment and capital investments. Transportation disadvantaged funds do not include funds for the transportation of children to public schools.
(11) “Coordination” means the arrangement for the provision of transportation services to the transportation disadvantaged in a manner that is cost-effective, efficient, and reduces fragmentation and duplication of services.
(12) “Nonsponsored transportation disadvantaged services” means transportation disadvantaged services that are not sponsored or subsidized by any funding source other than the Transportation Disadvantaged Trust Fund.
History.—ss. 1, 9, ch. 79-180; s. 4, ch. 80-414; ss. 1, 3, ch. 84-56; ss. 1, 14, ch. 89-376; s. 57, ch. 90-306; s. 5, ch. 91-429; s. 82, ch. 92-152; s. 63, ch. 94-237; s. 2, ch. 2008-203.
427.012 The Commission for the Transportation Disadvantaged.—There is created the Commission for the Transportation Disadvantaged in the Department of Transportation.
(1) The commission shall consist of seven members, all of whom shall be appointed by the Governor, in accordance with the requirements of s. 20.052.
(a) Five of the members must have significant experience in the operation of a business, and it is the intent of the Legislature that, when making an appointment, the Governor select persons who reflect the broad diversity of the business community in this state, as well as the racial, ethnic, geographical, and gender diversity of the population of this state.
(b) Two of the members must have a disability and use the transportation disadvantaged system.
(c) Each member shall represent the needs of the transportation disadvantaged throughout the state. A member may not subordinate the needs of the transportation disadvantaged in general in order to favor the needs of others residing in a specific location in the state.
(d) Each member shall be appointed to a term of 4 years. A member may be reappointed for one additional 4-year term.
(e) Each member must be a resident of the state and a registered voter.
(f) At any given time, at least one member must be at least 65 years of age.
(g) The Secretary of Transportation, the Secretary of Children and Family Services, the executive director of the Department of Economic Opportunity, the executive director of the Department of Veterans’ Affairs, the Secretary of Elderly Affairs, the Secretary of Health Care Administration, the director of the Agency for Persons with Disabilities, and a county manager or administrator who is appointed by the Governor, or a senior management level representative of each, shall serve as ex officio, nonvoting advisors to the commission.
(h) A member may not, within the 5 years immediately before his or her appointment, or during his or her term on the commission, have or have had a financial relationship with, or represent or have represented as a lobbyist as defined in s. 11.045, the following:
1. A transportation operator;
2. A community transportation coordinator;
3. A metropolitan planning organization;
4. A designated official planning agency;
5. A purchaser agency;
6. A local coordinating board;
7. A broker of transportation; or
8. A provider of transportation services.
(2) The chairperson shall be appointed by the Governor, and the vice chairperson of the commission shall be elected annually from the membership of the commission.
(3) Members of the commission shall serve without compensation but shall be allowed per diem and travel expenses, as provided in s. 112.061.
(4) The commission shall meet at least quarterly, or more frequently at the call of the chairperson. Four members of the commission constitute a quorum, and a majority vote of the members present is necessary for any action taken by the commission.
(5) The Governor may remove any member of the commission for cause.
(6) Each candidate for appointment to the commission must, before accepting the appointment, undergo background screening under s. 435.04 by filing with the Department of Transportation a complete set of fingerprints taken by an authorized law enforcement agency. The fingerprints must be submitted to the Department of Law Enforcement for state processing, and that department shall submit the fingerprints to the Federal Bureau of Investigation for federal processing. The Department of Transportation shall screen the background results and inform the commission of any candidate who does not meet level 2 screening standards. A candidate who has not met level 2 screening standards may not be appointed to the commission. The cost of the background screening may be borne by the Department of Transportation or the candidate.
(7) The commission shall appoint an executive director who shall serve under the direction, supervision, and control of the commission. The executive director, with the consent of the commission, shall employ such personnel as may be necessary to perform adequately the functions of the commission within budgetary limitations. Employees of the commission are exempt from the Career Service System.
(8) The commission shall appoint a technical working group that includes representatives of private paratransit providers. The technical working group shall advise the commission on issues of importance to the state, including information, advice, and direction regarding the coordination of services for the transportation disadvantaged. The commission may appoint other technical working groups whose members may include representatives of community transportation coordinators; metropolitan planning organizations; regional planning councils; experts in insurance, marketing, economic development, or financial planning; and persons who use transportation for the transportation disadvantaged, or their relatives, parents, guardians, or service professionals who tend to their needs.
(9) The commission is assigned to the office of the secretary of the Department of Transportation for administrative and fiscal accountability purposes, but it shall otherwise function independently of the control, supervision, and direction of the department.
(10) The commission shall develop a budget pursuant to chapter 216. The budget is not subject to change by the department staff after it has been approved by the commission, but it shall be transmitted to the Governor, as head of the department, along with the budget of the department.
History.—ss. 2, 8, 9, ch. 79-180; s. 5, ch. 80-414; s. 73, ch. 81-167; s. 76, ch. 83-55; ss. 2, 3, ch. 84-56; ss. 2, 14, ch. 89-376; s. 29, ch. 91-282; s. 5, ch. 91-429; s. 83, ch. 92-152; s. 64, ch. 94-237; s. 10, ch. 96-387; s. 204, ch. 99-8; s. 118, ch. 99-385; s. 9, ch. 2005-255; s. 1, ch. 2006-61; s. 3, ch. 2008-203; s. 342, ch. 2011-142; s. 59, ch. 2012-5.
427.013 The Commission for the Transportation Disadvantaged; purpose and responsibilities.—The purpose of the commission is to accomplish the coordination of transportation services provided to the transportation disadvantaged. The goal of this coordination is to assure the cost-effective provision of transportation by qualified community transportation coordinators or transportation operators for the transportation disadvantaged without any bias or presumption in favor of multioperator systems or not-for-profit transportation operators over single operator systems or for-profit transportation operators. In carrying out this purpose, the commission shall:
(1) Compile all available information on the transportation operations for and needs of the transportation disadvantaged in the state.
(2) Establish statewide objectives for providing transportation services for the transportation disadvantaged.
(3) Develop policies and procedures for the coordination of local government, federal, and state funding for the transportation disadvantaged.
(4) Identify barriers prohibiting the coordination and accessibility of transportation services to the transportation disadvantaged and aggressively pursue the elimination of these barriers.
(5) Serve as a clearinghouse for information about transportation disadvantaged services, training, funding sources, innovations, and coordination efforts.
(6) Assist communities in developing transportation systems designed to serve the transportation disadvantaged.
(7) Unless otherwise provided by state or federal law, ensure that all procedures, guidelines, and directives issued by purchasing agencies are conducive to the coordination of transportation services.
(8)(a) Ensure that purchasing agencies purchase all trips within the coordinated system, unless they have fulfilled the requirements of s. 427.0135(3) and use a more cost-effective alternative provider that meets comparable quality and standards.
(b) Unless the purchasing agency has negotiated with the commission pursuant to the requirements of s. 427.0135(3), provide, by rule, criteria and procedures for purchasing agencies to use if they wish to use an alternative provider. Agencies must demonstrate that the proposed alternative provider can provide a trip of comparable quality and standards for the clients at a lower cost than that provided within the coordinated system, or that the coordinated system cannot accommodate the agency’s clients.
(9) Unless the purchasing agency has negotiated with the commission pursuant to the requirements of s. 427.0135(3), develop by rule standards for community transportation coordinators and any transportation operator or coordination contractor from whom service is purchased or arranged by the community transportation coordinator covering coordination, operation, safety, insurance, eligibility for service, costs, and utilization of transportation disadvantaged services. These standards and rules must include, but are not limited to:
(a) Minimum performance standards for the delivery of services. These standards must be included in coordinator contracts and transportation operator contracts with clear penalties for repeated or continuing violations.
(b) Minimum liability insurance requirements for all transportation services purchased, provided, or coordinated for the transportation disadvantaged through the community transportation coordinator.
(10) Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of ss. 427.011-427.017.
(11) Approve the appointment of all community transportation coordinators.
(12) Have the authority to apply for and accept funds, grants, gifts, and services from the Federal Government, state government, local governments, or private funding sources. Applications by the commission for local government funds shall be coordinated through the appropriate coordinating board. Funds acquired or accepted under this subsection shall be administered by the commission and shall be used to carry out the commission’s responsibilities.
(13) Make an annual report to the Governor, the President of the Senate, and the Speaker of the House of Representatives by January 1 of each year.
(14) Consolidate, for each state agency, the amounts of each agency’s actual expenditures, together with the actual expenditures of each local government and directly federally funded agency and the amounts collected by each official planning agency.
(15) Prepare a statewide 5-year transportation disadvantaged plan which addresses the transportation problems and needs of the transportation disadvantaged, which is fully coordinated with local transit plans, compatible with local government comprehensive plans, and which ensures that the most cost-effective and efficient method of providing transportation to the disadvantaged is programmed for development.
(16) Review and approve memorandums of agreement for the provision of coordinated transportation services.
(17) Review, monitor, and coordinate all transportation disadvantaged local government, state, and federal fund requests and plans for conformance with commission policy, without delaying the application process. Such funds shall be available only to those entities participating in an approved coordinated transportation system or entities which have received a commission-approved waiver to obtain all or part of their transportation through another means. This process shall identify procedures for coordinating with the state’s intergovernmental coordination and review procedures and s. 216.212(1) and any other appropriate grant review process.
(18) Develop an interagency uniform contracting and billing and accounting system that shall be used by all community transportation coordinators and their transportation operators.
(19) Develop and maintain a transportation disadvantaged manual.
(20) Design and develop transportation disadvantaged training programs.
(21) Coordinate all transportation disadvantaged programs with appropriate state, local, and federal agencies and public transit agencies to ensure compatibility with existing transportation systems.
(22) Designate the official planning agency in areas outside of the purview of a metropolitan planning organization.
(23) Develop need-based criteria that must be used by all community transportation coordinators to prioritize the delivery of nonsponsored transportation disadvantaged services that are purchased with Transportation Disadvantaged Trust Fund moneys.
(24) Establish a review procedure to compare the rates proposed by alternate transportation operators with the rates charged by a community transportation coordinator to determine which rate is more cost-effective.
(25) Conduct a cost-comparison study of single-coordinator, multicoordinator, and brokered community transportation coordinator networks to ensure that the most cost-effective and efficient method of providing transportation to the transportation disadvantaged is programmed for development.
(26) Develop a quality assurance and management review program to monitor, based upon approved commission standards, services contracted for by an agency, and those provided by a community transportation operator pursuant to s. 427.0155.
(27) Ensure that local community transportation coordinators work cooperatively with regional workforce boards established in chapter 445 to provide assistance in the development of innovative transportation services for participants in the welfare transition program.
(28) In consultation with the Agency for Health Care Administration and the Department of Transportation, develop an allocation methodology that equitably distributes all transportation funds under the control of the commission to compensate counties, community transportation coordinators, and other entities providing transportation disadvantaged services. The methodology shall separately account for Medicaid beneficiaries. The methodology shall consider such factors as the actual costs of each transportation disadvantaged trip based on prior-year information, efficiencies that a provider might adopt to reduce costs, results of the rate and cost comparisons conducted under subsections (24) and (25), as well as cost efficiencies of trips when compared to the local cost of transporting the general public. This subsection does not supersede the authority of the Agency for Health Care Administration to distribute Medicaid funds.
(29) Incur expenses for the purchase of advertisements, marketing services, and promotional items.
History.—ss. 3, 9, ch. 79-180; s. 6, ch. 80-414; s. 274, ch. 81-259; ss. 1, 3, ch. 84-56; ss. 3, 14, ch. 89-376; s. 5, ch. 91-429; s. 84, ch. 92-152; s. 65, ch. 94-237; s. 17, ch. 98-57; s. 113, ch. 98-200; s. 119, ch. 99-385; s. 102, ch. 2000-165; s. 25, ch. 2000-266; s. 2, ch. 2006-61; s. 4, ch. 2008-203.
427.0135 Purchasing agencies; duties and responsibilities.—Each purchasing agency, in carrying out the policies and procedures of the commission, shall:
(1) Use the coordinated transportation system for provision of services to its clients, unless each department or purchasing agency meets the criteria outlined in rule or statute to use an alternative provider.
(2) Pay the rates established in the service plan or negotiated statewide contract, unless the purchasing agency has completed the procedure for using an alternative provider and demonstrated that a proposed alternative provider can provide a more cost-effective transportation service of comparable quality and standards or unless the agency has satisfied the requirements of subsection (3).
(3) Not procure transportation disadvantaged services without initially negotiating with the commission, as provided in s. 287.057(3)(f)12., or unless otherwise authorized by statute. If the purchasing agency, after consultation with the commission, determines that it cannot reach mutually acceptable contract terms with the commission, the purchasing agency may contract for the same transportation services provided in a more cost-effective manner and of comparable or higher quality and standards. The Medicaid agency shall implement this subsection in a manner consistent with s. 409.908(18) and as otherwise limited or directed by the General Appropriations Act.
(4) Identify in the legislative budget request provided to the Governor each year for the General Appropriations Act the specific amount of money the purchasing agency will allocate to provide transportation disadvantaged services.
(5) Provide the commission, by September 15 of each year, an accounting of all funds spent as well as how many trips were purchased with agency funds.
(6) Assist communities in developing coordinated transportation systems designed to serve the transportation disadvantaged. However, a purchasing agency may not serve as the community transportation coordinator in any designated service area.
(7) Ensure that its rules, procedures, guidelines, and directives are conducive to the coordination of transportation funds and services for the transportation disadvantaged.
(8) Provide technical assistance, as needed, to community transportation coordinators or transportation operators or participating agencies.
History.—ss. 4, 14, ch. 89-376; s. 5, ch. 91-429; s. 66, ch. 94-237; s. 4, ch. 95-394; s. 10, ch. 96-417; s. 26, ch. 2000-266; s. 5, ch. 2008-203; s. 34, ch. 2010-151.
427.015 Function of the metropolitan planning organization or designated official planning agency in coordinating transportation for the transportation disadvantaged.—
(1) In developing the transportation improvement program, each metropolitan planning organization or designated official planning agency in this state shall include a realistic estimate of the cost and revenue that will be derived from transportation disadvantaged services in its area. The transportation improvement program shall also identify transportation improvements that will be advanced with such funds during the program period. Funds required by this subsection to be included in the transportation improvement program shall only be included after consultation with all affected agencies and shall only be expended if such funds are included in the transportation improvement program.
(2) Each metropolitan planning organization or designated official planning agency shall recommend to the commission a single community transportation coordinator. However, a purchasing agency may not serve as the community transportation coordinator in any designated service area. The coordinator may provide all or a portion of needed transportation services for the transportation disadvantaged but shall be responsible for the provision of those coordinated services. Based on approved commission evaluation criteria, the coordinator shall subcontract or broker those services that are more cost-effectively and efficiently provided by subcontracting or brokering. The performance of the coordinator shall be evaluated based on the commission’s approved evaluation criteria by the coordinating board at least annually. A copy of the evaluation shall be submitted to the metropolitan planning organization or the designated official planning agency, and the commission. The recommendation or termination of any community transportation coordinator shall be subject to approval by the commission.
(3) Each metropolitan planning organization or designated official planning agency shall request each local government in its jurisdiction to provide the actual expenditures of all local and direct federal funds to be expended for transportation for the disadvantaged. The metropolitan planning organization or designated official planning agency shall consolidate this information into a single report and forward it, by September 15, to the commission.
History.—ss. 6, 9, ch. 79-180; ss. 1, 3, ch. 84-56; ss. 5, 14, ch. 89-376; s. 5, ch. 91-429; s. 67, ch. 94-237; s. 27, ch. 2000-266; s. 6, ch. 2008-203.
427.0155 Community transportation coordinators; powers and duties.—Community transportation coordinators shall have the following powers and duties:
(1) Execute uniform contracts for service using a standard contract, which includes performance standards for operators.
(2) Collect annual operating data for submittal to the commission.
(3) Review all transportation operator contracts annually.
(4) Approve and coordinate the utilization of school bus and public transportation services in accordance with the transportation disadvantaged service plan.
(5) In cooperation with a functioning coordinating board, review all applications for local government, federal, and state transportation disadvantaged funds, and develop cost-effective coordination strategies.
(6) In cooperation with, and approved by, the coordinating board, develop, negotiate, implement, and monitor a memorandum of agreement including a service plan, for submittal to the commission.
(7) In cooperation with the coordinating board and pursuant to criteria developed by the Commission for the Transportation Disadvantaged, establish eligibility guidelines and priorities with regard to the recipients of nonsponsored transportation disadvantaged services that are purchased with Transportation Disadvantaged Trust Fund moneys.
(8) Have full responsibility for the delivery of transportation services for the transportation disadvantaged as outlined in s. 427.015(2).
(9) Work cooperatively with regional workforce boards established in chapter 445 to provide assistance in the development of innovative transportation services for participants in the welfare transition program.
History.—ss. 6, 14, ch. 89-376; s. 5, ch. 91-429; s. 85, ch. 92-152; s. 68, ch. 94-237; s. 18, ch. 98-57; s. 103, ch. 2000-165; s. 7, ch. 2008-203.
427.0157 Coordinating boards; powers and duties.—The purpose of each coordinating board is to develop local service needs and to provide information, advice, and direction to the community transportation coordinators on the coordination of services to be provided to the transportation disadvantaged. The commission shall, by rule, establish the membership of coordinating boards. The members of each board shall be appointed by the metropolitan planning organization or designated official planning agency. The appointing authority shall provide each board with sufficient staff support and resources to enable the board to fulfill its responsibilities under this section. Each board shall meet at least quarterly and shall:
(1) Review and approve the coordinated community transportation disadvantaged service plan, including the memorandum of agreement, prior to submittal to the commission;
(2) Evaluate services provided in meeting the approved plan;
(3) In cooperation with the community transportation coordinator, review and provide recommendations to the commission on funding applications affecting the transportation disadvantaged;
(4) Assist the community transportation coordinator in establishing eligibility guidelines and priorities with regard to the recipients of nonsponsored transportation disadvantaged services that are purchased with Transportation Disadvantaged Trust Fund moneys.
(5) Review the coordination strategies of service provision to the transportation disadvantaged in the designated service area; and
(6) Evaluate multicounty or regional transportation opportunities.
(7) Work cooperatively with regional workforce boards established in chapter 445 to provide assistance in the development of innovative transportation services for participants in the welfare transition program.
History.—ss. 7, 14, ch. 89-376; s. 5, ch. 91-429; s. 86, ch. 92-152; s. 19, ch. 98-57; s. 104, ch. 2000-165; s. 8, ch. 2008-203.
427.0158 School bus and public transportation.—
(1) The community transportation coordinator shall maximize the use of public school transportation and public fixed route or fixed schedule transit service for the transportation of the transportation disadvantaged.
(2) The school boards shall cooperate in the utilization of their vehicles to enhance coordinated transportation disadvantaged services by providing information as requested by the community transportation coordinator and by allowing the use of their vehicles at actual cost upon request when those vehicles are available for such use and are not transporting students.
(3) The public transit fixed route or fixed schedule system shall cooperate in the utilization of its regular service to enhance coordinated transportation disadvantaged services by providing the information as requested by the community transportation coordinator. The community transportation coordinator may request, without limitation, the following information:
(a) A copy of all current schedules, route maps, system map, and fare structure;
(b) A copy of the current charter policy;
(c) A copy of the current charter rates and hour requirements; and
(d) Required notification time to arrange for a charter.
History.—ss. 8, 14, ch. 89-376; s. 5, ch. 91-429; s. 9, ch. 2008-203.
1427.0159 Transportation Disadvantaged Trust Fund.—
(1) There is established in the State Treasury the Transportation Disadvantaged Trust Fund to be administered by the Commission for the Transportation Disadvantaged. All fees collected for the transportation disadvantaged program under s. 320.03(9) shall be deposited in the trust fund.
(2) Funds deposited in the trust fund shall be appropriated by the Legislature to the commission and shall be used to carry out the responsibilities of the commission and to fund the administrative expenses of the commission.
(3) Funds deposited in the trust fund may be used by the commission to subsidize a portion of a transportation disadvantaged person’s transportation costs which is not sponsored by an agency, only if a cash or in-kind match is required. Funds for nonsponsored transportation disadvantaged services shall be distributed based upon the need of the recipient and according to criteria developed by the Commission for the Transportation Disadvantaged.
(4) A purchasing agency may deposit funds into the Transportation Disadvantaged Trust Fund for the commission to implement, manage, and administer the purchasing agency’s transportation disadvantaged funds, as defined in s. 427.011(10).
History.—ss. 9, 14, ch. 89-376; s. 5, ch. 91-429; s. 87, ch. 92-152; s. 69, ch. 94-237; s. 21, ch. 2000-257; s. 61, ch. 2001-62; s. 10, ch. 2008-203.
1Note.—Section 22, ch. 2000-257, provides that “[n]otwithstanding any other law to the contrary the requirements of sections 206.46(3) and 206.606(2), Florida Statutes, shall not apply to any funding, programs, or other provisions contained in this act.”
427.016 Expenditure of local government, state, and federal funds for the transportation disadvantaged.—
(1)(a) All transportation disadvantaged funds expended within the state shall be expended to purchase transportation services from community transportation coordinators or public, private, or private nonprofit transportation operators within the coordinated transportation system, except when the rates charged by proposed alternate operators are proven, pursuant to rules generated by the Commission for the Transportation Disadvantaged, to be more cost-effective and are not a risk to the public health, safety, or welfare. However, in areas where transportation suited to the unique needs of a transportation disadvantaged person cannot be purchased through the coordinated system, or where the agency has met the rule criteria for using an alternative provider, the service may be contracted for directly by the appropriate agency.
(b) This subsection does not preclude a purchasing agency from establishing maximum fee schedules, individualized reimbursement policies by provider type, negotiated fees, or any other mechanism, including contracting after initial negotiation with the commission, which the agency considers more cost-effective and of comparable or higher quality and standards than those of the commission for the purchase of services on behalf of its clients if it has fulfilled the requirements of s. 427.0135(3) or the procedure for using an alternative provider. State and local agencies shall not contract for any transportation disadvantaged services, including Medicaid reimbursable transportation services, with any community transportation coordinator or transportation operator that has been determined by the Agency for Health Care Administration, the Department of Legal Affairs Medicaid Fraud Control Unit, or any state or federal agency to have engaged in any abusive or fraudulent billing activities.
(2) Each year, each agency, whether or not it is an ex officio, nonvoting adviser to the Commission for the Transportation Disadvantaged, shall identify in the legislative budget request provided to the Governor for the General Appropriations Act the specific amount of any money the agency will allocate for the provision of transportation disadvantaged services. Additionally, each state agency shall, by September 15 of each year, provide the commission with an accounting of the actual amount of funds expended and the total number of trips purchased.
(3) Each metropolitan planning organization or designated official planning agency shall annually compile a report accounting for all local government and direct federal funds for transportation for the disadvantaged expended in its jurisdiction and forward this report by September 15 to the commission.
History.—ss. 5, 9, ch. 79-180; ss. 1, 3, ch. 84-56; ss. 10, 14, ch. 89-376; s. 5, ch. 91-429; s. 88, ch. 92-152; s. 70, ch. 94-237; s. 5, ch. 95-394; s. 11, ch. 2008-203.
427.017 Conflicts with federal laws or regulations.—Upon notification by an agency of the Federal Government that any provision of this act conflicts with federal laws or regulations, the state or local agencies involved may take any reasonable steps necessary to assure continued federal funding. Further, it is the legislative intent that the conflict shall not affect other provisions or applications of this act that can effectively be implemented without implementation of the provision in question, and to this end, the provisions of this act are declared severable.
History.—ss. 7, 9, ch. 79-180; ss. 1, 3, ch. 84-56; s. 14, ch. 89-376; s. 5, ch. 91-429.
PART II
TELECOMMUNICATIONS
ACCESS SYSTEM
427.701 Title.
427.702 Findings, purpose, and legislative intent.
427.703 Definitions.
427.704 Powers and duties of the commission.
427.705 Administration of the telecommunications access system.
427.706 Advisory committee.
427.707 Exemption from liability.
427.708 Certain public safety and health care providers required to purchase and operate TDD’s.
427.701 Title.—This part may be cited as the “Telecommunications Access System Act of 1991.”
History.—s. 1, ch. 91-111.
427.702 Findings, purpose, and legislative intent.—
(1) The Legislature finds and declares that:
(a) Telecommunications services provide a rapid and essential communications link among the general public and with essential offices and organizations such as police, fire, and medical facilities.
(b) All persons should have basic telecommunications services available to them at reasonable and affordable costs.
(c) A significant portion of Florida’s hearing impaired and speech impaired populations has profound disabilities, including dual sensory impairments, which render normal telephone equipment useless without additional specialized telecommunications devices, many of which cost several hundred dollars.
(d) The telecommunications system is intended to provide access to a basic communications network between all persons, and that many persons who have a hearing impairment or speech impairment currently have no access to the basic telecommunications system.
(e) Persons who do not have a hearing impairment or speech impairment are generally excluded from access to the basic telecommunications system to communicate with persons who have a hearing impairment or speech impairment without the use of specialized telecommunications devices.
(f) There exists a need for a telecommunications relay system whereby the cost for access to basic telecommunications services for persons who have a hearing impairment or speech impairment is no greater than the amount paid by other telecommunications customers.
(g) The Federal Government, in order to carry out the purposes established by Title II of the Communications Act of 1934, as amended, by the enactment of the Americans with Disabilities Act, endeavored to ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing impaired and speech impaired persons in the United States.
(h) Title IV of the Americans with Disabilities Act mandates that the telecommunications companies providing telephone services within the state shall provide telecommunications relay services on or before July 25, 1993, to persons who are hearing impaired or speech impaired within their certificated territories in a manner that meets or exceeds the requirements of regulations to be prescribed by the Federal Communications Commission.
(2) It is the declared purpose of this part to establish a system whereby the citizens of Florida who are hearing impaired, speech impaired, or dual sensory impaired have access to basic telecommunications services at a cost no greater than that paid by other telecommunications services customers, and whereby the cost of specialized telecommunications equipment necessary to ensure that citizens who are hearing impaired, speech impaired, or dual sensory impaired have access to basic telecommunications services and the provision of telecommunications relay service is borne by all the telecommunications customers of the state.
(3) It is the intent of the Legislature:
(a) That a telecommunications access system be established to provide equitable basic access to the telecommunications network for persons who are hearing impaired, speech impaired, or dual sensory impaired.
(b) That the telecommunications access system includes a telecommunications relay service system that meets or exceeds the certification requirements of the Federal Communications Commission.
(c) That the telecommunications access system includes the distribution of telecommunications devices for the deaf that are compatible with the telecommunications relay service system and has the capability of incorporating new technologies as they develop.
(d) That the telecommunications access system includes the distribution of specialized telecommunications devices necessary for hearing impaired, speech impaired, or dual sensory impaired persons to access basic telecommunications services.
(e) That the telecommunications access system ensures that users of the telecommunications relay service system pay rates no greater than the rates paid for functionally equivalent voice communications services.
(f) That the telecommunications access system be as cost efficient as possible without diminishing the effectiveness or the quality of the system.
(g) That the telecommunications access system uses state-of-the-art technology for specialized telecommunications devices and the telecommunications relay service and encourages the incorporation of new developments in technology, to the extent that it has demonstrated benefits consistent with the intent of this act and is in the best interest of the citizens of this state.
(h) That the value of the involvement of persons who have hearing or speech impairments, and organizations representing or serving those persons, be recognized and such persons and organizations be involved throughout the development, establishment, and implementation of the telecommunications access system through participation on the advisory committee as provided in s. 427.706.
(i) That the total cost of providing telecommunications relay services and distributing specialized telecommunications devices be spread equitably among and collected from customers of all local exchange telecommunications companies.
History.—s. 1, ch. 91-111.
427.703 Definitions.—As used in this part:
(1) “Administrator” means a corporation not for profit incorporated pursuant to the provisions of chapter 617 and designated by the Florida Public Service Commission to administer the telecommunications relay service system and the distribution of specialized telecommunications devices pursuant to the provisions of this act and rules and regulations established by the commission.
(2) “Commission” means the Florida Public Service Commission.
(3) “Deaf” means having a permanent hearing impairment and being unable to discriminate speech sounds in verbal communication, with or without the assistance of amplification devices.
(4) “Dual sensory impaired” means having both a permanent hearing impairment and a permanent visual impairment and includes deaf/blindness.
(5) “Hard of hearing” means having a permanent hearing impairment which is severe enough to necessitate the use of amplification devices to discriminate speech sounds in verbal communication.
(6) “Hearing impaired” or “having a hearing impairment” means deaf or hard of hearing and, for purposes of this part, includes being dual sensory impaired.
(7) “Local exchange telecommunications company” means a telecommunications company certificated by the commission to provide telecommunications services within a specific geographic area.
(8) “Operating fund” means the fund established, invested, managed, and maintained by the administrator for the exclusive purpose of implementing and administering the provisions of this act pursuant to commission rules and regulations.
(9) “Ring signaling device” means a mechanism, such as a flashing light, which visually indicates that a communication is being received through a telephone line. This term also means a mechanism such as an adjustable volume ringer and buzzer which audibly and loudly indicates an incoming telephone communication.
(10) “Speech impaired” or “having a speech impairment” means having a permanent loss of verbal communication ability which prohibits normal usage of a standard telephone handset.
(11) “Specialized telecommunications device” means a TDD, a volume control handset, a ring signaling device, or any other customer premises telecommunications equipment specifically designed or used to provide basic access to telecommunications services for a hearing impaired, speech impaired, or dual sensory impaired person.
(12) “Surcharge” means an additional charge which is to be paid by local exchange telecommunications company subscribers pursuant to the cost recovery mechanism established under s. 427.704(4) in order to implement the system described herein.
(13) “Telecommunications company” includes every corporation, partnership, and person and their lessees, trustees, or receivers appointed by any court whatsoever, and every political subdivision of the state, offering two-way telecommunications service to the public for hire within this state by the use of a telecommunications facility. The term “telecommunications company” does not include an entity which provides a telecommunications facility exclusively to a certificated telecommunications company, or a specialized mobile radio service operator, a private radio carrier, a radio common carrier, a cellular radio telecommunications carrier, or a cable television company providing cable service as defined in 47 U.S.C. s. 522.
(14) “Telecommunications device for the deaf” or “TDD” means a mechanism which is connected to a standard telephone line, operated by means of a keyboard, and used to transmit or receive signals through telephone lines.
(15) “Telecommunications facility” includes real estate, easements, apparatus, property, and routes used and operated to provide two-way telecommunications service to the public for hire within this state.
(16) “Telecommunications relay service” means any telecommunications transmission service that allows a person who is hearing impaired or speech impaired to communicate by wire or radio in a manner that is functionally equivalent to the ability of a person who is not hearing impaired or speech impaired. Such term includes any service that enables two-way communication between a person who uses a telecommunications device or other nonvoice terminal device and a person who does not use such a device.
(17) “Volume control handset” means a telephone which has an adjustable control for increasing the volume of the sound being produced by the telephone receiving unit or by the telephone transmitting unit.
History.—s. 1, ch. 91-111.
427.704 Powers and duties of the commission.—
(1) The commission shall establish, implement, promote, and oversee the administration of a statewide telecommunications access system to provide access to telecommunications relay services by persons who are hearing impaired or speech impaired, or others who communicate with them. The telecommunications access system shall provide for the purchase and distribution of specialized telecommunications devices and the establishment of statewide single provider telecommunications relay service system which operates continuously. To provide telecommunications relay services and distribute specialized telecommunication devices to persons who are hearing impaired or speech impaired, at a reasonable cost the commission shall:
(a) Investigate, conduct public hearings, and solicit the advice and counsel of the advisory committee established pursuant to s. 427.706 to determine the most cost-effective method for providing telecommunications relay service and distributing specialized telecommunications devices.
(b) Ensure that users of the telecommunications relay service system pay rates no greater than the rates paid for functionally equivalent voice communication services with respect to such factors as duration of the call, time of day, and distance from the point of origination to the point of termination.
(c) Ensure that the telecommunications access system protects the privacy of persons to whom services are provided and that all operators maintain the confidentiality of all relay service messages.
(d) Ensure that the telecommunications relay service system complies with regulations adopted by the Federal Communications Commission to implement Title IV of the Americans with Disabilities Act.
(2) The commission shall designate as the administrator of the telecommunications access system a corporation not for profit organized for such purposes and incorporated pursuant to chapter 617. For the purposes of this part, the commission may order telecommunications companies to form such a corporation not for profit.
(3)(a) The commission shall select the provider of the telecommunications relay service pursuant to procedures established by the commission. In selecting the service provider, the commission shall take into consideration the cost of providing the relay service and the interests of the hearing impaired and speech impaired community in having access to a high-quality and technologically advanced telecommunications system. The commission shall award the contract to the bidder whose proposal is the most advantageous to the state, taking into consideration the following:
1. The appropriateness and accessibility of the proposed telecommunications relay service for the citizens of the state, including persons who are hearing impaired or speech impaired.
2. The overall quality of the proposed telecommunications relay service.
3. The charges for the proposed telecommunications relay service system.
4. The ability and qualifications of the bidder to provide the proposed telecommunications relay service as outlined in the request for proposals.
5. Any proposed service enhancements and technological enhancements which improve service without significantly increasing cost.
6. Any proposed inclusion of provision of assistance to deaf persons with special needs to access the basic telecommunications system.
7. The ability to meet the proposed commencement date for the telecommunications relay service.
8. All other factors listed in the request for proposals.
(b) The commission shall consider the advice and counsel of the advisory committee in the development of the request for proposals. The request for proposals shall include, but not be limited to:
1. A description of the scope and general requirements of the telecommunications relay service, including the required compliance with regulations adopted by the Federal Communications Commission to implement Title IV of the Americans with Disabilities Act, the required service provisions and service limitations, system design, service provider qualifications, and service description, type of calls to be provided, and charges to the users.
2. A description of the telecommunications relay service system standards.
3. A description of information to be provided by the bidder, including service provider qualifications, cost information, including cost per call and startup costs, a description of the system design, including network access and facilities to be provided, and relay operator standards.
4. A description of service provider reporting requirements.
(c) The commission shall establish a request for a proposals review committee, which shall include commission staff and designated members of the advisory committee, to review the proposals received by the commission and recommend a telecommunications relay service provider to the commission for final selection. By agreeing to serve on the review committee, each member of the review committee shall agree that he or she currently does not have and will not have any interest or employment, either directly or indirectly, with potential bidders that would conflict in any manner or degree with his or her performance on the committee.
(d) To the extent a bidder desires any portion of its proposal to be considered proprietary, confidential business information, the bidder shall make such request concurrent with filing its proposal and justify its request as provided in s. 364.183.
(4)(a) The commission shall establish a mechanism to recover the costs of implementing and maintaining the services required pursuant to this part which shall be applied to each basic telecommunications access line. In establishing the recovery mechanism, the commission shall:
1. Require all local exchange telecommunications companies to impose a monthly surcharge on all local exchange telecommunications company subscribers on an individual access line basis, except that such surcharge shall not be imposed upon more than 25 basic telecommunications access lines per account bill rendered.
2. Require all local exchange telecommunications companies to include the surcharge as a part of the local service charge that appears on the customer’s bill, except that the local exchange telecommunications company shall specify the surcharge on the initial bill to the subscriber and itemize it at least once annually.
3. Allow the local exchange telecommunications company to deduct and retain 1 percent of the total surcharge amount collected each month to recover the billing, collecting, remitting, and administrative costs attributed to the surcharge.
(b) The commission shall determine the amount of the surcharge based upon the amount of funding necessary to accomplish the purposes of this act and provide the services on an ongoing basis; however, in no case shall the amount exceed 25 cents per line per month.
(c) All moneys received by the local exchange telecommunications company, less the amount retained as authorized by subparagraph (4)(a)3., shall be remitted to the administrator for deposit in appropriate financial institutions regulated under state or federal law and used exclusively to fund the telecommunications access system provided for herein.
(d) The surcharge collected by the local exchange telecommunications companies is not subject to any sales, use, franchise, income, municipal utility, gross receipts, or any other tax, fee, or assessment, nor shall it be considered revenue of the local exchange telecommunications companies for any purpose.
(e) From the date of implementing the surcharge, the commission shall review the amount of the surcharge at least annually and shall order changes in the amount of the surcharge as necessary to assure available funds for the provision of the telecommunications access system established herein. Where the review of the surcharge determines that excess funds are available, the commission may order the suspension of the surcharge for a period which the commission deems appropriate.
(5) The commission shall require each local exchange telecommunications company to begin assessing and collecting the surcharge in the amount of 5 cents per access line per month on bills rendered on or after July 1, 1991, for remission to the administrator for deposit in the operational fund. Each local exchange telecommunications company shall remit moneys collected to the administrator. On August 15, 1991, each local exchange telecommunications company shall begin remitting the moneys collected to the administrator on a monthly basis and in a manner as prescribed by the commission. The administrator shall use such moneys to cover costs incurred during the development of the telecommunications relay services and to establish and administer the specialized telecommunications devices system.
(6) The commission shall establish a schedule for completion of specific stages of the telecommunications relay service development and implementation except that the statewide telecommunications relay service shall commence on or before June 1, 1992.
(7) The commission shall require the administrator to submit financial statements for the distribution of specialized telecommunications devices and the telecommunications relay service to the commission quarterly, in the manner prescribed by the commission.
(8) The commission shall adopt rules and may take any other action necessary to implement the provisions of this act.
(9) The commission shall prepare an annual report on the operation of the telecommunications access system, which shall be available on the commission’s Internet website. Reports must be prepared in consultation with the administrator and the advisory committee appointed pursuant to s. 427.706. The reports must, at a minimum, briefly outline the status of developments in the telecommunications access system, the number of persons served, the call volume, revenues and expenditures, the allocation of the revenues and expenditures between provision of specialized telecommunications devices to individuals and operation of statewide relay service, other major policy or operational issues, and proposals for improvements or changes to the telecommunications access system.
History.—s. 1, ch. 91-111; s. 11, ch. 2000-334; s. 139, ch. 2010-102.
427.705 Administration of the telecommunications access system.—
(1) Consistent with the provisions of this act and rules and regulations established by the commission, the administrator shall:
(a) Purchase, store, distribute, and maintain specialized telecommunications devices, either directly or through contract with third parties, or a combination thereof.
(b) Administer advertising and outreach services as required by the commission, either directly or through contract with third parties, or a combination thereof.
(c) Administer training services for recipients of specialized telecommunications devices and for telecommunications relay service users as directed by the commission through contract with third parties.
(d) Establish and maintain an operational fund with appropriate financial institutions regulated under state or federal law, and receive moneys from the local exchange telecommunications companies and deposit such moneys in the operational fund.
(e) Develop, test, and implement an accounting system and internal controls and procedures to receive, safeguard, and disperse moneys in the operational fund as directed by the commission.
(f) Develop and implement procedures for an independent audit and for compliance with commission reporting requirements, as directed by the commission.
(g) Administer and control the award of money to all parties incurring costs in implementing and maintaining the telecommunications access system, equipment, and technical support services in accordance with the provisions of this act.
(2) The administrator shall be audited annually by an independent auditing firm to assure proper management of any revenues it receives and disburses. The administrator’s books and records shall be open to the commission and to the Auditor General for review upon request. The commission shall have the authority to establish fiscal and operational requirements for the administrator to follow in order to ensure that the administrative costs of the system are reasonable.
(3) The administrator may apply to the commission for an adjustment in the amount of the monthly surcharge that a local exchange telecommunications company must impose on its customers. Prior to applying to the commission for such an adjustment, the commission may require the administrator to employ an independent accounting firm to perform an audit of the accounts of the administrator and the service providers relevant to the surcharge and file a report with the commission.
(4) In contracting for the provision of distribution of specialized telecommunications devices, outreach services, and training of recipients, the administrator shall consider contracting with organizations that provide services to persons who are hearing impaired or speech impaired.
(5) The administrator shall provide for the distribution of specialized telecommunications devices to persons qualified to receive such equipment in accordance with the provisions of this act. The administrator shall establish procedures for the distribution of specialized telecommunications devices and shall solicit the advice and counsel and consider the recommendations of the advisory committee in establishing such procedures. The procedures shall:
(a) Provide for certification of persons as hearing impaired, speech impaired, or dual sensory impaired. Such certification process shall include a statement attesting to such impairment by a licensed physician, audiologist, speech-language pathologist, hearing aid specialist, or deaf service center director; by a state-certified teacher of the hearing impaired; by a state-certified teacher of the visually impaired; or by an appropriate state or federal agency. The licensed physician, audiologist, speech-language pathologist, hearing aid specialist, state-certified teacher of the hearing impaired, or state-certified teacher of the visually impaired providing statements which attest to such impairments shall work within their individual scopes of practice according to their education and training. The deaf service center directors and appropriate state and federal agencies shall attest to such impairments as provided for in the procedures developed by the administrator.
(b) Establish characteristics and performance standards for specialized telecommunications devices determined to be necessary, and for the selection of equipment to be purchased for distribution to qualified recipients. The characteristics and standards shall be modified as advances in equipment technology render such standards inapplicable.
(c) Provide for the administrator to apply for, contract for, receive, and expend for the purposes of this part any appropriation, grant, gift, or donation from the Federal Government or any other public or private source.
(d) Require the administrator to purchase the equipment required by this part on a competitively bid basis, so that the best value per unit may be obtained on the equipment selected for purchase, unless the equipment is available from only one source, or the total amount of the subject transaction does not exceed $5,000.
(6) All names, addresses, and telephone numbers provided to the Florida Public Service Commission or administrator by applicants for specialized telecommunications devices are confidential and exempt from the provisions of s. 119.07(1). The information shall be released to contractors only to the extent necessary for assignment and shipment of equipment, for provision of training in the use of equipment, and for inventory reconciliation purposes. Neither the administrator or any contractor shall release this information nor use it for any other purpose.
(7) The administrator shall assume responsibility for distribution of specialized telecommunications devices.
(8) The administrator shall submit financial statements to the commission quarterly, in the manner prescribed by the commission.
History.—s. 1, ch. 91-111; s. 1, ch. 92-2; s. 278, ch. 96-406; s. 52, ch. 99-5; s. 12, ch. 2000-334.
427.706 Advisory committee.—
(1) The commission shall appoint an advisory committee to assist the commission with the implementation of the provisions of this part. The committee shall be composed of no more than 10 persons and shall include, to the extent practicable, the following:
(a) Two deaf persons recommended by the Florida Association of the Deaf.
(b) One hearing impaired person recommended by Self-Help for the Hard of Hearing.
(c) One deaf and blind person recommended by the Coalition for Persons with Dual Sensory Disabilities.
(d) One speech impaired person recommended by the Florida Language Speech and Hearing Association.
(e) Two representatives of telecommunications companies.
(f) One person with experience in providing relay services recommended by the Deaf Service Center Association.
(g) One person recommended by the Advocacy Center for Persons with Disabilities, Inc.
(h) One person recommended by the Florida League of Seniors.
(2) The advisory committee shall provide the expertise, experience, and perspective of persons who are hearing impaired or speech impaired to the commission and to the administrator during all phases of the development and operation of the telecommunications access system. The advisory committee shall advise the commission and the administrator on the quality and cost-effectiveness of the telecommunications relay service and the specialized telecommunications devices distribution system. The advisory committee may submit material for inclusion in the annual report prepared pursuant to s. 427.704.
(3) Members of the committee shall not be compensated for their services but are entitled to receive reimbursement for per diem and travel expenses as provided in s. 112.061. The commission shall use funds from the Florida Public Service Regulatory Trust Fund to cover the costs incurred by members of the advisory committee.
History.—s. 1, ch. 91-111; s. 45, ch. 94-324; s. 18, ch. 95-327; s. 140, ch. 2010-102; s. 4, ch. 2012-177.
427.707 Exemption from liability.—Neither the commission, the administrator, the provider of the telecommunications relay service, nor any agent, employee, representative, or officer of the foregoing shall be liable for any claims, actions, damages, or causes of action arising out of or resulting from the establishment, participation in, or operation of the telecommunications relay service, except where there is malicious purpose or wanton and willful disregard of human rights, safety, or property in the establishment, participation in, or operation of the telecommunications relay service.
History.—s. 1, ch. 91-111.
427.708 Certain public safety and health care providers required to purchase and operate TDD’s.—
(1) The central communications office of each county sheriff’s department shall purchase and continually operate at least one TDD.
(2)(a) The central communications office of each police department and each firefighting agency in a municipality with a population of 25,000 to 250,000 shall purchase and continually operate at least one TDD.
(b) The central communications office of each police department and each firefighting agency in a municipality with a population exceeding 250,000 persons shall purchase and continually operate at least two TDD’s.
(3) Each hospital as defined in s. 395.002 shall purchase and continually operate at least one TDD.
(4) Each emergency telephone number “911” system, as provided in s. 365.171, and each agency receiving automatically routed calls through such a system shall purchase and continually operate at least one TDD.
(5) Each public safety office, health care provider, and emergency telephone number “911” system required to obtain a TDD pursuant to this section shall continuously operate and staff such equipment on a 24-hour basis.
(6) Each office or organization required to purchase TDD’s pursuant to this section shall buy such equipment which meets the same specifications as those selected by the commission.
(7) Each office or organization required to operate TDD’s pursuant to this section shall utilize equipment in accordance with standards established by the commission.
History.—s. 1, ch. 91-111; s. 80, ch. 92-289; s. 46, ch. 94-324; s. 19, ch. 95-327.
PART III
ASSISTIVE TECHNOLOGY
DEVICE WARRANTY ACT
427.801 Short title.
427.802 Definitions.
427.803 Express warranty.
427.804 Repair of nonconforming assistive technology devices; refund or replacement of devices after attempt to repair; sale or lease of returned device; arbitration; limitation of rights.
427.805 Waiver.
427.806 Action for damages.
427.801 Short title.—This part may be cited as the “Assistive Technology Device Warranty Act.”
History.—s. 1, ch. 97-47.
427.802 Definitions.—As used in this part:
(1) “Assistive technology devices” means manual wheelchairs, motorized wheelchairs, motorized scooters, voice-synthesized computer modules, optical scanners, talking software, braille printers, environmental control devices for use by a person with quadriplegia, motor vehicle adaptive transportation aids, devices that enable persons with severe speech disabilities to in effect speak, personal transfer systems, and specialty beds, including a demonstrator, that a consumer purchases or accepts transfer of in this state for use by a person with a disability.
(2) “Person with a disability” means any person who has one or more permanent physical or mental limitations that restrict his or her ability to perform the normal activities of daily living and impede his or her capacity to live independently.
(3) “Assistive technology device dealer” means a person who is engaged in the business of selling assistive technology devices.
(4) “Assistive technology device lessor” means a person who leases an assistive technology device to a consumer, or holds the lessor’s rights, under a written lease.
(5) “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.
(6) “Consumer” means any of the following:
(a) The 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.
(b) A person to whom the 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.
(c) A person who may enforce the warranty.
(d) A person who leases an assistive technology device from an assistive technology device lessor under a written lease.
(7) “Demonstrator” means an assistive technology device used primarily for the purpose of demonstration to the public.
(8) “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 that lease and the return of an assistive technology device to a manufacturer pursuant to this section. The term includes a penalty for prepayment under a financial arrangement.
(9) “Early termination saving” means any expense or obligation that an assistive technology device lessor avoids 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 a manufacturer pursuant to this section. The term includes 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 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 that amount at the date of the early termination.
(10) “Manufacturer” means a business entity that manufactures or produces assistive technology devices for sale and agents of that business entity, including an importer, a distributor, a factory branch, a distributor branch, and any warrantors of the manufacturer’s assistive technology device, but not including an assistive technology device dealer.
(11) “Nonconformity” means a condition or defect of an assistive technology device which substantially impairs the use, value, or safety of the device and which is covered by an express warranty applicable to the assistive technology device, but does not include a condition or defect that is the result of abuse, neglect, excessive wear, or unauthorized modification or alteration of the assistive technology device by a consumer.
(12) “Reasonable attempt to repair” means, within the terms of an express warranty applicable to a new assistive technology device:
(a) A maximum of three efforts by the manufacturer, the assistive technology device lessor, or any of the manufacturer’s authorized assistive technology device dealers to repair a nonconformity that is subject to repair under the warranty; or
(b) The passage of at least 30 cumulative days during which the assistive technology device is out of service because of a nonconformity that is covered by the warranty.
History.—s. 1, ch. 97-47; s. 17, ch. 99-307; s. 3, ch. 2001-214.
427.803 Express warranty.—A manufacturer who sells a new assistive technology device to a consumer, either directly or through an assistive technology device dealer, shall furnish the consumer with an express warranty for the assistive technology device. The duration of the express warranty must be at least 1 year after first delivery of the assistive technology device to the consumer. In the absence of an express warranty from the manufacturer, the manufacturer is considered to have expressly warranted to the consumer of an assistive technology device that, for a period of 1 year after the date of first 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.
History.—s. 1, ch. 97-47; s. 18, ch. 99-307; s. 4, ch. 2001-214.
427.804 Repair of nonconforming assistive technology devices; refund or replacement of devices after attempt to repair; sale or lease of returned device; arbitration; limitation of rights.—
(1) If a new assistive technology device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive technology device lessor, or any of the manufacturer’s authorized assistive technology device dealers and makes the assistive technology device available for repair within 1 year after first delivery or return of the assistive technology device to the consumer, the nonconformity must be repaired at no charge to the consumer.
(2) If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer, at the direction of a consumer as defined in s. 427.802(6)(a)-(c), must do one of the following:
(a) Accept return of the assistive technology device and replace the assistive technology device with a comparable new assistive technology device and refund any collateral costs.
(b) Accept return of the assistive technology device and refund to the consumer and to any holder of a perfected security interest in the consumer’s assistive technology device, as the interest may appear, the full purchase price plus any finance charge amount paid by the consumer at the point of sale, and collateral costs.
(c) With respect to a consumer as defined in s. 427.802(6)(d), accept return of the assistive technology device, refund to the assistive technology device lessor and to any holder of a perfected security interest in the assistive technology device, as the 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.
(3) The current value of the written lease equals the total amount for which the lease obligates the consumer during the period of the lease remaining after its early termination plus the assistive technology device dealer’s early termination costs and the value of the assistive technology device at the lease expiration date if the lease sets forth the value, less the assistive technology device lessor’s early termination savings.
(4) To receive a comparable new assistive technology device or a refund due under paragraph (2)(a), a consumer must offer to the manufacturer of the assistive technology device having the nonconformity to transfer possession of the assistive technology device to the manufacturer. No later than 30 days after the offer, the manufacturer shall provide the consumer with the comparable assistive technology device or refund. When the manufacturer provides the comparable assistive technology device or refund, the consumer shall return the assistive technology device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer real possession to the manufacturer.
(5) To receive a refund due under paragraph (2)(b), a consumer must offer to return the assistive technology device having the nonconformity to its manufacturer. No later than 30 days after the offer, the manufacturer shall provide the refund to the consumer who paid for or the provider who billed a third party payor source for the assistive technology device. The provider shall return the manufacturer’s refund to the third party payor source, unless the provider was not reimbursed by the third party payor. When the manufacturer provides the refund, the consumer shall return to the manufacturer the assistive technology device having the nonconformity.
(6) To receive a refund due under paragraph (2)(c), an assistive technology device lessor must offer to transfer possession of the assistive technology device having the nonconformity to its manufacturer. No later than 30 days after the offer, the manufacturer shall provide the refund to the assistive technology device lessor. When the manufacturer provides the refund, the assistive technology device lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.
(7) A person may not enforce the lease against the consumer after the consumer receives a refund due under paragraph (2)(c).
(8) An assistive technology device that is 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 return is made to any prospective buyer or lessee.
(9) Each consumer may submit any dispute arising under this part to an alternative arbitration mechanism established pursuant to chapter 682. Upon notice by the consumer, all manufacturers must submit to such alternative arbitration.
(10) Such alternative arbitration must be conducted by a professional arbitrator or arbitration firm appointed under chapter 682 and any applicable rules. These procedures must provide for the personal objectivity of the arbitrators and for the right of each party to present its case, to be in attendance during any presentation made by the other party, and to rebut or refute such a presentation.
(11) This part does not limit rights or remedies available to a consumer under any other law.
History.—s. 1, ch. 97-47; s. 19, ch. 99-307; s. 5, ch. 2001-214; s. 44, ch. 2001-279.
427.805 Waiver.—Any waiver by a consumer of rights under this part is void.
History.—s. 1, ch. 97-47.
427.806 Action for damages.—In addition to pursuing any other remedy, a consumer may bring an action to recover damages for any injury caused by a violation of this part. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, together with costs, disbursements, and reasonable attorney’s fees, and any equitable relief that the court determines is appropriate.
History.—s. 1, ch. 97-47.