Senate Bill 2514
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Florida Senate - 2000 SB 2514
By Senator Forman
32-1257-00
1 A bill to be entitled
2 An act relating to medical equipment; amending
3 s. 400.295, F.S.; defining the terms
4 "collateral costs," "nonconformity," and
5 "warranty rights period"; creating s. 400.936,
6 F.S.; providing for warranties and equipment
7 repairs; providing for notice of consumer's
8 rights; amending s. 427.802, F.S.; redefining
9 the terms "assistive technology devices" and
10 "assistive technology device dealer"; amending
11 s. 427.803, F.S.; revising the duties of
12 assistive technology device dealers and
13 manufacturers; amending s. 427.8041, F.S.;
14 eliminating a fee; providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
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18 Section 1. Section 400.925, Florida Statutes, is
19 amended to read:
20 400.925 Definitions.--As used in this part, the term:
21 (1) "Accrediting organizations" means the Joint
22 Commission on Accreditation of Healthcare Organizations or
23 other national accreditation agencies whose standards for
24 accreditation are comparable to those required by this part
25 for licensure.
26 (2) "Affiliated person" means any person who directly
27 or indirectly manages, controls, or oversees the operation of
28 a corporation or other business entity that is a licensee,
29 regardless of whether such person is a partner, shareholder,
30 owner, officer, director, agent, or employee of the entity.
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Florida Senate - 2000 SB 2514
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1 (3) "Agency" means the Agency for Health Care
2 Administration.
3 (4) "Applicant" means an individual applicant in the
4 case of a sole proprietorship, or any officer, director,
5 agent, managing employee, general manager, or affiliated
6 person, or any partner or shareholder having an ownership
7 interest equal to 5 percent or greater in the corporation,
8 partnership, or other business entity.
9 (5) "Collateral costs" means expenses incurred by a
10 consumer in connection with the repair of a nonconformity,
11 including the costs of obtaining an alternative home medical
12 equipment device.
13 (6)(5) "Consumer" or "patient" means any person who
14 uses home medical equipment in his or her place of residence.
15 (7)(6) "Department" means the Department of Children
16 and Family Services.
17 (8)(7) "General manager" means the individual who has
18 the general administrative charge of the premises of a
19 licensed home medical equipment provider.
20 (9)(8) "Home medical equipment" includes any product
21 as defined by the Federal Drug Administration's Drugs, Devices
22 and Cosmetics Act, any products reimbursed under the Medicare
23 Part B Durable Medical Equipment benefits, or any products
24 reimbursed under the Florida Medicaid durable medical
25 equipment program. Home medical equipment includes, but is not
26 limited to, oxygen and related respiratory equipment. Home
27 medical equipment includes customized wheelchairs and related
28 seating and positioning, but does not include prosthetics or
29 orthotics or any splints, braces, or aids custom fabricated by
30 a licensed health care practitioner.
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Florida Senate - 2000 SB 2514
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1 (10)(9) "Home medical equipment provider" means any
2 person or entity that sells or rents or offers to sell or rent
3 to or for a consumer:
4 (a) Any home medical equipment and services; or
5 (b) Home medical equipment that requires any home
6 medical equipment services.
7 (11)(10) "Home medical equipment provider personnel"
8 means persons who are employed by or under contract with a
9 home medical equipment provider.
10 (12)(11) "Home medical equipment services" means
11 equipment management and consumer instruction, including
12 selection, delivery, setup, and maintenance of equipment, and
13 other related services for the use of home medical equipment
14 in the consumer's regular or temporary place of residence.
15 (13)(12) "Licensee" means the person or entity to whom
16 a license to operate as a home medical equipment provider is
17 issued by the agency.
18 (14)(13) "Moratorium" means a mandated temporary
19 cessation or suspension of the sale, rental, or offering of
20 equipment after the imposition of the moratorium. Services
21 related to equipment sold or rented prior to the moratorium
22 must be continued without interruption, unless deemed
23 otherwise by the agency.
24 (15) "Nonconformity" means a condition or defect of a
25 home medical equipment device which substantially impairs the
26 use, value, or safety of the device and which is covered by an
27 express warranty applicable to the home medical equipment
28 device, but does not include a condition or defect that is the
29 result of abuse, neglect, or unauthorized modification or
30 alteration of the home medical equipment device by a consumer.
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1 (16)(14) "Person" means any individual, firm,
2 partnership, corporation, or association.
3 (17)(15) "Premises" means those buildings and
4 equipment which are located at the address of the licensed
5 home medical equipment provider for the provision of home
6 medical equipment services, which are in such reasonable
7 proximity as to appear to the public to be a single provider
8 location, and which comply with zoning ordinances.
9 (18)(16) "Residence" means the consumer's home or
10 place of residence, which may include nursing homes, assisted
11 living facilities, transitional living facilities, adult
12 family-care homes, or other congregate residential facilities.
13 (19) "Warranty rights period" means the period ending
14 1 year after first delivery of the home medical equipment
15 device to the consumer or the manufacturer's express written
16 warranty, whichever is longer.
17 Section 2. Section 400.936, Florida Statutes, is
18 created to read:
19 400.936 Warranties; repairs; consumer's rights.--
20 (1) A manufacturer that sells new equipment to a
21 consumer, either directly or through a home medical equipment
22 provider, shall furnish the consumer with an express warranty
23 for the equipment. The duration of the express warranty must
24 be for at least 1 year after first delivery of the equipment
25 to the consumer unless the manufacturer's warranty is longer.
26 In the absence of an express warranty from the manufacturer,
27 the manufacturer is considered to have expressly warranted to
28 the consumer of home medical equipment that, for a period of 1
29 year after the date of first delivery to the consumer, the
30 equipment will be free from any condition or defect that
31 substantially impairs the value of the equipment to the
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1 consumer. This paragraph does not apply to nonequipment items
2 that are disposable or consumable supplies.
3 (2) If any home medical equipment does not conform to
4 the warranty and the consumer first reports the problem to the
5 manufacturer during the warranty rights period, the
6 manufacturer shall make repairs necessary to conform the
7 equipment to the warranty, irrespective of whether the repairs
8 are made after the expiration of the warranty rights period.
9 The repairs will be at no cost to the consumer if reported to
10 the provider or manufacturer during the warranty rights
11 period. This subsection may not be construed to grant an
12 extension of the warranty rights period or to expand the time
13 within which a consumer must file a complaint under this part.
14 (3) If any new home medical equipment does not conform
15 to an applicable express warranty and the consumer reports the
16 nonconformity to the manufacturer or the provider and makes
17 the equipment available for repair within 1 year after first
18 delivery or return of the equipment to the consumer, the
19 nonconformity must be repaired at no charge to the consumer.
20 (4) If, after a reasonable attempt to repair, the
21 nonconformity is not repaired, the manufacturer, at the
22 direction of the consumer, must do one of the following:
23 (a) Accept return of the equipment and replace the
24 equipment with comparable new equipment and refund any
25 collateral costs.
26 (b) Accept return of the equipment and refund to the
27 consumer and to any holder of a perfected security interest in
28 the consumer's equipment, as the interest may appear, the full
29 purchase price plus any finance charge amount paid by the
30 consumer at the point of sale, and collateral costs.
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1 (5) To receive comparable home medical equipment or a
2 refund due under paragraph (4)(a), a consumer must offer to
3 transfer possession of the equipment having the nonconformity
4 to the manufacturer. No later than 30 days after the offer,
5 the manufacturer shall provide the consumer with the
6 comparable equipment or refund. When the manufacturer
7 provides the comparable equipment or refund, the consumer
8 shall return the equipment having the nonconformity to the
9 manufacturer, along with any endorsements necessary to
10 transfer real possession to the manufacturer.
11 (6) To receive a refund due under paragraph (4)(b), a
12 consumer must offer to return the equipment having the
13 nonconformity to its manufacturer. No later than 30 days
14 after the offer, the manufacturer shall provide the refund to
15 the consumer. When the manufacturer provides the refund, the
16 consumer shall return to the manufacturer the equipment having
17 the nonconformity.
18 (7)(a) A home medical equipment provider shall furnish
19 to consumers, at the time of acquisition or lease, a written
20 statement prepared by the agency that explains the consumer's
21 rights under this part. The statement shall include the
22 consumer toll-free number for the agency, 888-419-3456.
23 Consumers should contact the provider with complaints
24 regarding any equipment and services and any equipment
25 warranty issues. If the provider and consumer are unable to
26 resolve the complaint issues together, the consumer should
27 contact the agency's toll-free number to report the complaint.
28 The consumer's signed acknowledgement of receipt of materials
29 required under this part constitutes prima facie evidence of
30 compliance by the provider and manufacturer. The
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1 acknowledgement must be a part of the consumer's record for 5
2 years.
3 (b) A provider or manufacturer shall provide to the
4 consumer, each time the consumer's home medical equipment is
5 returned after being examined or repaired under the warranty,
6 a legible statement of any diagnosis, a description of all
7 work performed, and a list of any parts replaced or repaired.
8 Section 3. Subsections (1) and (4) of section 427.802,
9 Florida Statutes, are amended to read:
10 427.802 Definitions.--As used in this part:
11 (1) "Assistive technology devices" means computer or
12 electrical devices that enable persons with disabilities to
13 provide voice input or receive voice output manual
14 wheelchairs, motorized wheelchairs, motorized scooters,
15 voice-synthesized computer modules, optical scanners, talking
16 software, braille printers, environmental control devices for
17 use by a person with quadriplegia, motor devices that enable
18 persons with disabilities to enter, operate, and exit a
19 vehicle, and vehicle adaptive transportation aids, devices
20 that enable persons with severe speech disabilities to in
21 effect speak, personal transfer systems, and specialty beds,
22 including a demonstrator, that a consumer purchases or accepts
23 transfer of in this state for use by a person with a
24 disability.
25 (4) "Assistive technology device dealer" means a
26 business entity that is primarily engaged in the selling or
27 leasing of assistive technology devices. As used in this
28 subsection, the term "primarily" means no less than 30 percent
29 of the business entity's gross sales in the previous fiscal
30 year.
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1 Section 4. Section 427.803, Florida Statutes, is
2 amended to read:
3 427.803 Duty of manufacturer and an assistive
4 technology device dealer and a manufacturer to conform an
5 assistive technology device to the warranty.--
6 (1) A manufacturer who sells a new assistive
7 technology device to a consumer, either directly or through an
8 assistive technology device dealer, shall furnish the consumer
9 with an express warranty for the assistive technology device.
10 The duration of the express warranty must be at least 1 year
11 after first delivery of the assistive technology device to the
12 consumer. In the absence of an express warranty from the
13 manufacturer, the manufacturer is considered to have expressly
14 warranted to the consumer of an assistive technology device
15 that, for a period of 1 year after the date of first delivery
16 to the consumer, the assistive technology device will be free
17 from any condition or defect that substantially impairs the
18 value of the assistive technology device to the consumer.
19 (2) If an assistive technology device does not conform
20 to the warranty and the consumer first reports the problem to
21 the assistive technology device dealer manufacturer during the
22 Assistive Technology Device Warranty Act rights period, the
23 manufacturer shall make such repairs as are necessary to
24 conform the device to the warranty, irrespective of whether
25 such repairs are made after the expiration of the Assistive
26 Technology Device Warranty Act rights period. Such repairs
27 shall be at no cost to the consumer if reported to the
28 manufacturer or assistive technology device dealer or
29 manufacturer during the Assistive Technology Device Warranty
30 Act rights period. Nothing in this subsection shall be
31 construed to grant an extension of the Assistive Technology
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1 Device Warranty Act rights period or to expand the time within
2 which a consumer must file a complaint under this chapter.
3 (3) Each manufacturer or assistive technology device
4 dealer or manufacturer shall provide to its consumers
5 conspicuous notice of the address and phone number for its
6 zone, district, or regional office for this state in the
7 written warranty or owner's manual. Within 10 days after the
8 department's written request, an assistive technology dealer
9 or a manufacturer shall forward to the department a copy of
10 the owner's manual and any written warranty for each make and
11 model of assistive technology device that it sells in this
12 state.
13 (4) The manufacturer shall provide to the assistive
14 technology device dealer and, At the time of acquisition, the
15 assistive technology device dealer shall provide to the
16 consumer a written statement that explains the consumer's
17 rights under this chapter. The written statement shall be
18 prepared by the department and shall contain a toll-free
19 number for the department that the consumer can contact to
20 obtain information regarding the consumer's rights and
21 obligations under this chapter or to commence arbitration. The
22 consumer's signed acknowledgment of receipt of materials
23 required under this subsection shall constitute prima facie
24 evidence of compliance by the manufacturer and assistive
25 technology device dealer and manufacturer. The form of the
26 acknowledgments shall be approved by the department, and the
27 assistive technology device dealer shall maintain the
28 consumer's signed acknowledgment for 3 years.
29 (5) A manufacturer or An assistive technology device
30 dealer or manufacturer shall provide to the consumer, each
31 time the consumer's assistive technology device is returned
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1 after being examined or repaired under the warranty, a fully
2 itemized, legible statement of any diagnosis made and all work
3 performed on the assistive technology device, including, but
4 not limited to, a general description of the problem reported
5 by the consumer or an identification of the defect or
6 condition and, parts involved and labor, the date on which the
7 assistive technology device was submitted for examination or
8 repair, and the date when the repair or examination was
9 completed.
10 Section 5. Subsection (16) of section 427.8041,
11 Florida Statutes, is amended to read:
12 427.8041 Assistive technology device dealers
13 registration; application; exemption; penalties; adoption of
14 fees and fines; purchase fees.--
15 (16) A $2 fee shall be collected by the assistive
16 technology device dealer or assistive technology device lessor
17 from the consumer at the consummation of the sale or lease of
18 an assistive technology device. Such fees must be remitted
19 monthly to the Department of Revenue. All fees, less the cost
20 of administration, must be transferred monthly to the
21 Department of Agriculture and Consumer Services for deposit
22 into the General Inspection Trust Fund to carry out the
23 provisions of this section. The Department of Agriculture and
24 Consumer Services may use an amount it determines necessary to
25 purchase expert consultation services to assist in carrying
26 out the provisions of this act.
27 Section 6. This act shall take effect upon becoming a
28 law.
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Florida Senate - 2000 SB 2514
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2 SENATE SUMMARY
3 Provides warranty and repair rights for consumers of home
medical equipment and assistive technology devices.
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