HOUSE AMENDMENT
                                                  Bill No. HB 1449
    Amendment No. ___ (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  The Council for Competitive Commerce offered the following:
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13         Amendment (with title amendment) 
14         On page 2 of the bill, between lines 9 & 10,
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16  insert:  
17         Section 1.  Subsection (8) of section 400.925, Florida
18  Statutes, is amended to read:
19         400.925  Definitions.--As used in this part, the term:
20         (8)  "Home medical equipment" includes any product as
21  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. Home medical equipment
31  includes assistive technology devices, including manual
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    File original & 9 copies    04/18/01                          
    hag0009                     03:55 pm         01449-ccc -650759

HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 wheelchairs, motorized wheelchairs, motorized scooters, 2 voice-synthesized computer modules, optical scanners, talking 3 software, braille printers, environmental control devices for 4 use by persons with quadriplegia, motor vehicle adaptive 5 transportation aids, devices that enable persons with severe 6 speech disabilities to in effect speak, personal transfer 7 systems, and specialty beds, including a demonstrator for use 8 by a person with a medical need. 9 Section 2. Section 427.802, Florida Statutes, is 10 amended to read: 11 427.802 Definitions.--As used in this part: 12 (1) "Assistive technology devices" means manual 13 wheelchairs, motorized wheelchairs, motorized scooters, 14 voice-synthesized computer modules, optical scanners, talking 15 software, braille printers, environmental control devices for 16 use by a person with quadriplegia, motor vehicle adaptive 17 transportation aids, devices that enable persons with severe 18 speech disabilities to in effect speak, personal transfer 19 systems, and specialty beds, including a demonstrator, that a 20 consumer purchases or accepts transfer of in this state for 21 use by a person with a disability. 22 (2) "Assistive Technology Device Warranty Act rights 23 period" means the period ending 1 year after first delivery of 24 the assistive technology device to the consumer or the 25 manufacturer's express written warranty, whichever is longer. 26 (2)(3) "Person with a disability" means any person who 27 has one or more permanent physical or mental limitations that 28 restrict his or her ability to perform the normal activities 29 of daily living and impede his or her capacity to live 30 independently. 31 (3)(4) "Assistive technology device dealer" means a 2 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 person who is business entity that is primarily engaged in the 2 business of selling or leasing of assistive technology 3 devices. As used in this subsection, the term "primarily" 4 means no less than 30 percent of the business entity's gross 5 sales in the previous fiscal year. 6 (4)(5) "Assistive technology device lessor" means a 7 person who leases an assistive technology device to a 8 consumer, or holds the lessor's rights, under a written lease. 9 (5)(6) "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 assistive 12 technology device. 13 (6)(7) "Consumer" means any of the following: 14 (a) The purchaser of an assistive technology device, 15 if the assistive technology device was purchased from an 16 assistive technology device dealer or manufacturer for 17 purposes other than resale. 18 (b) A person to whom the assistive technology device 19 is transferred for purposes other than resale, if the transfer 20 occurs before the expiration of an express warranty applicable 21 to the assistive technology device. 22 (c) A person who may enforce the warranty. 23 (d) A person who leases an assistive technology device 24 from an assistive technology device lessor under a written 25 lease. 26 (7)(8) "Demonstrator" means an assistive technology 27 device used primarily for the purpose of demonstration to the 28 public. 29 (9) "Department" means the Department of Agriculture 30 and Consumer Services. 31 (8)(10) "Early termination cost" means any expense or 3 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 obligation that an assistive technology device lessor incurs 2 as a result of both the termination of a written lease before 3 the termination date set forth in that lease and the return of 4 an assistive technology device to a manufacturer pursuant to 5 this section. The term includes a penalty for prepayment 6 under a financial arrangement. 7 (9)(11) "Early termination saving" means any expense 8 or obligation that an assistive technology device lessor 9 avoids as a result of both the termination of a written lease 10 before the termination date set forth in the lease and the 11 return of an assistive technology device to a manufacturer 12 pursuant to this section. The term includes an interest 13 charge that the assistive technology device lessor would have 14 paid to finance the assistive technology device or, if the 15 assistive technology device lessor does not finance the 16 assistive technology device, the difference between the total 17 amount for which the lease obligates the consumer during the 18 period of the lease term remaining after the early termination 19 and the present value of that amount at the date of the early 20 termination. 21 (10)(12) "Manufacturer" means a business entity that 22 manufactures or produces assistive technology devices for sale 23 and agents of that business entity, including an importer, a 24 distributor, a factory branch, a distributor branch, and any 25 warrantors of the manufacturer's assistive technology device, 26 but not including an assistive technology device dealer. 27 (11)(13) "Nonconformity" means a condition or defect 28 of an assistive technology device which substantially impairs 29 the use, value, or safety of the device and which is covered 30 by an express warranty applicable to the assistive technology 31 device, but does not include a condition or defect that is the 4 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 result of abuse, neglect, excessive wear, or unauthorized 2 modification or alteration of the assistive technology device 3 by a consumer. 4 (12)(14) "Reasonable attempt to repair" means, within 5 the terms of an express warranty applicable to a new assistive 6 technology device: 7 (a) A maximum of three efforts by the manufacturer, 8 the assistive technology device lessor, or any of the 9 manufacturer's authorized assistive technology device dealers 10 to repair a nonconformity that is subject to repair under the 11 warranty; or 12 (b) The passage of at least 30 cumulative days during 13 which the assistive technology device is out of service 14 because of a nonconformity that is covered by the warranty. 15 Section 3. Section 427.803, Florida Statutes, is 16 amended to read: 17 427.803 Express Duty of manufacturer and an assistive 18 technology device dealer to conform an assistive technology 19 device to the warranty.-- 20 (1) A manufacturer who sells a new assistive 21 technology device to a consumer, either directly or through an 22 assistive technology device dealer, shall furnish the consumer 23 with an express warranty for the assistive technology device. 24 The duration of the express warranty must be at least 1 year 25 after first delivery of the assistive technology device to the 26 consumer. In the absence of an express warranty from the 27 manufacturer, the manufacturer is considered to have expressly 28 warranted to the consumer of an assistive technology device 29 that, for a period of 1 year after the date of first delivery 30 to the consumer, the assistive technology device will be free 31 from any condition or defect that substantially impairs the 5 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 value of the assistive technology device to the consumer. 2 (2) If an assistive technology device does not conform 3 to the warranty and the consumer first reports the problem to 4 the manufacturer during the Assistive Technology Device 5 Warranty Act rights period, the manufacturer shall make such 6 repairs as are necessary to conform the device to the 7 warranty, irrespective of whether such repairs are made after 8 the expiration of the Assistive Technology Device Warranty Act 9 rights period. Such repairs shall be at no cost to the 10 consumer if reported to the manufacturer or assistive 11 technology device dealer during the Assistive Technology 12 Device Warranty Act rights period. Nothing in this subsection 13 shall be construed to grant an extension of the Assistive 14 Technology Device Warranty Act rights period or to expand the 15 time within which a consumer must file a complaint under this 16 chapter. 17 (3) Each manufacturer or assistive technology device 18 dealer shall provide to its consumers conspicuous notice of 19 the address and phone number for its zone, district, or 20 regional office for this state in the written warranty or 21 owner's manual. Within 10 days after the department's written 22 request, a manufacturer shall forward to the department a copy 23 of the owner's manual and any written warranty for each make 24 and model of assistive technology device that it sells in this 25 state. 26 (4) The manufacturer shall provide to the assistive 27 technology device dealer and, at the time of acquisition, the 28 assistive technology device dealer shall provide to the 29 consumer a written statement that explains the consumer's 30 rights under this chapter. The written statement shall be 31 prepared by the department and shall contain a toll-free 6 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 number for the department that the consumer can contact to 2 obtain information regarding the consumer's rights and 3 obligations under this chapter or to commence arbitration. The 4 consumer's signed acknowledgment of receipt of materials 5 required under this subsection shall constitute prima facie 6 evidence of compliance by the manufacturer and assistive 7 technology device dealer. The form of the acknowledgments 8 shall be approved by the department, and the assistive 9 technology device dealer shall maintain the consumer's signed 10 acknowledgment for 3 years. 11 (5) A manufacturer or an assistive technology device 12 dealer shall provide to the consumer, each time the consumer's 13 assistive technology device is returned after being examined 14 or repaired under the warranty, a fully itemized, legible 15 statement of any diagnosis made and all work performed on the 16 assistive technology device, including, but not limited to, a 17 general description of the problem reported by the consumer or 18 an identification of the defect or condition, parts and labor, 19 the date on which the assistive technology device was 20 submitted for examination or repair, and the date when the 21 repair or examination was completed. 22 Section 4. Section 427.804, Florida Statutes, is 23 amended to read: 24 427.804 Repair of nonconforming assistive technology 25 devices; refund or replacement of devices after attempt to 26 repair; sale or lease of returned device; arbitration; 27 investigation; limitation of rights.-- 28 (1) If a new assistive technology device does not 29 conform to an applicable express warranty and the consumer 30 reports the nonconformity to the manufacturer, the assistive 31 technology device lessor, or any of the manufacturer's 7 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 authorized assistive technology device dealers and makes the 2 assistive technology device available for repair within 1 year 3 after first delivery or return of the assistive technology 4 device to the consumer, the nonconformity must be repaired at 5 no charge to the consumer. 6 (2) If, after a reasonable attempt to repair, the 7 nonconformity is not repaired, the manufacturer, at the 8 direction of a consumer as defined in s. 427.802(6)(7)(a)-(c), 9 must do one of the following: 10 (a) Accept return of the assistive technology device 11 and replace the assistive technology device with a comparable 12 new assistive technology device and refund any collateral 13 costs. 14 (b) Accept return of the assistive technology device 15 and refund to the consumer and to any holder of a perfected 16 security interest in the consumer's assistive technology 17 device, as the interest may appear, the full purchase price 18 plus any finance charge amount paid by the consumer at the 19 point of sale, and collateral costs. 20 (c) With respect to a consumer as defined in s. 21 427.802(6)(7)(d), accept return of the assistive technology 22 device, refund to the assistive technology device lessor and 23 to any holder of a perfected security interest in the 24 assistive technology device, as the interest may appear, the 25 current value of the written lease, and refund to the consumer 26 the amount that the consumer paid under the written lease plus 27 any collateral costs. 28 (3) The current value of the written lease equals the 29 total amount for which the lease obligates the consumer during 30 the period of the lease remaining after its early termination 31 plus the assistive technology device dealer's early 8 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 termination costs and the value of the assistive technology 2 device at the lease expiration date if the lease sets forth 3 the value, less the assistive technology device lessor's early 4 termination savings. 5 (4) To receive a comparable new assistive technology 6 device or a refund due under paragraph (2)(a), a consumer must 7 offer to the manufacturer of the assistive technology device 8 having the nonconformity to transfer possession of the 9 assistive technology device to the manufacturer. No later 10 than 30 days after the offer, the manufacturer shall provide 11 the consumer with the comparable assistive technology device 12 or refund. When the manufacturer provides the comparable 13 assistive technology device or refund, the consumer shall 14 return the assistive technology device having the 15 nonconformity to the manufacturer, along with any endorsements 16 necessary to transfer real possession to the manufacturer. 17 (5) To receive a refund due under paragraph (2)(b), a 18 consumer must offer to return the assistive technology device 19 having the nonconformity to its manufacturer. No later than 20 30 days after the offer, the manufacturer shall provide the 21 refund to the consumer who paid for, or the provider who 22 billed a third party payor source for, the assistive 23 technology device. When the manufacturer provides the refund, 24 the consumer shall return to the manufacturer the assistive 25 technology device having the nonconformity. 26 (6) To receive a refund due under paragraph (2)(c), an 27 assistive technology device lessor must offer to transfer 28 possession of the assistive technology device having the 29 nonconformity to its manufacturer. No later than 30 days 30 after the offer, the manufacturer shall provide the refund to 31 the assistive technology device lessor. When the manufacturer 9 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 provides the refund, the assistive technology device lessor 2 shall provide to the manufacturer any endorsements necessary 3 to transfer legal possession to the manufacturer. 4 (7) A person may not enforce the lease against the 5 consumer after the consumer receives a refund due under 6 paragraph (2)(c). 7 (8) An assistive technology device that is returned by 8 a consumer or assistive technology device lessor in this 9 state, or by a consumer or assistive technology device lessor 10 in another state under a similar law of that state, may not be 11 sold or leased again in this state, unless full disclosure of 12 the reasons for return is made to any prospective buyer or 13 lessee. 14 (9) Each consumer may submit any dispute arising under 15 this part to the department by completing a complaint form. 16 The department may investigate the complaint on behalf of the 17 consumer if reasonable evidence warrants such an action. 18 (10) The department shall process consumer complaints 19 pursuant to s. 570.544. 20 (9)(11) Each consumer may submit any dispute arising 21 under this part to an alternative arbitration mechanism 22 established pursuant to chapter 682. Upon notice by the 23 consumer, all manufacturers must submit to such alternative 24 arbitration. 25 (10)(12) Such alternative arbitration must be 26 conducted by a professional arbitrator or arbitration firm 27 appointed under chapter 682 and any applicable rules. These 28 procedures must provide for the personal objectivity of the 29 arbitrators and for the right of each party to present its 30 case, to be in attendance during any presentation made by the 31 other party, and to rebut or refute such a presentation. 10 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759
HOUSE AMENDMENT Bill No. HB 1449 Amendment No. ___ (for drafter's use only) 1 (11)(13) This part does not limit rights or remedies 2 available to a consumer under any other law. 3 Section 5. Section 427.8041, Florida Statutes, is 4 repealed. 5 6 7 ================ T I T L E A M E N D M E N T =============== 8 And the title is amended as follows: 9 On page 1, line 2 after the semicolon, 10 11 insert: 12 amending s. 400.925, F.S.; revising definitions 13 with respect to home medical equipment; 14 amending s. 427.802, F.S.; revising definitions 15 with respect to home medical equipment 16 providers; amending s. 427.803, F.S.; revising 17 warranty requirements under the Assistive 18 Technology Device Warranty Act; providing for 19 express warranties; amending s. 427.804, F.S.; 20 conforming references; deleting investigation 21 and complaint processing requirements of the 22 Department of Agriculture and Consumer 23 Services; repealing s. 427.8041, F.S., relating 24 to regulation requirements with respect to 25 assistive technology device dealers; 26 27 28 29 30 31 11 File original & 9 copies 04/18/01 hag0009 03:55 pm 01449-ccc -650759