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Lemon Laws Pass in 38 States

Assistive technology for a person with disabilities is often an integral part of that person's ability to work, communicate, and live independently. When the technology does not work or breaks down, the individual loses these abilities. The cost of assistive technology can range from a few dollars up to thousands of dollars. Yet, not all assistive technology devices are covered by a manufacturer's warranty. Some devices that carry a purchase tag of thousands of dollars carry only a 90-day or 6-month warranty. Therefore, there is a need to have consumer protection laws in place to guard against "lemons" being sold and or bought.

Thirty-eight Tech Act projects have worked with the consumers in their States to pass assistive technology "lemon," or warranty legislation to protect consumers against assistive technology with substantial or continuing defects. Table 1 summarizes legislation in the 38 states.

Type of AT Covered

The Louisiana New Assistive Device Warranty Act was the first law enacted that many states have used as a model to draft legislation for their own states. It is a comprehensive law that applies to all assistive devices. Twenty-five other states' lemon laws provide coverage for all types of assistive technology. To contrast, in 11 states, legislatures have passed some form of limited warranty protections for wheelchairs, scooters, and other mobility devices.

All lemon laws passed are intended to apply to new devices. Some state laws also cover devices that are leased, such as the Rhode Island law. California's law covers used assistive technology sold at retail. There may be a dollar limit on the type of device covered. For example, the Georgia law only covers devices with a retail cost of $1,000 or more. In Maryland, only mobility devices over $500 are covered.

What is a Lemon?

Lemons are usually defined as those devices with a substantial defect. If the device has either broken a certain number of times for the same reason within a set period of time or has been out of service a certain number of days for any reason within a set time period, it qualifies as a non-conforming or substantially defective device. Most of the states have the requirement that a device qualifies as a lemon if it has been repaired 2-4 times for the same reason or has been out of service for 30 cumulative days for any reason.

Lemon law warranties do not include defects that result from misuse or alterations by the customer. Nor do they include custom fittings and adjustments for such items as hearing aids and seating systems.

Warranties

If after reasonable attempts to repair a device, the device is still not fixed, then at the consumers option, the consumer can get a full refund of the purchase price or a replacement. The warranties usually come with time limits, normally one year from the date of delivery, not purchase date. This distinction between purchase data and delivery date is important because some consumers wait weeks or months for actual delivery of the device.

Lemon laws provide reimbursements for expenses incurred by the consumer in connection with the repair of a defective device, including the cost of obtaining an alternative wheelchair or other assistive device for mobility as well as any damages, fees, costs or other "equitable relief." Most have the provision that it is the manufacturer's responsibility to provide a loaner replacement device or reimburse for a temporary replacement of assistive devices for the duration of the repair period.

Additional Protections

Some states have additional warranty protections. The Minnesota law protects the rights of people with disabilities in the purchase of assistive technology devices but does not alter any warranty that may offer greater protection. Rhode Island's law extends its state's Uniform Commercial Code to assistive devices. A state's UCC contains laws governing certain commercial transactions, including sales and leases. With the extension of Rhode Island's UCC to assistive technology, there now is assurance that an AT device is fit for its ordinary purposes and that it is fit for the user's disability-related needs when the dealer is informed of those needs.

The California law includes a provision that all new and used assistive technology sold at retail in California may be returned to the seller within 30 days of actual receipt by the consumer or completion of fitting by the seller, whichever occurs later. Maine's law is similar in that it allows an additional 30 day trial period for which a consumer may return an assistive device to the dealer and receive a full refund.

State laws usually prohibit the resale of returned defective devices without full disclosure by the manufacturer of the nonconformity or defect.

The New York law provides for an alternative arbitration program for disputes that is less complicated, time consuming, and expensive than choosing to go to court. Under the arbitration program, a consumer who does not have all the documents required to substantiate a lemon claim, may request the arbitrator to direct the manufacturer to provide necessary information or to subpoena documents or witnesses. In the information guide about the lemon law, the New York Tech Act Project urges consumers to keep careful records of all complaints and copies of all work orders, repair bills, and correspondence. The consumer has the burden of proving he/she owns a lemon and must have documentation of repeated attempts to have it repaired.

Issues and Concerns

Assistive technology lemon laws have met with some resistance by the hearing aid industry. This industry has voiced concerns about routine fitting and adjustments being misinterpreted as "repairs." This is a concern for all types of customized assistive technology, not just hearing aids. A statutory clarification may need to be added to the laws to address this issue. States that have just recently passed lemon laws have been adding clarifying language so that fittings are not considered repairs.

Maine and Connecticut are two states that have exempted hearing aids from lemon law coverage. Hearing aids are exempted because they are considered to be custom manufactured products dispensed by licensed professionals, rather than purchased over the counter, similar to eyeglasses and contacts, which are also exempted from this legislation.

In Virginia, advocates of the bill were able to enlist the support of their hearing aid industry representatives once it was determined that no federal level protection existed and thus it was needed at the state level.

Another issue that the hearing aid industry has raised is how to determine the refund amount for a defective hearing aid when the full purchase price includes not only the device but labor costs associated with other services, such as fitting and training. One suggestion for remedying refund determinations would be to address this by regulation and have the enforcement agency or arbitrator determine the full price to be refunded.

Effects of Legislation

Successful introduction and passage of assistive technology lemon laws has produced new legislation in 37 states, with legislation pending in three
additional states. These laws encourage the manufacture of quality products and give consumers protections through warranties. These efforts have also given a host of grassroots consumer groups in states the opportunity to organize around a consumer rights issue that focuses on technology. This action has often built coalitions to work on other assistive technology issues in the state.

The effect of the lemon laws themselves is hard to measure. Consumers do feel more secure, knowing
that they do not have to shoulder the financial burden of substantially defective products that they purchase. However, the actual impact of lemon laws is difficult to track because there are not many reported cases applying and interpreting the lemon laws. A primary benefit of these laws is the leverage that they provide to consumers in negotiations with suppliers. Through the education efforts of Tech Act Projects, consumers are aware of these new protections and can use them if necessary.


Table 1. Assistive Technology Lemon Laws


State: AK
Title of Act: Warranties for Assistive Technology and Mobility Aids Act
Year: 1998
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times within 1st year
-OR- The AT Must Be Out of Service for: 30 days cumulative

State: AZ
Title of Act: Assistive Devices Warranties Act
Year: 1998
Types of AT Covered: all assistive devices, except hearing aids
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times within 1st year
-OR- The AT Must Be Out of Service for: 30 days cumulative

State: CA
Title of Act: Assistive Technology Warranty Protection Act
Year: 1994
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason
-OR- The AT Must Be Out of Service for: 30 days, any reason

State: CO
Title of Act: Wheelchair Lemon Law
Year: 1997
Types of AT Covered: wheelchairs only
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times for the same reason within 1st year
-OR- The AT Must Be Out of Service for: 10 consecutive days out of service

State: CT
Title of Act: Act Concerning the Security of Assistive Technology Devices
Year: 1997
Types of AT Covered: all assistive technology
(except hearing aids)
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times
-OR- The AT Must Be Out of Service for: 30 days

State: FL
Title of Act: Assistive Technology Device Warranty Act
Year: 1997
Types of AT Covered: motorized wheelchairs, motorized scooters, optical scanners, environmental control units, braille printers, and other technology listed in the law
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: GA
Title of Act: Assistive Technology Warranty Act
Year: 1993
Types of AT Covered: assistive technology costing $1,000 or more
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason
-OR- The AT Must Be Out of Service for: 30 days, any reason

State: HI
Title of Act: Assistive Technology Warranty Act
Year: 1997
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: ID
Title of Act: Assistive Technology Warranty Act
Year: 1997
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: IA
Title of Act: Assistive Device Warranty Act
Year: 1998
Types of AT Covered: all assistive technology except hearing aids, which have a 1 year warranty
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: KS
Title of Act: Assistive Technology Lemon Law

Year: 1996
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: LA
Title of Act: New Assistive Devices Warranty Act
Year: 1993
Types of AT Covered: all assistive technology (any cost)
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times for the same reason within the 1st year
-OR- The AT Must Be Out of Service for: 30 days, any reason within the 1st year

State: ME
Title of Act: Act to Provide a Warranty for Assistive Devices for Persons With Disabilities
Year: 1997
Types of AT Covered: all assistive technology (except hearing aids)
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 or more times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: MA
Title of Act: Warranty of Customized Wheelchairs
Year: 1996
Types of AT Covered: customized wheelchairs
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times
-OR- The AT Must Be Out of Service for: 30 days

State: MD
Title of Act: Motorized Wheelchair Warranty Enforcement Act
Year: 1994
Types of AT Covered: motorized wheelchairs and scooters
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason
-OR- The AT Must Be Out of Service for: 30 days (do not have to be consecutive), any reason within the 1st year

State: MI
Title of Act: Wheelchair Lemon Law
Year: 1994
Types of AT Covered: motorized wheelchairs, manual wheelchairs, and scooters
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason
-OR- The AT Must Be Out of Service for: 30 days within the lst year

State: MN
Title of Act: Assistive Device Warranty Protection Act
Year: 1995
Types of AT Covered: all assistive technology except electrical nerve simulators
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times or the same reason
-OR- The AT Must Be Out of Service for: over 30 days within the 1st year

State: MO
Title of Act: Assistive Technology Lemon Law
Year: 1995
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times
-OR- The AT Must Be Out of Service for: 30 days

State: MT
Title of Act: Wheelchair Warranty Act
Year: 1995
Types of AT Covered: manually powered wheelchairs, motorized wheelchairs, and scooters costing $500 or more
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times for the same reason
-OR- The AT Must Be Out of Service for: 45 days

State: NE
Title of Act: Assistive Technology Regulation Act
Year: 1997
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: NV
Title of Act: Assistive Technology Warranty Act
Year: 1997
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 or more times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: NJ
Title of Act: Wheelchair Warranty Act
Year: 1995
Types of AT Covered: motorized wheelchairs
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times for the same reason
-OR- The AT Must Be Out of Service for: 20 Days

State: NM
Title of Act: Assistive Device Lemon Law
Year: 1998
Types of AT Covered: assistive devices used for major life activities
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: NY
Title of Act: Motorized Wheelchair Lemon Law
Year: 1993
Types of AT Covered: motorized wheelchairs
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason AND was out of service for 30 days within the 1st year
-OR- The AT Must Be Out of Service for: 60 days, for the same reason within the 1st year

State: ND
Title of Act: Assistive Technology Warranty Act
Year: 1997
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times
-OR- The AT Must Be Out of Service for: 30 days

State: OH
Title of Act: AT Lemon Law
Year: 1996
Types of AT Covered: all assistive technology over $500
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times over a 1 year period
-OR- The AT Must Be Out of Service for: 45 cumulative days out of service

State: OK
Title of Act: Defective Assistive Device Act
Year: 1996
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times
-OR- The AT Must Be Out of Service for: 30 cumulative days

State: OR
Title of Act: Wheelchair Warranty Act
Year: 1997
Types of AT Covered: wheelchairs only
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times for the same reason
-OR- The AT Must Be Out of Service for: 30 days

State: PA
Title of Act: Motorized Wheelchair Warranty Act
Year: 1994
Types of AT Covered: motorized wheelchairs
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason
-OR- The AT Must Be Out of Service for: at least "an aggregate of" 30 days

State: PR
Title of Act: Assistive Technology Consumer Guarantees Law

Year: 1998
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times`
-OR- The AT Must Be Out of Service for: 45 days

State: RI
Title of Act: Assistive Technology Device Warranties Act
Year: 1995
Types of AT Covered: all new assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: more than 2 times within first 2 years
-OR- The AT Must Be Out of Service for: 30 days

State: SC
Title of Act: Assistive Technology Warranty Act
Year: 1998
Types of AT Covered: any assistive technology over $300, excludes hearing aids
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times
-OR- The AT Must Be Out of Service for: 30 days

State: SD
Title of Act: Protection to Consumers Who Own or Lease Assistive Devices
Year: 1996
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 2 times
-OR- The AT Must Be Out of Service for: 30 days

State: UT
Title of Act: Assistive Technology Warranty Act
Year: 1997
Types of AT Covered: all assistive technology over $1,000 used for a major life activity
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times for the same reason
-OR- The AT Must Be Out of Service for: an aggregate of 30 or more days

State: VA
Title of Act: Assistive Technology Device Warranties Act
Year: 1998
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 or more times for the same reason
-OR- The AT Must Be Out of Service for: 30 days cumulative

State: WA
Title of Act: Wheelchair Warranties Act
Year: 1994
Types of AT Covered: motorized and nonmotorized wheelchairs
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason
-OR- The AT Must Be Out of Service for: 30 days, any reason

State: WI
Title of Act: Motorized Wheelchair Warranty Act
Year: 1992
Types of AT Covered: motorized wheelchairs
To Qualify as a "Lemon," the AT Must Have Been Repaired: 4 times for the same reason
-OR- The AT Must Be Out of Service for: 30 days, any reason

State: WV
Title of Act: Assistive Device Consumer Protection Act
Year: 1998
Types of AT Covered: all assistive technology
To Qualify as a "Lemon," the AT Must Have Been Repaired: 3 times, any reason
-OR- The AT Must Be Out of Service for: 30 days cumulative, any reason