- Why is this bill so important to the disability community?
One of the largest consumer law problems affecting people with physical disabilities is wheelchair repair. It is commonplace to be left stranded or isolated in one’s home for weeks, awaiting repairs to wheelchairs under warranty and unable to get to work, school, medical appointments, the grocery store, and other places in the community.
Such durable medical equipment devices are highly specialized, each with their own branded parts, and are sometimes prone to defects and sudden failure. The retail market for wheelchairs has become increasingly concentrated, with a very small number of vendors/distributors controlling the entire marketplace. With competition declining due to market forces, the industry has less economic pressure to provide consumers with disabilities with responsive customer service. Many providers also maintain a low volume of inventory and often do not regularly communicate with consumers about the status of parts that must be ordered.
Wheelchair users need the legislature to level the playing field between providers and consumers, shorten repair wait times, and ensure that those who use wheelchairs are treated with dignity and respect.[1]
- What is wrong with the current law?
- The current repair/lemon law does not adequately protect wheelchair users who are stranded with broken wheelchairs under warranty. For example, in those circumstances, it does not create any timelines for assessing repairs or require dealers to offer loaner wheelchairs within a fixed period of time.
- The current law only provides protection for consumers who pay out of pocket for their wheelchairs. This excludes, for example, protection for MassHealth consumers.
- MA law is significantly weaker than the wheelchair warranty laws in other states.
- The restrictive provisions for invoking warranty protection have shifted repair costs onto public payors and private insurers, increasing financial burdens on those systems and forcing consumers to work with prior approval and medical paperwork requirements associated with those payors.
- The law has been ineffective in incentivizing manufacturers and providers to provide reasonable levels of customer service and has failed to provide consumers with usable remedies to secure repairs or recover their own expenses.
- What is the most serious problem this bill is intended to fix? When wheelchairs are immobile or cannot be used safely, the consumer is stranded and left unable to get to work, school, medical appointments, food shopping, or anywhere else outside of the home. This creates a crisis for that individual and sometimes also for family members. It also has severe implications for the health of wheelchair users who may be subject to pressure ulcers, blood clots, pneumonia, loss of physical function and depression from being confined in bed for prolonged periods.[2]
When this occurs for no reason attributable to the wrongful acts of the consumer, the manufacturer and dealer should stand behind their product.
Under these circumstances, for wheelchairs under warranty, providers and manufacturers should be obligated to assess the wheelchair right away, so that a repair can be done if this is possible, or that parts can be ordered if this is not possible. Instead, consumer typically wait many days or weeks for their wheelchairs to be assessed. Currently, the law provides no specific obligation for the provider or manufacturer to respond promptly.
- What steps are required under this legislation when consumers are at home stranded? When a wheelchair is both defective and inoperable, S.2567 requires that the manufacturer or dealer must assess the wheelchair within 3 business days following notice from the consumer, and provide a temporary loaner wheelchair within 4 business days. If feasible, they must also provide the consumer a time window no greater than 5 hours for the starting time of the assessment.
- Please explain more about loaner wheelchairs. Are those needed or required when a wheelchair breaks down? Some wheelchair users have their own back-up wheelchair. Others may not be able to use a loaner wheelchair. This is partly why it is important that all wheelchairs of stranded consumers be assessed right away and that parts be available and ordered quickly. For consumers that need and are able to use a loaner chair, the bill would require that a loaner wheelchair be furnished within four business days when the wheelchair is inoperable. The current wheelchair repair law does not obligate the dealer to provide a loaner wheelchair. It just assumes the consumer will shoulder this burden and then attempt to seek the costs of doing so from the dealer, when the law otherwise applies.
- Is it reasonable to ask loaner wheelchairs to be provided by the dealer promptly? Massachusetts MassHealth providers are obligated to attempt to supply MassHealth consumers with a loaner, which is comparable in most respects, regardless of the complexity and customization of the wheelchair. 130 CMR sec. 409.420(B) (“The provider must attempt to supply, on a rental basis, properly working substitute equipment that is comparable in most respects to the equipment to be repaired.”).
Similarly, the definition of temporary loaner wheelchair in S. 2567 requires one that is working and able to perform essential functions, but not one that is identical. The concept of requiring a manufacturer to give a loaner wheelchair during repairs is not a new or controversial one. In fact, it is the law in many other jurisdictions, as to both ordinary and CRT manual and power wheelchairs, including Alabama, California, Colorado, Delaware, Hawai’i, Idaho, Iowa, Maine, North Dakota, Ohio, Oregon, Rhode Island and Vermont.
Many of these have response times for providing a loaner wheelchair that are shorter than, or comparable to S. 2567. See, for example, California (when the wheelchair is out of service for 24 hours); Colorado (if out of service for over one day); Oregon (if threat to safety or if out of service for seven (7) days); Rhode Island (same) and Vermont (two (2) business days, unless “extensive custom retrofit” is required, in which case ten(10) days). Again, the four (4) business day timeline only applies when a wheelchair is inoperable.[3]
- Do consumers have the right to repair their own wheelchairs? Not currently. This legislation (both current provisions of S. 2567 and amendments being suggested) would allow consumers to make simple repairs on their own or with qualified assistance (tightening or replacing nuts and bolts, fixing tires, etc.). Such measures should not void the consumer’s warranty. MassHealth is also currently sponsoring a working group with industry representatives and wheelchair users and advocates to create a mobile response unit of trained community-based workers to assist with simple repairs.
- Please provide a list of the changes this bill would make. What does it do?
- Expands the definition of “consumer” in the Customized Wheelchair Lemon Law to include those with full private/public insurance coverage and no out-of-pocket expenses for wheelchairs;
- Sets the minimum warranty length at two years (like our neighboring states of RI and CT), compared to the current one year, and sets the default warranty period to three years if the manufacturer fails to follow these requirements[4];
- Requires manufacturers to publicize notice of these warranty protections to wheelchair consumers (like AZ, DE, and NY). (See also notices for Massachusetts automobile consumers provided in 201 CMR 11.22.)
- Expands the scope of the law to include not only customized wheelchairs, but any wheelchair or other aid that enhances the mobility or positioning of an individual with disability (most states have this type of coverage);
- Expands the definition of “manufacturer” to include dealers with exclusive distribution arrangements with a manufacturer or that are designated by the manufacturer for repairs (like D.C. and VA);
- Requires manufacturers to maintain inventory for all repair and replacement orders for wheelchairs under warranty pursuant to this law, either personally or through subcontractors (similar to the current MassHealth regulations 130 CMR 409.405 (f) and 130 CMR 409.412);
- Provides “lemon law” remedies allowing the return or replacement of the wheelchair when the consumer provides a “reasonable attempt to repair” and the manufacturer or provider still fails to repair the condition. This includes either: 1) two repair attempts with continuing nonconformity (like 16 other states); or 2) twenty-one days out of service with continuing nonconformity, instead of the current rule of four unsuccessful attempts or 30 days out of service);[5]
- Ensures that for the repair of nonconforming wheelchairs, the manufacturer shall provide for the consumer either: (a) a temporary loaner wheelchair; or (b) reimbursement for the cost incurred by the consumer for renting a temporary loaner wheelchair (16 states have some obligation on manufacturers to provide temporary replacement equipment or reimbursement of rental equipment during repairs);
- Provides that when a wheelchair is both defective and inoperable, requiring the manufacturer or an authorized wheelchair dealer to assess the wheelchair within three (3) business days following notice and, if necessary, provide a temporary loaner wheelchair within four (4) business days for the expected duration of repairs provided under the warranty. (States such as CA, CO, OR, RI, and VT all have short or even shorter response times for providing loaner chairs.);
- Expands the “collateral costs” covered for consumers with defective wheelchairs to include shipping costs, transportation costs, out-of-pocket medical expenses (like D.C. AK, IL, IA, and/or OH), as well as lost wages;
- Allows the consumer a reasonable right to repair simple conditions without voiding the warranty;
- Authorizes the Attorney General to bring action under our consumer protection statute [c. 93A] to enforce this law and allows consumers to bring private causes of action under the consumer protection statute, (as is already the case in HI, KS, MD, OH and VT) and makes violations of the law per se “unfair or deceptive acts” (as is the case in MD and KS).
- Requires the Office of Consumer Affairs and Business Regulation to report to the House and Senate Clerks and the Joint Committee on Children, Families, and Persons with Disabilities not later than January 1 of each year on the operational status of the wheelchair alternate arbitration mechanism; and
- Requires the Secretary of the Executive Office of Consumer Affairs and Business Regulation to promulgate regulations as necessary pursuant to this act’s amendments of Chapter 93, section 107 within ninety days of this bill’s passage.
- What about wheelchair problems caused by abuse and neglect? How is that handled? Those are excluded from the warranty, both under existing law and under S. 2567.
- What about wear and tear? How is that handled? This bill does not change the existing law. Both provide that conditions caused by abuse or neglect by the wheelchair consumer are not covered by the warranty. However, if the condition substantially impairs the use, value or safety of the wheelchair and is not caused by abuse or neglect, the manufacturer or provider should be required to repair the condition. It is not reasonable to allow the manufacturer to disregard the warranty and simply claim that the part under warranty has “worn out.”
- How would this bill be enforced? Consumers may use the arbitration mechanism or the consumer protection statute, M.G.L. c. 93A. The existing arbitration process has not been used by any consumer in recent memory, given the deficiencies in the existing statute.
- Why doesn’t current law adequately protect consumers? Is this bill fair to the wheelchair industry?
As a result of Medicare competitive bidding, mergers and acquisitions, and other factors, there has been a radical consolidation within the industry. There is now almost a “duopoly” of only two national dealers/providers who service MassHealth wheelchair customers in the Commonwealth. Moreover, practically speaking, that provider may be selected by the rehabilitation facility and not the consumer. This means the free market is working inefficiently, there is little consumer bargaining power and increasingly, very poor customer service.
In addition to the lack of competition in the marketplace, there are two other causes of low consumer bargaining power. First, as to warranty protection, there is very little effective regulation. Low-income consumers lack the resources to enforce the current inadequate warranty provisions or fall outside of their scope. Despite the very high volume of complaints, we receive about new or relatively new broken wheelchairs, to our knowledge there have been no cases brought to arbitration under the current wheelchair lemon law. The law does not apply when wheelchairs were paid for by MassHealth and Medicare and the existing consumer protections are sorely inadequate. Second, the demand for wheelchairs is inherently inelastic. If gas prices increase, some consumers who drive may place downward pressure on prices by taking public transit, sharing rides, walking or biking. Most wheelchair users have no alternative means of mobility.
The provisions in S. 2567 are largely similar to the wheelchair warranty provisions found in many other states. They are intended to require manufacturers and providers to prioritize the repairs of wheelchair consumers who are stranded in their homes. To incentivize manufacturers and providers to respond quickly, the bill provides that the financial costs of being isolated and immobile should not be borne entirely by the consumer when the repairs are covered by warranty. In addition, when the manufacturer or provider has been unable to fix the same re-occurring problem within a reasonable period, after multiple attempts, the consumer should be able to use lemon law remedies to secure a replacement or refund.
- How can I hear firsthand the stories of consumers who have had problems with wheelchair repair, including people stranded at home? The committee hearing may be accessed at https://fb.watch/702k6idhZ4/ (Listen starting at the 2 hr. and 17-minute mark).
- Are these problems well known? These problems are commonly experienced by wheelchair users, especially people who use power wheelchairs and have been frequently reported in the media.[6]
- The wheelchair industry says the problem is the prior approval process and the need for medical documentation. Is that right? Not really. Repairs that are covered by a warranty are, by definition, not subject to prior approval and medical documentation requirements.
Prior approval is a serious problem for another day, and would require reforms to Medicare and other systems not easily under the control of the Massachusetts legislature.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Additional Amendments Recommended for S. 2567:
(see track-changed version)
- Clarify the meaning of “inoperable.”
- Adopt more precise language for the right to repair versus unauthorized misuse in the nonconformity definition and elsewhere in the bill.
- Use more precise definitions of “temporary loaner wheelchair” versus replacement wheelchair;
- Include provision clarifying that warranty continues if provider/manufacturer have not repaired after receiving notice during warranty period.
- Allow for alternative notice of warranty that consumer is able to access (in lieu of “understand”).
- Provide for public payors or insurance companies to be reimbursed if there is a refund.
[1] In a Disability Law Center (DLC) survey of 85 wheelchair consumers, 36% said their repairs were not done correctly. 45% reported a delayed response time for the vendor and 40% reported having trouble getting status reports from their vendor.
[2] See e.g., literature published by Lynn Worobey, Ph.D. a professor and researcher in the Department of Physical Medicine and Rehabilitation at human engineering research laboratories at the University of Pittsburgh, including Wheelchair Breakdowns Are Associated with Pain, Pressure Injuries, Rehospitalization, and Self-Perceived Health in Full-Time Wheelchair Users With Spinal Cord Injury. Hogaboom NS, Worobey LA, Houlihan BV, Heinemann AW, Boninger ML., Arch Phys Med Rehabil. 2018 Oct; 99(10):1949-1956. According to a 2016 study by Worobey, in just a six month period, 64% of wheelchair users reported needing at least one repair during that period, of which 28% reported having at least one of these “adverse consequences” happen to them during that period, 18% reported getting stranded due to their wheelchair malfunctioning during that period, and 7% reported not being able to have their wheelchair repaired at all. Worobey, Lynn et al., Type and Frequency of Reported Wheelchair Repairs and Related Adverse Consequences Among People With Spinal Cord Injury at 1755, Archives of Physical Medicine & Rehabilitation, American Congress of Rehabilitation Medicine (2016).
[3] Automobile manufacturers and dealers often have loaner provisions that are more generous, even though wheelchairs may cost more than new automobiles, and wheelchair consumers are far more reliant on their devices. Most likely this is because of a much higher degree of marketplace competition in the automobile industry. Toyota, for example, provides a three year warranty on new cars and provides a loaner vehicle at no charge whenever the automobile cannot be repaired the same day.
[4] Providing for a possible extension of the warranty period encourages dealers to comply with the notice requirement and educate consumers, without the cost of governmental oversight. It is used in at least one other wheelchair warranty law. In addition, the Massachusetts automobile lemon law requires that the warranty period be tolled entirely when the dealer fails to provide notice of the warranty. G. L. c. 90, sec. 7N ¼ (4).
[5] The current Massachusetts automobile lemon law provides for relief after three or more attempts or 15 more days out of service. G.L.c. 90 sec 7N ½. It is difficult to understand why a higher burden is placed upon wheelchair consumers given the comparable complexity of components in automobiles and the dependence of wheelchair consumers on their wheelchairs in order to leave their homes and go to work, school or elsewhere in the community.
[6] Examples of media coverage include, https://www.wcvb.com/article/woburn-massachusetts-man-with-cerebral-palsy-has-been-waiting-9-weeks-to-get-his-wheelchair-fixed/36283445# (April 29, 2021) (Story of Woburn man with cerebral palsy, stranded with a heavy broken motorized wheelchair being pushed by his 77 year old mother for nine (9) weeks, with the problem apparently only resolved after WCVB 5 TV contacted the provider.) and a recent two part series by WBUR, https://www.wbur.org/news/2022/03/10/massachusetts-consumer-protection-wheelchair and https://www.wbur.org/news/2022/03/09/massachusetts-broken-wheelchair-disability-mobility-explainer
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The Disability Law Center (DLC) is pleased to announce Barbara L’Italien as the organization’s new Executive Director. DLC is the Commonwealth’s Protection and Advocacy agency for persons with disabilities.