Volume 13, No. 2, Spring 2005	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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New AT Lemon Law Aids
Purchasers of AT

Laura Waterland, Senior Attorney, Disabilities Law Program

Assistive technology (AT) can mean the difference between independence and isolation, community living and institutional living. AT can be expensive, too.1 And, in some unfortunate circumstances, it can be defective. Like any consumer, a person with disabilities purchasing AT can get stuck with a "lemon"—a new piece of equipment that just does not work.

Until recently, people buying AT were truly stuck. Most equipment came with no warranty or maybe a 90-day limited warranty, if they were lucky. As of June 29, 2004, purchasers of AT in Delaware have the protection of the Assistive Technology Device Warranties and Consumer Protection Act.2 This law is conceptually similar to auto lemon laws that protect new car buyers when they purchase cars with substantial irreparable defects.

Many states have passed AT Lemon Laws.3 Louisiana passed the first AT Lemon Law and it has been used as a model for many states, including Delaware.4 Louisiana's comprehensive law covers not only wheelchairs but all types of assistive devices, including, without limitation, computer technology, environmental controls, and hearing aids. Other states, such as Maryland, have more limited protections for wheelchairs only. Unfortunately, the hearing aid manufacturers and sellers have been successful in some states in getting hearing aids excluded from these laws. The Delaware AT law does apply to hearing aids.

Lemon laws do have certain limitations. The protections only extend to new equipment. In Delaware, the law covers new equipment, leased equipment, customized equipment, and demonstrators that are then sold. Assistive technology is defined to include “any item, piece of equipment, or product system designed and used to increase, maintain, or improve the functional capabilities of individuals.”5 The law includes a non-exhaustive list of possible AT that is covered: manual and power wheelchairs and other mobility equipment; hearing aids; telephone communication devices; and other communication technology; computer equipment for individuals who are visually impaired and those with communication disabilities; environmental control units; and any mechanical aid that increases, maintains, or improves the functional capabilities or health and safety of an individual with disabilities.

The law extends to a system as a whole, and to its components. So, for example, if you purchase a power chair with a customized seat that the supplier has purchased from a different manufacturer, the chair is covered, as is the seat. Not all equipment is covered—remember it has to be designed and used to increase or maintain function for people with disabilities. The law would not cover an electric toothbrush, unless the toothbrush was specifically designed for people with disabilities.

Generally, manufacturers are not required to give express warranties that their goods are not defective, or that they will back up their products, absent some statute that requires them to do so.6 The Delaware AT Lemon Law requires manufacturers who sell or lease new AT to supply a minimum one-year warranty that the AT device will be free from any defect or condition that substantially impairs the use, value, or safety of the AT device.7 If the manufacturer does not give the express warranty at the time of lease or sale, then the statute imputes one. Do not be discouraged if the documents of sale do not include a written warranty. Your new device has a warranty of one year even if the manufacturer does not say so in writing. Also, a consumer cannot waive his rights under this statute. Any waiver of rights that a manufacturer might try to obtain from a buyer is void.

So, what does a consumer do if he has bought AT that is not working? First, it must be clear that the device suffers from a "nonconformity," meaning a specific or generic condition, defect, or malfunction that substantially impairs the use, value, or safety of the device. Please note that the law covers substantial defects, not minor ones that do not prevent the item from working as intended.

Second, the consumer must make the manufacturer or its authorized dealer aware of the nonconformity and tender the device to the manufacturer or dealer for repair twice, or the device must be out of service for an aggregate of 30 cumulative days because of a nonconformity that has been reported to the manufacturer or dealer. This process is called "a reasonable opportunity to repair."

A caveat—the defect must be reported and the manufacturer given an opportunity to repair a nonconformity within one year of delivery of the item. The Delaware AT Lemon Law only covers the first year after delivery. Beyond one year, other remedies may be available, such as a claim under the UCC, but the lemon law no longer applies.

After a reasonable opportunity to repair is made and the nonconformity is not repaired, the manufacturer must either accept return and refund the full purchase price, or accept return and give the buyer a comparable new assistive technology device. The choice of remedy belongs to the consumer, not the manufacturer. The manufacturer must pay all "collateral costs," such as shipping. There is a provision that requires the manufacturer to reimburse rental of a device while the purchased item is out for repair under certain circumstances. Manufacturers are also required to disclose to a buyer or lessee that a piece of equipment being offered for sale or lease has been returned by a buyer or lessee and the reasons for the return.

If a consumer suffers any harm or damages because a manufacturer has not complied with the lemon law, the consumer can sue for damages, including double damages for out-of-pocket pecuniary losses and attorney fees. The law creates a private right of action and the consumer does not have to rely on the government to enforce this statute.

There are other consumer law protections that may apply to the purchase of new AT.8 As stated before, the UCC covers sales transactions generally. Purchasers of AT should pay special attention to the warranty created when a manufacturer or dealer makes representations regarding things a device can do that are specific to the consumer. This implied warranty of "fitness for a particular purpose" is frequently created when a device has been customized in some way. Make a contemporaneous record of discussions and/or correspondence regarding the purchase of your device.

The Magnuson-Moss Warranty Act is a federal law that regulates, simplifies, and standardizes manufacturer warranties.9 It does not require warranties but regulates the way manufacturers communicate with consumers and gives consumers a cause of action not only for breaches of the act but also for breaches of the warranty itself.

Finally, Delaware has several other consumer protection statutes, most notably the State Unfair and Deceptive Practices Act and the Consumer Fraud Act, both found in Title 6, Chapter 25 of the Delaware Code and the Consumer Contract Statute, 6 Del. Code Section 2732. Both of these laws can be enforced by the Delaware Department of Justice as well as by private right of action. The Consumer Fraud Act generally prohibits the use of misrepresentation or other deception in the sale or lease of merchandise. The Unfair and Deceptive Trade Practices Act prohibits 12 practices likely to create confusion. There is no direct consumer remedy under this law. It is enforced by other aggrieved businesses. However, there are heightened penalties for violations directed at the elderly and people with disabilities under Chapter 25.10 Finally, the Consumer Contract Statute provides treble damages against individuals who knowingly or recklessly omit information that is required to be disclosed in consumer contracts, distort or obscure terms, or create a likelihood of confusion or misunderstanding in consumer contracts.

Consumers should of course obtain legal advice when pursuing relief and should always maintain good records. Owners of AT have an arsenal of laws to protect them in the purchase of new AT and should not be afraid to pursue the remedies that are available if their deal goes bad.

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10. 6 Del. Code Section 2580 et seq.

9. 15 USC Section 301-2312

8. These are general, brief descriptions of other possible avenues for legal relief when a consumer has purchased defective AT. Consumers need to consult with an attorney to find out whether they have enforceable rights under these laws. Also bear in mind, as always, that there are time limits for enforcing consumer protection rights.

7. Section 5003B(a)

6. Article II of he Uniform Commercial Code (UCC) governs sales transactions of goods, generally. See 6 Del. Code Article 2. Many transactions do trigger implied warranties under these laws, such as that a product is "merchantable" or, in some circumstances, that the product is "fit for a particular purpose." These warranties may exist unless a manufacturer expressly disclaims them in a certain way. A buyer who has bought defective AT may well have claims and rights under the UCC as well as the lemon law.

5. Section 5001(B)(1)

4. La. Rev. Stat. Sections 51:2762 to 2767

3. Go to www.resna.org/taproject/policy/community/lemonover.html for a review of state laws. Also www.nls.org/conf2003/lemon-laws.htm; and www.usatechguide.org have lists of states with some sort of lemon law protection and other related links.

2. 6 Del. Code Chapter 50B

1. Power wheelchairs can easily exceed $15,000 in cost. See data from 1994 NIDRR publication: www.abledata.com/abledata_docs/powwch.htm.