Chapter 81 Oregon Laws 1999

Session Law

AN ACT

SB 30

Relating to assistive devices; creating new provisions; and amending ORS 646.482, 694.036 and 694.042.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 646.482 is amended to read:

646.482. As used in ORS 646.482 to 646.498:

(1) "Assistive device" or "device" means:

(a) Wheelchairs and scooters of any kind, including other aids that enhance the mobility or positioning of an individual using a wheelchair or scooter of any kind, such as motorization, motorized positioning features and the switches and controls for any motorized features; and

(b) Hearing aids as defined in ORS 694.015.

(2) "Assistive device system" means a system of assistive devices. An "assistive device system" may be a single assistive device, or each component part of the assistive device system may be considered a separate assistive device.

(3) "Authorized dealer" means a dealer authorized by a manufacturer to sell or lease assistive devices manufactured or assembled by the manufacturer.

(4) "Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of delivering the assistive device to the manufacturer or dealer for repair and obtaining an alternative device if no loaner was offered.

(5) "Consumer" means any of the following:

(a) The purchaser of an assistive device, if the device was purchased from a dealer or manufacturer for purposes other than resale;

(b) A person to whom the assistive device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the device;

(d) A person who leases an assistive device from a dealer under a written lease.

(6) "Current value of the written lease" means the total amount for which the lease obligates the consumer during the period of the lease remaining after its early termination, plus the dealer's early termination costs and the market value of the assistive device at the lease expiration date if the lease sets forth that market value, less the dealer's early termination savings.

(7) "Dealer" means a person who is in the business of selling or leasing assistive devices.

(8) "Demonstrator" means an assistive device that would be new but for its use, since its manufacture, only for the purpose of demonstrating the device to the public or prospective buyers or lessees.

(9) "Early termination cost" means any expense or obligation that a dealer incurs as a result of both the termination of a written lease before the termination date set forth in the lease and the return of an assistive device to a manufacturer under ORS 646.486 (4). "Early termination cost" includes a penalty for prepayment under a finance arrangement.

(10) "Early termination savings" means any expense or obligation that a dealer avoids as a result of both the termination of a written lease before the termination date set forth in the lease and the return of an assistive device to a manufacturer under ORS 646.486 (4). "Early termination savings" includes the interest charge that the dealer would have paid to finance the device or, if the dealer does not finance the device, the difference between the total amount for which a lease obligates the consumer during the period of the lease term remaining after the early termination and the present market value of that amount at the date of the early termination.

(11) "Individual with a disability" means any individual who is considered to have a mental or physical disability, impairment or handicap for the purposes of any law of this state or of the United States, including any rules or regulations adopted under those laws.

(12) "Loaner" means an assistive device, provided to the consumer for use by the user free of charge, that need not be new or be identical to or have functional capabilities equal to or greater than those of the original assistive device, but that meets the following conditions:

(a) It is in good working order;

(b) It performs at a minimum the most essential functions of the original assistive device, in light of the disabilities of the user; and

(13) "Manufacturer" means a person who manufactures or assembles assistive devices and agents of that person, including an importer, a distributor, factory branch, distributor branch and any warrantor of the manufacturer's device, but does not include a dealer.

(14)(a) "Nonconformity" means a condition or defect that substantially impairs the use, market value or safety of an assistive device and that is covered by an express warranty applicable to the device or to a component of the device.

[(b) "Nonconformity" does not include a condition or defect that is the result of:]

[(A) Abuse or neglect of the device by a consumer; or]

[(B) An unauthorized modification or alteration of the device by a consumer if the modification or alteration substantially affects the performance of the device.]

(b) "Nonconformity" does not include a condition or defect that:

(A) Is the result of abuse or neglect of the device by a consumer;

(B) Is the result of an unauthorized modification or alteration of the device by a consumer if the modification or alteration substantially affects the performance of the device; or

(C) For hearing aids, is the result of normal use of the hearing aid and when the condition or defect could be resolved through fitting adjustments, cleaning or proper care.

(15)(a) "Reasonable allowance for use" means:

(A) When an assistive device has been sold to a consumer, no more than the amount obtained by multiplying the full purchase price of the device by a fraction, the denominator of which is the number of days in the useful life of the device and the numerator of which is the number days that the device was used before the consumer first reported the nonconformity to the manufacturer or any authorized dealer.

(B) When an assistive device has been leased to a consumer, no more than the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is the useful life of the device and the numerator of which is the number of days that the device was used before the consumer first reported the nonconformity to the manufacturer or any authorized dealer.

(b) As used in this subsection, the useful life of the assistive device is the greater of:

(A) Five years; or

(B) Such other time that the consumer may prove to be the expected useful life of assistive devices of the same kind.

(16) "Reasonable attempt to repair" means, within the terms of an express warranty applicable to an assistive device:

(a) The same nonconformity is subject to repair at least two times by the manufacturer or any authorized dealer and the nonconformity continues; or

(b) The assistive device is out of service, by reason of repair or correction, for an aggregate of at least 30 days after notification to the manufacturer or any authorized dealer because of the nonconformity.

(17) "User" means an individual with a disability who, by reason thereof, needs and actually uses the assistive device.

SECTION 2. ORS 694.036 is amended to read:

694.036. (1) Prior to consummation of the sale of a hearing aid, a person dealing in hearing aids shall deliver to the prospective purchaser a written statement, signed by the person dealing in hearing aids. The statement shall be on a form prescribed by the Health Division which shall include but not be limited to all of the following:

(a) The name and address of the prospective purchaser.

(b) The date of the sale.

(d) The address or principal place of business of the person dealing in hearing aids.

(e) A statement to the effect that the aid or aids delivered to the purchaser are used or reconditioned, as the case may be, if that is the fact.

(f) The number of the license of the person dealing in hearing aids.

(g) The terms of any guarantee or expressed warranty, if any, made to the purchaser with respect to such hearing aid or hearing aids, including that provided in ORS 646.482 to 646.498 and 694.042.

(h) The address of the Health Division and the procedure for making a complaint under ORS 694.015 to 694.170.

(i) In no smaller type than the largest used in the body copy portion, the following bordered statement:

___________________________________________________________________

"It is desirable that a person seeking help with a hearing problem (especially for the first time) consult an ear doctor and obtain a clinical hearing evaluation. Although hearing aids are often recommended for hearing problems, another form of treatment may be necessary."

___________________________________________________________________

(j) The signature of the prospective purchaser indicating that the prospective purchaser has read and understands the information contained in the statement.

(2) A duplicate copy of the statement required under subsection (1) of this section shall be kept for one year by the person selling the hearing aid. The statement shall be made available to the Health Division upon request.

SECTION 3. ORS 694.042 is amended to read:

694.042. (1) In addition to any other rights and remedies the purchaser may have, including rights under ORS 646.482 to 646.498, the purchaser of a hearing aid shall have the right to rescind the transaction if:

(a) The purchaser for whatever reason consults a licensed medical physician specializing in diseases of the ear, or an audiologist not licensed under this chapter and not affiliated with anyone licensed under this chapter and licensed medical physician, subsequent to purchasing the hearing aid, and the licensed physician advises such purchaser against purchasing or using a hearing aid and in writing specifies the medical reason for the advice;

(b) The seller, in dealings with the purchaser, committed any act listed in ORS 694.136, or failed to provide the statement required by ORS 694.036;

(d) The licensee fails to meet any standard of conduct prescribed in the law or rules regulating fitting and dispensing of hearing aids and this failure affects in any way the transaction which the purchaser seeks to rescind.

(2) The purchaser of a hearing aid shall have the right to rescind the transaction, for other than the seller's breach, as provided in subsection (1)(a), (b), (c) or (d) of this section only if the purchaser returns the product and it is in good condition less normal wear and tear and gives written notice of the intent to rescind the transaction by either:

(a) Returning the product with a written notice of the intent to rescind sent by certified mail, return receipt requested, to the licensee's regular place of business; or

(b) Returning the product with a written notice of the intent to rescind to an authorized representative of the company from which it was purchased.

(3) The notice described in subsection (2) of this section shall state that the transaction is canceled pursuant to this section. The notice of intent to rescind must be postmarked:

(a) Within 30 days from the date of the original delivery; or

(b) Within specified time periods if the 30-day period has been extended in writing by both parties. The consumer's rescission rights can only be extended through a written agreement by both parties.

(4) If the conditions of subsection (1)(a), (b), (c) or (d) of this section and subsection (2)(a) or (b) of this section have been met, the seller, without further request and within 10 days after the cancellation, shall refund to the purchaser all deposits, including any down payment, less 20 percent of the total purchase price. At the same time, the seller shall return all goods traded in to the seller on account of or in contemplation of the sale. The purchaser shall incur no additional liability for the cancellation.

SECTION 4. The amendments to ORS 646.482, 694.036 and 694.042 by sections 1 to 3 of this 1999 Act apply to transactions involving hearing aids occurring on or after the effective date of this 1999 Act.

Approved by the Governor April 20, 1999

Filed in the office of Secretary of State April 20, 1999

Effective date October 23, 1999

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