Consumer Protection - Right to Repair - Powered Wheelchairs

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *sb0382* SENATE BILL 382 I3 5lr0985 CF HB 31 By: Senators Kagan, Gile, Hester, King, Sydnor, M. Washington, and West Introduced and read first time: January 17, 2025 Assigned to: Finance A BILL ENTITLED AN ACT concerning 1 Consumer Protection – Right to Repair – Powered Wheelchairs 2 FOR the purpose of requiring, in order to make repairs to powered wheelchairs, that a 3 certain manufacturer make available certain documentation, parts, embedded 4 software, firmware, and tools to a certain independent repair provider or owner of a 5 powered wheelchair; and generally relating to the repair of powered wheelchairs. 6 BY repealing and reenacting, with amendments, 7 Article – Commercial Law 8 Section 13–301(14)(xliv) 9 Annotated Code of Maryland 10 (2013 Replacement Volume and 2024 Supplement) 11 (As enacted by Chapters 262, 454, 455, 460, 461, 463, and 962 of the Acts of the 12 General Assembly of 2024) 13 BY repealing and reenacting, without amendments, 14 Article – Commercial Law 15 Section 13–301(14)(xlv) 16 Annotated Code of Maryland 17 (2013 Replacement Volume and 2024 Supplement) 18 (As enacted by Chapters 262, 454, 455, 460, 461, 463, and 962 of the Acts of the 19 General Assembly of 2024) 20 BY adding to 21 Article – Commercial Law 22 Section 13–301(14)(xlvi); and 14–5001 through 14–5004 to be under the new subtitle 23 “Subtitle 50. Powered Wheelchairs Repair” 24 Annotated Code of Maryland 25 (2013 Replacement Volume and 2024 Supplement) 26 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 27 2 SENATE BILL 382 That the Laws of Maryland read as follows: 1 Article – Commercial Law 2 13–301. 3 Unfair, abusive, or deceptive trade practices include any: 4 (14) Violation of a provision of: 5 (xliv) Title 14, Subtitle 49 of this article; [or] 6 (xlv) Section 12–6C–09.1 of the Health Occupations Article; or 7 (XLVI) TITLE 14, SUBTITLE 50 OF THIS ARTICLE; OR 8 SUBTITLE 50. POWERED WHEELCHAIRS REPAIR. 9 14–5001. 10 (A) IN THIS SUBTITLE THE FOLLOWING WORDS HAVE THE MEANINGS 11 INDICATED. 12 (B) (1) “AUTHORIZED REPAIR PRO VIDER” MEANS A PERSON THAT IS 13 UNAFFILIATED WITH A MANUFACTURER AND, FOR THE PURPOSE OF O FFERING TO 14 PROVIDE SERVICES TO AN OWNER OF THE MANUFAC TURER’S EQUIPMENT 15 REGARDING THE OWNER’S EQUIPMENT OR PART, HAS: 16 (I) AN ARRANGEMENT WITH THE MANUFACTURE R UNDER 17 WHICH THE MANUFACTURER GRANTS TO THE PERSON A LICENSE TO USE A TRADE 18 NAME, A SERVICE MARK, OR ANY OTHER PROPRIETARY IDENTIFIER; OR 19 (II) AUTHORIZATION UNDER ANOTHER ARRANGEMENT TO ACT 20 ON BEHALF OF THE MANUFACTURER. 21 (2) “AUTHORIZED REPAIR PROVIDER” INCLUDES A MANUFACTURER 22 WHEN THE MANUFACTURER: 23 (I) OFFERS TO PROVIDE SER VICES TO AN OWNER OF THE 24 MANUFACTURER’S EQUIPMENT REGARDIN G THE OWNER ’S EQUIPMENT OR PART ; 25 AND 26 (II) DOES NOT HAVE AN Y ARRANGEMENT DESCRIBE D IN 27 PARAGRAPH (1) OF THIS SUBSECTION WITH AN UNAFFILIATED PERSON. 28 SENATE BILL 382 3 (C) “DOCUMENTATION” MEANS ANY MANUAL , DIAGRAM, REPORTING 1 OUTPUT, SERVICE CODE DESCRIP TION, SCHEMATIC, OR OTHER INFORMATION, 2 WHETHER IN ELECTRONIC OR TANGIB LE FORMAT , THAT A MANUFACTURER 3 PROVIDES TO AN AUTHORIZED REPAIR PROVIDER FOR THE PURPOSE OF ASSISTING 4 THE AUTHORIZED REPAI R PROVIDER WITH SERV ICES PERFORMED ON TH E 5 MANUFACTURER’S EQUIPMENT OR PART. 6 (D) (1) “EMBEDDED SOFTWARE ” MEANS PROGRAMMABLE 7 INSTRUCTIONS PROVIDE D ON FIRMWARE DELIVE RED WITH AN ELECTRON IC 8 COMPONENT OF EQUIPMENT OR A PART TO RESTORE OR IMPROVE OPERATION OF 9 THE EQUIPMENT OR PART. 10 (2) “EMBEDDED SOFTWARE ” INCLUDES ALL RELEVAN T PATCHES 11 AND FI XES THAT THE MANUFAC TURER MAKES TO EQUIP MENT OR A PART TO 12 RESTORE OR IMPROVE THE EQUIPMENT OR PART. 13 (E) “EQUIPMENT” MEANS A POWERED WHEELCHAIR. 14 (F) “FAIR AND REASONABLE TERMS AND COSTS” MEANS: 15 (1) WITH RESPECT TO OBTAI NING FROM A MANUFACTURER ANY 16 DOCUMENTATION, PARTS, EMBEDDED SOFTWARE, FIRMWARE, OR TOOLS IN ORDER 17 TO PROVIDE SERVICES: 18 (I) TERMS THAT ARE EQUIVA LENT TO THE MOST FAVORABLE 19 TERMS THE MANUFACTURER OFFERS TO AN AUTHORIZED REPAIR PROVIDER; AND 20 (II) COSTS THAT DO NOT EXC EED THE MANUFACTURER’S 21 SUGGESTED RETAIL PRI CE, CALCULATED USING NET COSTS INCURRED AND 22 ACCOUNTING FOR ANY DISCOUNTS, REBATES, OR INCENTIVES OFFERED; 23 (2) WITH RESPECT TO OBTAI NING FROM A MANUFACT URER ANY 24 DOCUMENTATION TO PRO VIDE SERVICES , TERMS AND COSTS ON WHICH THE 25 MANUFACTURER AGREES TO PROVIDE THE DOCUMENT ATION AND ANY RELEVA NT 26 UPDATES AT NO CHARGE OTHER THAN , AT MOST , A CHARGE FOR THE 27 MANUFACTURER’S ACTUAL COSTS TO PREPARE AND SEND THE PRINTED COPY OF 28 THE DOCUMENTATION; AND 29 (3) WITH RESPECT TO OBTAI NING FROM A MANUFACTUR ER TOOLS 30 THAT ARE SOFTWARE PR OGRAMS, TERMS AND COSTS ON WHICH THE 31 MANUFACTURER AGREES TO PROVIDE THE TOOLS: 32 4 SENATE BILL 382 (I) AT NO CHARGE AND WITHOUT REQUIRING AUTHORIZATION 1 OR INTERNET ACCESS, OR IMPOSING IMPEDIMENTS TO ACCESS OR USE THE TOOLS; 2 (II) DURING THE COURSE OF PERFORMING A DIAGNOS IS, 3 MAINTENANCE, OR A REPAIR AND IN A MANNER THAT ENA BLES FULL 4 FUNCTIONALITY OF THE EQUIPMENT OR PART; AND 5 (III) IN A MANNER THAT DOES NOT IMPAIR THE EFFICIENT AND 6 COST–EFFECTIVE PERFORMANCE OF THE EQUIPMENT OR PART. 7 (G) “FIRMWARE” MEANS A SOFTWARE PROGRAM OR SET OF INSTRUCTIONS 8 PROGRAMMED ON EQUIPMENT OR A PART TO ALL OW THE EQUIPMENT OR PART TO 9 COMMUNICATE WITH ITSELF OR WITH OTHER COMPUTER HARDWARE. 10 (H) (1) “INDEPENDENT REPAIR PR OVIDER” MEANS A PERSON IN THE 11 STATE THAT IS: 12 (I) EXCEPT AS PROVIDED IN PARAGRAPH (2)(I) OF THIS 13 SUBSECTION, NEITHER A MANUFACTUR ER’S AUTHORIZED REPAIR PROVIDER NOR 14 AFFILIATED WITH A MANUFACTURER’S AUTHORIZED REPAIR PROVIDER; AND 15 (II) ENGAGED IN OFFERING OR PROVIDING SERVICES. 16 (2) “INDEPENDENT REPAIR PROVIDER” INCLUDES: 17 (I) AN AUTHORIZED REPAIR PROVIDER IF THE AUTHORIZED 18 REPAIR PROVIDER IS OFFERING OR PROVI DING SERVICES FOR A DIFFERENT 19 MANUFACTURER OTHER THAN THE MANUFACTURER WITH WHOM THE AUTHORIZED 20 REPAIR PROVIDER HAS AN ARRANGEMENT AS DE SCRIBED SUBSECTION (B)(1) OF 21 THIS SECTION; AND 22 (II) A MANUFACTURER THAT OFFERS OR PROVIDES SERVICES 23 FOR ANOTHER MANUFACTURER’S EQUIPMENT OR PART. 24 (I) “MANUFACTURER” MEANS A PERSON DOING BUSIN ESS IN THE STATE 25 AND ENGAGED IN THE B USINESS OF SELLING , LEASING, OR SUPPLYING NEW 26 EQUIPMENT OR PARTS M ANUFACTURED BY OR ON BEHALF OF ITSELF TO ANY 27 INDIVIDUAL, BUSINESS, OR OTHER ENTITY. 28 (J) “OWNER” MEANS A PERSON THAT OWNS EQUIPMENT OR AN AGENT OF 29 THE OWNER. 30 (K) “PART” MEANS A NEW OR USED REPLACEMENT COMPONENT FOR 31 SENATE BILL 382 5 EQUIPMENT THAT A MANUFACTURER OFFERS FOR SALE OR MAKES AVAILABLE FOR 1 THE PURPOSE OF PROVIDING SERVICES. 2 (L) “POWERED WHEELCHAIR ” MEANS A MOTORIZED WH EELED DEVICE 3 DESIGNED FOR USE BY A PERSON WITH A PHYSICAL DISABILITY. 4 (M) “SERVICES” MEANS DIAGNOSTIC S, MAINTENANCE, OR REPAIR S 5 PERFORMED ON EQUIPMENT OR PARTS. 6 (N) (1) “TOOL” MEANS ANY SOFTWARE P ROGRAM, HARDWARE 7 IMPLEMENT, OR OTHER APPARATUS U SED FOR DIAGNOSIS , MAINTENANCE, OR 8 REPAIR OF EQUIPMENT OR PARTS. 9 (2) “TOOL” INCLUDES SOFTWARE OR OTHER ME CHANISMS THAT 10 PROVIDE, PROGRAM, OR PAIR A NEW PART , CALIBRATE FUNCTIONAL ITY, OR 11 PERFORM ANY OTHER FUNCTION REQUIRED TO RETURN THE EQUIPMENT OR PART 12 TO FULLY FUNCTIONAL CONDITION. 13 (O) “TRADE SECRET ” HAS THE MEANING STAT ED IN § 11–1201 OF THIS 14 ARTICLE. 15 14–5002. 16 (A) EXCEPT AS PROVIDE D IN SUBSECTION (C) OF THIS SECTION , TO 17 PROVIDE SERVICES FOR EQUIPMENT IN THE STATE, A MANUFACTURER SHALL, ON 18 FAIR AND REASONABLE TERMS AND COSTS, MAKE AVAILABLE TO AN INDEPENDENT 19 REPAIR PROVIDER OR O WNER OF THE MANUFACT URER’S EQUIPMENT ANY 20 DOCUMENTATION, PARTS, EMBEDDED SOFTWARE, FIRMWARE, OR TOOLS THAT ARE 21 INTENDED FOR USE WITH THE EQUIPMENT OR A NY PART, INCLUDING UPDATES TO 22 DOCUMENTATION, PARTS, EMBEDDED SOFTWARE, FIRMWARE, OR TOOLS. 23 (B) (1) FOR EQUIPMENT THAT CO NTAINS AN ELECTRIC S ECURITY LOCK 24 OR OTHER SECURITY–RELATED FUNCTIONS, A MANUFACTURER SHALL, ON FAIR AND 25 REASONABLE TERMS AND COSTS, MAKE AVAILABLE TO INDEPENDENT REPAIR 26 PROVIDERS ANY DOCUMENTATION, PARTS, EMBEDDED SOFTWARE, FIRMWARE, OR 27 TOOLS NEEDED TO RESET THE LOCK OR FUNCTION WHEN DISABLED IN THE COURSE 28 OF PROVIDING SERVICES. 29 (2) THE MANUFACTURER MAY MAKE THE DOCUMENTATI ON, PARTS, 30 EMBEDDED SOFTWARE, FIRMWARE, OR TOOLS AVAILABLE TO INDEPENDENT REPAIR 31 PROVIDERS AND OWNERS THROUGH APPROPRIATE SECURE RELEASE SYSTEMS. 32 (C) (1) THE REQUIREMENTS OF S UBSECTION (A) OF THIS SECTION DO 33 6 SENATE BILL 382 NOT APPLY TO: 1 (I) A PART THAT IS NO LONG ER AVAILABLE TO THE ORIGINAL 2 MANUFACTURER; AND 3 (II) CONDUCT THAT WOULD REQUIRE THE MANUFACTURER TO 4 DIVULGE A TRADE SECR ET, UNLESS COMPLIANCE WI TH SUBSECTION (A) OF THIS 5 SECTION IS NECESSARY TO PROVIDE SERVICES ON THE GROUNDS THAT THE 6 DOCUMENTATION, PART, EMBEDDED SOFTWARE, FIRMWARE, OR TOOL IS ITSELF A 7 TRADE SECRET. 8 (2) A MANUFACTURER MAY MAK E REDACTIONS TO REMO VE TRADE 9 SECRETS FROM THE DOC UMENTATION BEFORE PROVIDING THE DOCUMENTATION 10 IF THE USABILITY OF THE REDACTED DOCUMEN TATION IS NOT DIMINI SHED FOR 11 PURPOSES OF PROVIDING SERVICES. 12 (D) A MANUFACTURER IS NOT LIABLE FOR FAULTY OR IMPROPER REPAIRS 13 PROVIDED BY INDEPENDENT REPAIR PROVIDERS OR OWNERS, INCLUDING FAULTY 14 OR IMPROPER REPAIRS THAT CAUSE: 15 (1) DAMAGE TO EQUIPMENT THAT OCCURS DURING THE REPAIRS; 16 (2) ANY DIRECT , INCIDENTAL, SPECIAL, OR CONSEQUENTIAL 17 DAMAGES; OR 18 (3) AN INABILITY TO USE , OR A REDUCED FUNCTIO NALITY OF , 19 EQUIPMENT THAT RESULTS FROM THE FAULTY OR IMPROPER REPAIR. 20 14–5003. 21 (A) NOTHING IN THIS SUBTITLE MAY BE CONSTRUED TO: 22 (1) LIMIT THE LIABILITY OF A PERSON UNDER A PRODUCTS LIABILITY 23 CLAIM; OR 24 (2) REQUIRE A MANUFACTURE R TO PROVIDE AN INDE PENDENT 25 REPAIR PROVIDER OR OWNER ACCESS TO INFO RMATION, OTHER THAN 26 DOCUMENTATION NECESSARY FOR COMPLI ANCE WITH THIS SUBTI TLE, THAT THE 27 MANUFACTURER PROVIDE S TO AN AUTHORIZED R EPAIR PROVIDER UNDER A 28 CONTRACT OR OTHER ARRANGEMENT. 29 (B) THE REQUIREMENTS AND REMEDIES PROVIDED UNDER THIS SUBTITLE 30 MAY NOT BE WAIVED OR LIMITED BY A CONTRACT OR OTHER ARRANGEMENT. 31 SENATE BILL 382 7 14–5004. 1 A VIOLATION OF THIS SUBTITLE IS: 2 (1) AN UNFAIR, ABUSIVE, OR DECEPTIVE TRADE P RACTICE WITHIN 3 THE MEANING OF TITLE 13 OF THIS ARTICLE; AND 4 (2) SUBJECT TO THE ENFORCEMENT AND PENA LTY PROVISIONS 5 CONTAINED IN TITLE 13 OF THIS ARTICLE. 6 SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall be construed to 7 apply only prospectively and may not be applied or interpreted to have any effect on or 8 application to any contract that is executed between an authorized repair provider and a 9 manufacturer, as those terms are defined in § 14 –5001 of the Commercial Law Article, as 10 enacted by Section 1 of this Act, before the effective date of this Act. 11 SECTION 3. AND BE IT F URTHER ENACTED, That this Act shall take effect 12 October 1, 2025. 13