Below is testimony I presented on Tuesday, August 13, 1996 on the Assistive Technology Warranty Act, a bill introduced in the last session of the Illinois General Assembly. The testimony was presented at the Illinois Disability Policy Forum in Chicago. Versions of the bill have been enacted in 10 states. Overall the bill as introduced will benefit users of electric wheelchairs and similar devices and have unintended disastrous consequences for blind persons and users of information technology. The approach I favor is one of empowerment of people with disabilities about existing laws and assistive technology programs rather than another layer of vaguely defined and misunderstood rights. A copy of the law appears at the end of this post following my remarks. kelly Testimony of: Kelly J. Pierce A recent report by the National Council on Disability identifies the widespread use of technology as one of the four big megatrends that have impacted the lives of people with disabilities in the last decade. The report predicts that this trend will continue for at least another 10 years. It is for this reason that I come here today with significant concerns about the Assistive Technology Warranty Act introduced in the last session of the General Assembly. The bill needs to encompass the issues relevant to blind and print-impaired users of information access technology. This would include narrowing the scope of the bill to include only products specifically intended for people with disabilities, basing protection on product type rather than consumer identity, reducing the warranty period for computer software, and empowering consumers of assistive technology to take more responsibility when purchasing products. If the bill is not changed, it will stall the gains in information access, impede efforts for universal design, and have significant negative impacts on availability and development of electronic products and services useful to blind persons. Known by many as the "wheelchair lemon law," the act would require manufactures of all assistive technology to offer a full one year warranty for replacement or refund on a product if it cannot be fixed after four attempts, if it is out of service for more than a total of 30 days, or if the assistive device has any conditions or defects which substantially impairs the value of the assistive device to the consumer. However, the right of redress for diminish value offers blind persons who use adapted technology what I believe will be reduced availability of such technology in the long run. Fundamentally, the bill extends far beyond taking the sourness out of the technology lemons consumers sometimes have. In the end it fails to empower consumers to take responsibility for the technology choices that are made, usually at the expense of a third party, such as the Illinois Department of Rehabilitation Services, Medicaid, insurance, family members, schools, and service clubs. Education about options and assistive technology issues is one way consumers can have the tools to take charge. Sharing the risk is another way. Property insurers have deductibles so that consumers take steps in their self interest as well as the insurance company's. Student aid requires students to maintain a certain grade point average and a course will only be paid for once. If you choose the wrong school, have low grades, or pick the wrong courses, you must pay for the correction yourself. Consumers of accessible information technology need empowerment more than they need rights. Empowered consumers who choose products that meet their needs, pick their own vendors, and decide upon a training approach that is right for them have more satisfactory results than what might be achieved through the diminished value clause. For blind users of information technology, we are trying to fix the problem from the back end of what is essentially a front end problem. Another troubling aspect of the bill is its application to mainstream products. To understand the problem the technology must be understood. People with disabilities use essentially two kinds of assistive technology. One kind is that specifically designed, manufactured and marketed to people with disabilities and those that serve them. Examples are obvious such as wheelchairs, braille embossers, and portable ventilator units. The other kind of tool that allows for independence, is that found in mainstream products. These are products not specifically designed for people with disabilities but provide as much benefit and independence as specialized products do. Examples include the Sharp talking clock and calculator, talking watches at Radio Shack, and vcr's that can be programmed by speaking to them. Further, a trend is ongoing called universal design. This process encourages manufactures of products to consider all the potential users of a product including children, people with disabilities, older persons, and those with limited cognitive skills. Advocates say that this reduces or eliminates the need for unique, specialized products that are often expensive and hard to find and use. Proponents of universal design point to closed captioned decoders as their success story. The decoders began being sold in the 1970s to allow people with hearing impairments access to spoken matter on television. Certain television programs are transcribed and the text is displayed at the bottom of the screen only with sets connected to such decoding equipment. Now the "equipment" is etched on a microchip and installed into every television set sold in the United States, no matter who buys it. The benefits to those who are deaf or hard of hearing are obvious: access to television programming will be available anywhere without a specialized, attached device. Other people benefit also from this mainstream design of a specialized technology. Translation software has been added to some sets that allow for instantaneous translation of the closed captioned material into Spanish, French, German and other languages, certainly a help to the nearly one million new immigrants to the U. S. each year. In some bars bartenders click on the captioning feature so that patrons can access the play-by- play sports commentary without needing to have sets turned up so loud. In the end, everyone benefits when television sets are designed for everyone. However, under the proposed legislation, everything that could be used for "a major life activity" to increase a person's ability to see, hear, maneuver, or communicate would be covered by the act. This would include not only specialize products and services but mainstream ones as well, such as the new television sets. It is firmly believed that manufactures of all products have an obligation to ensure that all products and services and be used by the greatest number of people in the community. Otherwise, blind persons and those with disabilities will be excluded from the information age. I believe though that this legislation is not the means to force manufacturers to design accessible products for people with disabilities. Displays that can only be read visually, buttons that are hard to press or manipulate, or audible alarms that must be responded to are all examples of product features that by their very design are inaccessible to some people with disabilities. In a changing marketplace, this law could be used to force manufacturers to refund the cost of a slightly inaccessible product if a newer, competing product offers more features and improvements that could benefit someone with a disability. The road to better products and adoption of universal design principles by manufactures is not through litigation in the courts. Universal design standard setting, such as that found in the Telecommunications Deregulation Act of 1996, should be a mutual process involving all the interested parties that could be affected by the decision, such as government, industry, and the disability community. Further, blind persons and those with disabilities should not have special rights when purchasing mainstream products and services. To fulfill the needs of people with disabilities who may buy the wrong products to serve their needs or who do not know how to get products to work, I support full enforcement of the Americans with Disabilities Act and extending it if necessary Current law requires dealers and salespersons to read printed information on contracts, boxes and store displays so that blind consumers can make an informed choice. Certainly more education must occur for consumers if people with disabilities are to know about and exercise this right. This bill will likely turn most electronic products sold at mainstream retail outlets into "assistive technology" worthy of special protection. This could include every television set now on the market and most computer equipment. The law creates a two-tiered standard of protection: one for the mainstream and the other for the disabled. This double standard that the law creates may in the end be more harmful than helpful. This law creates an incentive, if applied on a national level, for manufactures to not include features that could be useful to someone with a disability. This is because manufactures would avoid the possibility of being regulated by the act. The two-tiered system of consumer rights and protection inevitably resulting from this bill would further isolate and perpetuate the dependence the blind and people with disabilities have on government and social service agencies, not allowing us to take responsibility for our lives. Equal status on terms of equality means just that: nothing more and certainly nothing less. The bill as introduced fails to recognize the unique issues of computer software. The mainstream issues are obvious: nearly all computer software on the market sold in commercial, mainstream venues can enhance the communication of people with disabilities. This would regulate an entire class of products based on the kind of consumer who bought the product rather than regulating the product class in and of itself. As described above, I do not believe that the Assistive Technology Warranty Act should apply to mainstream products. Moreover, mainstream computer software producers are adding features useful to people with disabilities. For example, both the Apple MacIntosh and Windows 95 operating systems include features that enlarge text on the monitor, allow for one-handed keyboard operation, and use of the interface without a mouse. Some commercial mainstream communication programs allow a personal computer to emulate a telecommunications device for the deaf. I believe that if this bill were adopted software designers would avoid putting such features into mainstream software, opting instead for specialized programs to avoid being regulated in this new way. This would limit, rather than expand, mainstream participation for people with disabilities and impede universal design efforts, ghettoizing the disability community. Information technology, particularly software, changes so rapidly that the capitalization necessary to fund development of access technology would be restricted if a full refund were allowed for software bugs in programs designed and intended for the blind and those with disabilities that could not be fixed within a year of purchase. I believe that this bill could dramatically increase the number of returned units of software and encourage frequent switching of products, escalating the costs of accessing computers for blind and print-impaired persons. The unintended consequence would be to limit choices and options rather than increasing them. The bill should be changed to require only a full refund 30 days after purchase and free upgrades of purchased software up to a year after purchase, a common practice in the adapted technology field. This change would protect those sold incompatible software or that which is inappropriate for their needs while at the same time minimizing the increased cost to other consumers with disabilities resulting from abuses in a broad-based and overly flexible policy. To be sure, Added protection for unsophisticated consumers who buy specialized products for their own independence make sense. People who own electric wheelchairs want greater reliability and security in the devices they use for their daily independence. Blind persons and those with disabilities are unsophisticated consumers that depend on these products to keep and obtain a job, to travel, and for everyday community participation. Most jobs now require use of a computer. Blind persons can now work in fields before unavailable because blind individuals can access information displayed on the video monitor through having it read in a synthesized voice or on a refreshable braille display. The blind person's job now depends on this technology working reliably and effectively. This is why I support a right of recourse for conditions and defects of specialized products that impairs the value of the product to the consumer. Not only are most people with disabilities unsophisticated consumers, many of the issues seeking protection by this act occur because the consumer buys a piece of information technology that is ill-suited or inappropriate for him. Assistive technology dealers aggressively pursue potential consumers, some in the process of losing their vision, to persuade them to buy particular devices or products. It is only until later when the consumer tries to use a product, does he discover that the dealer's claims are outlandish and untrue. Examples abound of blind consumers with no useful vision being sold or attempted to be sold software that enlarges text on a computer screen. The software works; however, the assistive technology dealer knew in each instance that the consumer would likely not be able to use the product. Unfortunately, newly disabled people are often desperate for anything that might minimize the disability, no matter the logic of the sales pitch. I also support this provision for specialized products designed, marketed, and developed for people with disabilities because of the incompatibility issues so common with information access technology. While a speech synthesizer or braille display may be free from defects, the product may not be compatible with the equipment of the user, despite assurances of a dealer eager to make a sale. Finally, any law on technology access is of no value unless we halve the resolve and commitment to implement it and see that it is enforced. A significant example of the failure to implement the technology access sections of the Americans with Disabilities Act occurs from one of the very sponsors of this policy forum, the Mayor's Office of the city of Chicago. After nearly three years of being aware of the problem and the steps to correct it, the Daley administration still has not made computer workstations and information services at the Chicago Public Library accessible to people with disabilities. Requests for meetings with the library commissioner have been refused and assistance from Larry Gorski, the Director of the Mayor's Office for People with Disabilities has been minimal at the very best. More money or the lack of it is neither the solution or the problem. The Illinois State Library granted more than $60,000 to the Chicago Public Library for a pilot project. The computers, speech synthesizers, and access software are sitting unused because they have not been installed. The mayor's office created a position on assistive technology issues the salary of which exceeds $35,000. Further, Library commissioner Mary Dempsey pledged nearly a year ago at a city budget hearing in this very room to have completed by January 1 an ADA transition plan on when such access would be a reality. The plan is not finished by the library's ADA compliance officer, Jim Pletz. Earlier this year Microsoft Chairman Bill Gates donated one million dollars for the library's efforts to go online and expand information access to every library branch in the City of Chicago. Neither the library or the mayor's office has said yet how people with disabilities will participate in this information initiative. The benefits of technology will accrue to people with disabilities not through additional litigation from vaguely worded laws such as the warranty act, but through the cooperation and commitment of existing parties working together to implement current policy and programs. Assistive Technology Warranty Act Senate bill 1398 As used in this Act, the following terms are defined as: SECTION ONE 1. "Assistive device", any device, including a demonstrator, that a consumer purchases, leases or accepts transfer of in this state which is used for a major life activity which includes, but is not limited to, manual wheelchairs, motorized wheelchairs, motorized scooters, and other aides that enhance the mobility of an individual; hearing aids, telephone communication devices for the deaf (TTY), assistive listening devices, and other aids that enhance an individual's ability to hear; voice synthesized computer modules, optical scanners, talking software, braille printers, and any other devices that enhance a sight impaired individuals's ability to communicate; and any other assistive device that enables a person with a disability to communicate, see, hear, or maneuver; 2. "Assistive device dealer", a person who is in the business of selling assistive devices; 3. "Assistive device lessor", a person who leases an assitive device to a consumer, or who holds the lessor's rights under a written lease. 4. "Collateral cost", expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of obtaining an alternative assistive device; 5. "Consumer", any of the following: (a) The purchaser of an assistive device, if the device was purchased from an assistive 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 assistive device. A person who may enforce the warranty; (d) A person who leases an assistive device from an assistive device lessor under a written lease; 6. "Demonstrator", an assistive device used primarily for the purpose of demonstration to the public; 7. "Early termination cost", any expense or obligation that an assistive device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assitive device to a manufacturer pursuant to this section. Early termination cost includes a penalty for prepayment under a finance arrangement; 8. "Early termination saving", any expense or obligation that an assistive device lessor avoids as a result of both the termination of a written lease before that termination date set forth in that lease and the return of an assistive device to a manufacturer pursuant to this section. Early termination saving includes an interest charge that the assistive device lessor would have paid to finance the assistive device or, if the assistive device lessor does not finance the assistive device, the difference between the total amount for which the lease obligates the consumer during the period of the lease remaining after the early termination and the present value of that amount at the date of the early termination; 9. "Manufacturer", a person who manufactures or assembles assistive devices and agents of that person, including an importer, a distributor, factory branch, distributor branch and any warrantors of the manufacturer's assistive device, but does not include an assistive device dealer; 10. "Nonconformity", a condition or defect that substantially impairs the use, value, or safety of an assistive device, and that is covered by an express warranty applicable to the assistive device or to a component of the assistive device, but does not include a condition or defect that is the result of abuse, neglect or unauthorized modification or alteration of the assistive device by a consumer; 11. "Reasonable attempt to repair", within the terms of an express warranty applicable to a new assistive device: (a) Any nonconformity within the warranty that is either subject to repair by the manufacturer, assistive device lessor or any of the manufacturer's authorized assistive device dealers, for at least four times and a nonconformity continues; (b) The assistive device is out of service for an aggregate of at least thirty cumulative days because of warranty nonconformity. SECTION TWO 1. A manufacturer who sells an assistive device to a consumer, either directly or through an assistive device dealer, shall furnish the consumer with an express warranty for the assistive device. The duration of the express warranty shall be not less than one year after first delivery of the assistive device to the consumer. In the absence of an express warranty from the manufacturer, the manufacturer shall be deemed to have expressly warranted to the consumer of an assistive device that, for a period of one year from the date of the first delivery to the consumer, the assistive device will be free from any condition or defect which substantially impairs the value of the assistive device to the consumer. 2. If a new assistive device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive device lessor or any manufacturer's authorized assistive device dealers and makes the assistive device available for repair before one year after return delivery of the assistive device to a consumer, the nonconformity shall be repaired at no charge to the consumer. 3. If, after a reasonable attempt to repair, the nonconformity is not repaired, the manufacturer shall carry out the requirement set forth under subsection 5 of this section. 4. If, after a reasonable attempt to repair, the nonconformity is not repaired, then at the direction of a consumer described under paragraph (a), (b), or of subsection (5) of section 1, the manufacturer shall do one of the following: (1) Accept return of the assistive device and replace the assistive device with a comparable new assistive device and refund any collateral cost; (2) Accept return of the assistive device and refund to the consumer and to any holder of a perfected security interest in the consumer's assistive device, as their interest may appear, the full purchase price plus any finance charge amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use. A reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the assistive device by a fraction, the demoninator of which is one thousand eight hundred twenty-five and the numerator of which is the number of days that the assistive device was used before the consumer first reported the nonconformity to the assistive device dealer; (3) With respect to a consumer described under paragraph (d) of subsection (5) of section 1, accept return of the assistive device, refund to the assistive device lessor and to any holder of a perfected security interest in the assistive device, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease plus any collateral costs, less a reasonable allowance for use. 5. The current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive device dealer's early termination costs and the value of the assistive device at the lease expiration date if the lease sets forth that value, less the assistive device lessor's reasonable allowance for use. 6. A reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is one thousand eight hundred twenty-five (1825) and the numerator of which is the number of days that the consumer used the assistive device before first reporting the nonconformity to the manufacturer, assistive device lessor or assistive device dealer. 7. To receive a comparable new assistive device or a refund due under subsection 4 of this section, a consumer described under subsection of section 1 shall offer to the manufacturer of the assistive device having nonconformity to transfer possession of that device to that manufacturer. No later than thirty days after that offer, the manufacturer shall provide the consumer with the comparable assistive device or refund. When the manufacturer provides the new assistive device or refund, the refund, the consumer shall return the assistive device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer real possession to the manufacturer. 8. To receive a refund due under subdivision (3) of subsection 4 of this section, a consumer described under paragraph (d) of subsection (5) of section 1 shall offer to return the assistive device having the nonconformity to its manufacturer. No later than thirty days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return to the manufacturer the assistive device having the nonconformity. 9. To receive a refund due under subdivision (3) of subsection 4 of this section, an assistive device lessor shall offer to transfer possession of the assistive device having the nonconformity to its manufacturer. No later than thirty days after that offer, the manufacturer shall provide the refund to the assistive device lessor. When the manufacturer provides the refund, the assistive device lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer. 10. No person shall enforce the lease against the consumer after the consumer receives a refund due under subdivision (3) of subsection 4 of this section. 11. No assistive device returned by a consumer or assistive device lessor in this state, or by a consumer or assistive device lessor in another state under a similar law of that state, may be sold or leased again in this state unless full disclosure of the reasons for return is made to any prospective buyer or lessee. 12. Each consumer shall have the option of submitting any dispute arising under this section upon the payment of a prescribed fee to an alternative arbitration mechanism established pursuant to regulations promulgated by the attorney general. 13. Such alternate arbitration shall be conducted by a professional arbitrator or arbitration firm appointed by and under regulations established by the attorney general. Such mechanism shall ensure the personal objectivity of its arbitrators and the right of each party to present its case, to be in attendance during any presentation made by the other party and to rebut or refute such presentation. 14. This section shall not be construed to limit rights or remedies available to a consumer under any other law. 15. Any waiver by a consumer of rights under this section is void. (17) In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this section. The court shall ward a consumer who prevails in such an action twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief that the court determines is appropriate.