201 Mass. Reg. 19.01

Current through Register 1527, August 2, 2024

Section 19.01 - Purpose and Definitions

(1)Purpose. 201 CMR 19.00 sets forth the procedures for the operation and administration of a state administered, customized wheelchair arbitration program. It is designed to promote the speedy, efficient, and fair disposition of disputes arising from a consumer's private purchase or lease of a new, but defective, customized wheelchair when the consumer has paid all or some costs out of pocket.

(2)Scope. 201 CMR 19.00 shall apply to state administered, customized wheelchair arbitration services for consumers who have paid all or some costs out of pocket for their private purchase or lease of a new customized wheelchair.

(3)Definitions. Unless otherwise stated, terms used in 201 CMR 19.00 are as defined or used in M.G.L. c. 93, § 107.

Applicant. The consumer under M.G.L c. 93, § 107, who files a request, on an approved form, for arbitration before an OCABR approved arbitrator claiming a defective customized wheelchair.

Arbitrator. The individual or entity approved and appointed by the Undersecretary of the Office of Consumer Affairs and Business Regulation to conduct customized wheelchair arbitrations.

Award/Appeal Period. The 21-day period for compliance with or appeal of a finding in favor of the consumer by the arbitrator.

Continuing Costs. All incidental costs accrued during that period after the hearing and before the consumer has been tendered a full refund for or replacement of the customized wheelchair as ordered while the consumer is still in possession of the defective, customized wheelchair.

Customized Wheelchair. A new manual or motorized wheeled device which is adapted to meet the specific needs of a particular individual's disability, excluding an automobile, van or truck and for which a consumer pays all or some costs out of pocket for their private purchase or lease.

Consumer.

(a) The purchaser of a new customized wheelchair if such wheelchair was purchased from a customized wheelchair dealer or manufacturer for purposes other than resale;

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

(c) A person who may enforce the warranty; or

(d) A person who leases a customized wheelchair from a customized wheelchair lessor under a written lease. Excluded from Consumer is any individual who received a customized wheelchair provided by or through the Commonwealth, its agencies, bureaus, boards, commissions, authorities, quasi-public agencies, or any of its political subdivisions, or any nonprofit organization.

Customized Wheelchair Dealer. A person in the business of selling customized wheelchairs.

Customized Wheelchair Lessor. A person who leases a customized wheelchair to a consumer or who holds the lessor's rights under a written lease.

Manufacturer. A person or his agent who manufactures or assembles customized wheelchairs, including an importer, distributor, factory branch, distributor branch and warrantors of the manufacturer's customized wheelchair; provided, however, Manufacturer shall not include a customized wheelchair dealer.

Nonconformity. A condition or defect that substantially impairs the use, value or safety of a customized wheelchair and which is covered by an express warranty applicable to the customized wheelchair or to a component of the customized wheelchair. Nonconformity shall not include a condition or defect which results from abuse, neglect or the unauthorized modification or alteration of the customized wheelchair by a consumer.

OCABR. The Office of Consumer Affairs and Business Regulation.

Reasonable Attempt To Repair. Any of the following occurring within the term of an express warranty period applicable to a new customized wheelchair within one year after delivery of the customized wheelchair to a consumer, whichever occurs first:

(a) A nonconformity within the warranty is subject to repair at least four times by the manufacturer, customized wheelchair lessor, or any of the manufacturer's authorized dealers and the nonconformity continues; or

(b) The customized wheelchair is out of service for an aggregate of at least 30 days because of a warranty nonconformity.

Request for Arbitration Form. The form provided by the Undersecretary of OCABR to applicants filing for arbitration.

201 CMR 19.01

Adopted by Mass Register Issue 1367, eff. 6/15/2018.