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June 2 2022: The End of the Beginning in the Fight for the Right To Repair?
Hold on to your hats. As Colorado’s Governor prepares to sign the first right to repair into law in more than a decade, New York legislators may go further: passing a right to repair electronics.
June 2 2022 is shaping up to be a milestone in the fight for a right to repair in the U.S. True, it may not be the end or even “the beginning of the end” of monopolistic, anti-repair and anti-consumer corporate practices like those of Apple and John Deere. But it may be - to quote Winston Churchill - “the end of the beginning.”
Here’s what’s going down:
First, this afternoon Colorado governor Jared Polis will sign into law two bills that, together, create a legal right to repair power wheelchairs in Colorado. House Bill 22-1031, the THE "CONSUMER WHEELCHAIR REPAIR BILL OF RIGHTS ACT” and House Bill 22-1290, which contains reforms to Colorado’s state Medicaid program designed to streamline owner and independent repair of the devices.
Together, the bills will transform a dysfunctional and constrained market for power wheelchair parts, service and repair that has wheelchair users in the state waiting weeks - even months - to see simple repairs completed. The plight of Colorado wheelchair users got attention in the press, like Vice’s coverage of this 2021 hearing on a right to repair law in which wheelchair users testified about the challenges they face.
Market Consolidation Plays A Part
The story that emerged is a complex one. As I reported in this Mother Jones article, part of it has to do with rapid consolidation in the market for Complex Rehabilitation Technology (CRT), which includes power wheelchairs. In the last decade two private equity funded firms, Numotion and National Seating and Mobility have scooped up the lions share of the CRT market nationally. In the process, they gobbled up scores of smaller, locally owned competitors and forced countless others out of business by leveraging their size and scale to outbid them for Medicare and Medicaid business. Coloradans who are wheelchair users say that Numotion, for example, is essentially the “only game in town” in their state when it comes to wheelchair service and repair.
But the other part of the story has to do with our broken-a** healthcare system here in the U.S. Long and short: federal Medicare and state Medicaid programs are the two biggest “customers” of wheelchair OEMs and their authorized suppliers. They set the tune and their rules for submitting claims and getting reimbursed for service and repair essentially set the ground rules by which companies like Numotion and National Seating play. And those rules, by and large, focus on initial sales of wheelchairs, while paying scant attention to the need for ongoing service, maintenance and repair that keeps wheelchairs - and especially complex power wheelchairs - working.
Ask Numotion and National Seating and they will tell you that, as it stands, repair and service is a loss leader for them - the byzantine rules and bureaucracy lead to needless and cumbersome delays as they wait for approvals for even simple or routine maintenance. As this US News report notes: Medicare also limits what it will pay for repair and servicing to in-home wheelchairs rather than their more rugged outdoor cousins. State medicaid programs typically cover the more rugged outdoor chairs, but the gap in coverage necessitates and time consuming two-step in which CRT suppliers first submit claims for repair and service for outdoor power wheelchairs to Medicare and then have to wait for that program to reject the claim before resubmitting it to the state Medicare program, which covers it. Countless wheelchair users told me about the needless delays they endured waiting for that bureaucratic process to play out, with completely predictable outcomes.
In short: long wait times and delays for service are a long-standing problem and a well-documented one. Despite that, the folks running Medicare and state Medicaid programs have mostly turned a blind eye to it and focused on bottom line issues: getting the biggest bang for their taxpayer buck via competitive bidding, no matter the impact on wheelchair users.
Colorado tackles repair market- and billing woes
That’s why Colorado’s approach to addressing the repair and service issues of its wheelchair users is so inspired. Legislators there passed not one bill, but two. The first addresses repair restrictions on wheelchairs. Similar to Massachusetts first-in-the-nation auto right to repair bill, passed more than a decade ago, it requires wheelchair OEMs to make available to owners and independent repair pros “at fair and reasonable cost…any documentation, parts, embedded software, firmware, or tools that are intended for use with the equipment.” That includes updates to documentation and software.
It also requires OEMs to make available parts, software, firmware or tools needed to reset electronic locks or functions disabled during a repair. Manufacturers are allowed to make the documentation, parts, software etc. available via a “secure release system” but they need to make it available, and can’t charge any more than the lowest/best price they charge authorized repair technicians.
Control over digital locks - just in time!
Winning the right to disable and reset digital locks for the purposes of repair is actually a huge and timely win. That’s because most power wheelchairs in use today are not yet part of the Internet of Things, unlike phones, home appliances, late model cars and agricultural equipment. But that’s changing fast. For example, Permobil, a big power wheelchair OEM, has introduced a service called “ConnectMe” and Permobil Connect-ready wheelchairs with its Corpus and Corpus VS models. The software provides “always on” connectivity to the chair and can be used for fleet management and predictive maintenance.
These kinds of features could also be used to lock down chairs and constrain who has the ability to perform maintenance on these devices by leveraging part serialization and other techniques used by Deere, Apple, and other electronics giants. And, with a mandated 5 year refresh cycle on power wheelchairs ensuring that late model, Internet connected hardware will soon be making its way into Coloradans homes, the Colorado law is coming not a moment too soon.
Fixing Medicaid Billing
And legislators passed another bill to address the billing issues that also hinder simple repairs. House Bill 1290 prohibits the state’s department of health care policy and financing from requiring prior authorization for any repair of complex rehabilitation technology (CRT).
It also requires the state’s medical services board to promulgate rules establishing repair metrics for all CRT suppliers and CRT professionals and, starting in 2024, report on the metrics and compliance with the metrics. For suppliers who fall short of the minimum repair standards, the State can issue a fine. It also requires the state department to reimburse labor costs at a rate that is 25% higher for clients residing in rural areas than urban areas, addressing the issue of repair accessibility in Colorado’s many rural communities.
The End of the Beginning?
As Churchill said - this isn’t the end, or even the beginning of the end. But it is an end to the beginning. Colorado is the first new right to repair law anywhere in the U.S. in a decade. (It follows a successful ballot measure in Massachusetts in November 2020 to expand that state’s existing auto right to repair law.) As with the British victory over Rommel in Egypt: a victory is a victory and worth celebrating.
But there’s more to do. This is one victory in one state. Unlike automakers - which signed a memorandum of understanding in 2014 that recognized Massachusetts right to repair law nationally, power wheelchair OEMs and CRT suppliers may abide by Colorado’s law with their Colorado customers without feeling obliged to extend the same consumer rights to customers in other states. Don Clayback, executive director of the National Coalition for Assistive and Rehab Technology, an industry group representing wheelchair suppliers, said as much when interviewed by US News. “We would expect changes will be limited to Colorado,” he said.
All Eyes on New York
Which brings us to the other looming story on this June 2nd, which is what’s happening in New York, where the State Senate voted yesterday to approve Senate Bill S4104A, the Digital Fair Repair Act governing the sale of electronic equipment and providing diagnostic and repair information.
That vote followed a similar victory last year, when Right to Repair also passed out of the NY State Senate (the first time a right to repair bill made it through a legislative chamber in the U.S.). Back then, however, there was no parallel effort in the New York State Assembly. This year, there is: A7006B, which is currently scheduled for debate on the floor of the New York State Assembly and - if it comes up for a vote - is likely to pass overwhelmingly.
If that happens, June 2 would truly be a day worth celebrating - a day in which not one but two right to repair bills became law in (parts of) the U.S., covering a wide array of consumer electronics and, at least, one medical device. Cross your fingers!