87R9788 SCL-D
By: Meza H.B. No. 2541
A BILL TO BE ENTITLED
AN ACT
relating to the inspection, diagnosis, maintenance, and repair of
powered medical equipment.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Texas Powered
Medical Equipment Right to Repair Act.
SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
amended by adding Chapter 113 to read as follows:
CHAPTER 113. INSPECTION, DIAGNOSIS, MAINTENANCE, AND REPAIR OF
POWERED MEDICAL EQUIPMENT
Sec. 113.001. DEFINITIONS. In this chapter:
(1) "Authorized repair provider" means an individual
or business entity that is not an affiliate of but has an
arrangement with an original equipment manufacturer:
(A) under which the original equipment
manufacturer grants to the individual or business entity a license
to use a trade name, service mark, or other proprietary identifier
for the purpose of offering inspection, diagnosis, maintenance, or
repair services for powered medical equipment under the name of the
original equipment manufacturer; or
(B) to offer inspection, diagnosis, maintenance,
or repair services for powered medical equipment on behalf of the
original equipment manufacturer.
(2) "Documentation" means any manual, diagram,
reporting output, service code description, schematic diagram, or
other guidance or information used in the inspection, diagnosis,
maintenance, or repair of powered medical equipment.
(3) "Embedded software" means any programmable
instructions provided on firmware that is delivered with powered
medical equipment or with a replacement part for that equipment for
the purpose of equipment operation, including all relevant patches
and fixes made by the original equipment manufacturer of the
powered medical equipment or replacement part for that purpose.
(4) "Fair and reasonable terms" means:
(A) with respect to making available a
replacement part, tool, documentation, or training course and
materials, making the part, tool, documentation, or course and
materials available at a cost and on terms equivalent to the most
favorable cost and terms offered to an original equipment
manufacturer's authorized repair provider that:
(i) account for:
(a) any discount, rebate, convenient
means of delivery, means of enabling fully restored and updated
functionality, rights of use, or other incentive or preference the
original equipment manufacturer offers to an authorized repair
provider; or
(b) any additional cost, burden, or
impediment the original equipment manufacturer imposes on an
independent repair provider;
(ii) are not conditioned on imposing a
substantial obligation or restriction that is not reasonably
necessary for enabling the owner or independent repair provider to
engage in the inspection, diagnosis, maintenance, or repair of
powered medical equipment made by or on behalf of the original
equipment manufacturer; and
(iii) are not conditioned on an arrangement
described by Subdivision (1);
(B) with respect to making available
documentation, including any relevant updates, making the
documentation available at no cost, except that an original
equipment manufacturer may charge the reasonable actual cost of
preparing and sending a copy of the documentation when the
documentation is requested in physical printed form; and
(C) with respect to providing software tools,
making the tools available:
(i) at no cost;
(ii) without requiring authorization or
Internet access;
(iii) without imposing impediments to
access or use in the course of effecting the diagnosis,
maintenance, or repair of powered medical equipment; and
(iv) in a manner that does not impair the
efficient and cost-effective diagnosis, maintenance, or repair of
powered medical equipment to enable full functionality of the
equipment.
(5) "Firmware" means a software program or set of
instructions programmed on powered medical equipment or on a
replacement part for the equipment that allows the equipment or
replacement part to communicate with itself or other computer
hardware.
(6) "Independent repair provider" means an individual
or business entity operating in this state:
(A) who does not, on the individual or entity's
own behalf or through an affiliate, have an arrangement with an
original equipment manufacturer as described by Subdivision (1) and
who is engaged in inspection, diagnosis, maintenance, or repair of
powered medical equipment; or
(B) that is an original equipment manufacturer,
or who is an individual or business entity who has or is affiliated
with an individual or entity who has an arrangement with that
original equipment manufacturer as described by Subdivision (1),
only with respect to inspection, diagnosis, maintenance, or repair
of powered medical equipment not manufactured by or sold under the
name of that original equipment manufacturer.
(7) "Original equipment manufacturer" means a
business entity that sells, leases, or otherwise supplies to an
individual or business new powered medical equipment manufactured
by or on behalf of the business entity.
(8) "Owner" means an individual or business entity who
owns or leases powered medical equipment purchased or used in this
state.
(9) "Powered medical equipment" means a powered
instrument, apparatus, implement, machine, contrivance, implant,
or other article, including a component or accessory, that is used
in the treatment, monitoring, or diagnosis of a patient.
(10) "Replacement part" means a new or used
replacement part made available by the original equipment
manufacturer for the purpose of diagnosis, maintenance, or repair
of powered medical equipment manufactured by or sold or otherwise
supplied by, or on behalf of, the original equipment manufacturer.
(11) "Tool" means a software program, hardware
implement, or other apparatus used in the inspection, diagnosis,
maintenance, or repair of powered medical equipment. The term
includes software or another mechanism that provides, programs, or
pairs a new replacement part, calibrates functionality, or performs
any other function required to bring the equipment to a fully
functional condition.
(12) "Trade secret" means information, including a
formula, pattern, compilation, program device, method, technique,
or process that:
(A) derives independent economic value, actual
or potential, from not being generally known to, and not being
readily ascertainable using proper means by, another person who can
obtain economic value from its disclosure or use; and
(B) is the subject of an effort that is
reasonable under the circumstances to maintain its secrecy.
Sec. 113.002. REQUIREMENTS FOR ORIGINAL EQUIPMENT
MANUFACTURERS. (a) For powered medical equipment sold or used in
this state, the original equipment manufacturer of the equipment
shall make available on fair and reasonable terms to any
independent repair provider or to an owner of powered medical
equipment manufactured by or on behalf of, or sold or otherwise
supplied by, the original equipment manufacturer:
(1) documentation, replacement parts, and tools,
including any updates to information or embedded software, and
training courses and materials for that equipment for purposes of
the inspection, diagnosis, maintenance, or repair of the equipment;
and
(2) for equipment containing an electronic security
lock or other security-related function, any special
documentation, replacement part, or tool needed to:
(A) disable the lock or function; and
(B) reset the lock or function when disabled in
the course of inspection, diagnosis, maintenance, or repair of the
equipment.
(b) An original equipment manufacturer that makes an
express warranty with respect to powered medical equipment with a
wholesale price of $100 or more shall provide any documentation,
replacement part, and tool to enable the repair of the equipment
during the warranty period, at an equitable price and convenience
of delivery and of enabling functionality, with regard to:
(1) the actual cost to the original equipment
manufacturer to prepare and distribute the documentation, part, or
tool, exclusive of any research and development costs incurred;
(2) the ability of owners and independent repair
providers to afford the documentation, part, or tool; and
(3) the means by which the documentation, part, or
tool is distributed.
(c) An original equipment manufacturer may make available
the documentation, replacement part, or tool under Subsection
(a)(2) through an appropriate secure release system.
(d) Subsection (a)(1) does not require a powered medical
equipment manufacturer to make available a replacement part if the
part is no longer available to the original equipment manufacturer.
(e) An original equipment manufacturer who offers the
services of inspection, diagnosis, maintenance, or repair of the
manufacturer's own powered medical equipment, and who does not have
an authorized repair arrangement with an individual or business
entity that is not an affiliate, is considered to be an authorized
repair provider with respect to that equipment.
(f) The training courses and materials described by
Subsection (a)(1) must include information on the operation of
powered medical equipment.
Sec. 113.003. CONSTRUCTION OF CHAPTER. (a) Nothing in this
chapter shall be construed to require an original equipment
manufacturer to divulge a trade secret to an owner or an independent
service provider except as necessary to provide documentation,
replacement parts, tools, and training courses and materials on
fair and reasonable terms as provided by this chapter.
(b) Nothing in this chapter shall be construed to alter the
terms of an arrangement described by Section 113.001(1) between an
authorized repair provider and original equipment manufacturer,
including the performance or provision of warranty or recall repair
work by the authorized repair provider on behalf of the original
equipment manufacturer under an arrangement described by Section
113.001(1), except that any provision in an agreement between an
authorized repair provider and original equipment manufacturer
that purports to waive, avoid, restrict, or limit the original
equipment manufacturer's obligation to comply with this chapter is
void and unenforceable.
Sec. 113.004. DECEPTIVE TRADE PRACTICE. A violation of
this chapter is a deceptive trade practice in addition to the
practices described by Subchapter E, Chapter 17, and is actionable
under that subchapter.
SECTION 3. To the extent of a conflict between Chapter 113,
Business & Commerce Code, as added by this Act, and a provision of
an agreement between an authorized repair provider and original
equipment manufacturer entered into before the effective date of
this Act, the provision of the agreement prevails.
SECTION 4. This Act takes effect September 1, 2021.