Texas 2021 - 87th Regular

Texas House Bill HB2541 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R9788 SCL-D
2	2	By: Meza H.B. No. 2541
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the inspection, diagnosis, maintenance, and repair of
8	8	powered medical equipment.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. This Act may be cited as the Texas Powered
11	11	Medical Equipment Right to Repair Act.
12	12	SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
13	13	amended by adding Chapter 113 to read as follows:
14	14	CHAPTER 113. INSPECTION, DIAGNOSIS, MAINTENANCE, AND REPAIR OF
15	15	POWERED MEDICAL EQUIPMENT
16	16	Sec. 113.001. DEFINITIONS. In this chapter:
17	17	(1) "Authorized repair provider" means an individual
18	18	or business entity that is not an affiliate of but has an
19	19	arrangement with an original equipment manufacturer:
20	20	(A) under which the original equipment
21	21	manufacturer grants to the individual or business entity a license
22	22	to use a trade name, service mark, or other proprietary identifier
23	23	for the purpose of offering inspection, diagnosis, maintenance, or
24	24	repair services for powered medical equipment under the name of the
25	25	original equipment manufacturer; or
26	26	(B) to offer inspection, diagnosis, maintenance,
27	27	or repair services for powered medical equipment on behalf of the
28	28	original equipment manufacturer.
29	29	(2) "Documentation" means any manual, diagram,
30	30	reporting output, service code description, schematic diagram, or
31	31	other guidance or information used in the inspection, diagnosis,
32	32	maintenance, or repair of powered medical equipment.
33	33	(3) "Embedded software" means any programmable
34	34	instructions provided on firmware that is delivered with powered
35	35	medical equipment or with a replacement part for that equipment for
36	36	the purpose of equipment operation, including all relevant patches
37	37	and fixes made by the original equipment manufacturer of the
38	38	powered medical equipment or replacement part for that purpose.
39	39	(4) "Fair and reasonable terms" means:
40	40	(A) with respect to making available a
41	41	replacement part, tool, documentation, or training course and
42	42	materials, making the part, tool, documentation, or course and
43	43	materials available at a cost and on terms equivalent to the most
44	44	favorable cost and terms offered to an original equipment
45	45	manufacturer's authorized repair provider that:
46	46	(i) account for:
47	47	(a) any discount, rebate, convenient
48	48	means of delivery, means of enabling fully restored and updated
49	49	functionality, rights of use, or other incentive or preference the
50	50	original equipment manufacturer offers to an authorized repair
51	51	provider; or
52	52	(b) any additional cost, burden, or
53	53	impediment the original equipment manufacturer imposes on an
54	54	independent repair provider;
55	55	(ii) are not conditioned on imposing a
56	56	substantial obligation or restriction that is not reasonably
57	57	necessary for enabling the owner or independent repair provider to
58	58	engage in the inspection, diagnosis, maintenance, or repair of
59	59	powered medical equipment made by or on behalf of the original
60	60	equipment manufacturer; and
61	61	(iii) are not conditioned on an arrangement
62	62	described by Subdivision (1);
63	63	(B) with respect to making available
64	64	documentation, including any relevant updates, making the
65	65	documentation available at no cost, except that an original
66	66	equipment manufacturer may charge the reasonable actual cost of
67	67	preparing and sending a copy of the documentation when the
68	68	documentation is requested in physical printed form; and
69	69	(C) with respect to providing software tools,
70	70	making the tools available:
71	71	(i) at no cost;
72	72	(ii) without requiring authorization or
73	73	Internet access;
74	74	(iii) without imposing impediments to
75	75	access or use in the course of effecting the diagnosis,
76	76	maintenance, or repair of powered medical equipment; and
77	77	(iv) in a manner that does not impair the
78	78	efficient and cost-effective diagnosis, maintenance, or repair of
79	79	powered medical equipment to enable full functionality of the
80	80	equipment.
81	81	(5) "Firmware" means a software program or set of
82	82	instructions programmed on powered medical equipment or on a
83	83	replacement part for the equipment that allows the equipment or
84	84	replacement part to communicate with itself or other computer
85	85	hardware.
86	86	(6) "Independent repair provider" means an individual
87	87	or business entity operating in this state:
88	88	(A) who does not, on the individual or entity's
89	89	own behalf or through an affiliate, have an arrangement with an
90	90	original equipment manufacturer as described by Subdivision (1) and
91	91	who is engaged in inspection, diagnosis, maintenance, or repair of
92	92	powered medical equipment; or
93	93	(B) that is an original equipment manufacturer,
94	94	or who is an individual or business entity who has or is affiliated
95	95	with an individual or entity who has an arrangement with that
96	96	original equipment manufacturer as described by Subdivision (1),
97	97	only with respect to inspection, diagnosis, maintenance, or repair
98	98	of powered medical equipment not manufactured by or sold under the
99	99	name of that original equipment manufacturer.
100	100	(7) "Original equipment manufacturer" means a
101	101	business entity that sells, leases, or otherwise supplies to an
102	102	individual or business new powered medical equipment manufactured
103	103	by or on behalf of the business entity.
104	104	(8) "Owner" means an individual or business entity who
105	105	owns or leases powered medical equipment purchased or used in this
106	106	state.
107	107	(9) "Powered medical equipment" means a powered
108	108	instrument, apparatus, implement, machine, contrivance, implant,
109	109	or other article, including a component or accessory, that is used
110	110	in the treatment, monitoring, or diagnosis of a patient.
111	111	(10) "Replacement part" means a new or used
112	112	replacement part made available by the original equipment
113	113	manufacturer for the purpose of diagnosis, maintenance, or repair
114	114	of powered medical equipment manufactured by or sold or otherwise
115	115	supplied by, or on behalf of, the original equipment manufacturer.
116	116	(11) "Tool" means a software program, hardware
117	117	implement, or other apparatus used in the inspection, diagnosis,
118	118	maintenance, or repair of powered medical equipment. The term
119	119	includes software or another mechanism that provides, programs, or
120	120	pairs a new replacement part, calibrates functionality, or performs
121	121	any other function required to bring the equipment to a fully
122	122	functional condition.
123	123	(12) "Trade secret" means information, including a
124	124	formula, pattern, compilation, program device, method, technique,
125	125	or process that:
126	126	(A) derives independent economic value, actual
127	127	or potential, from not being generally known to, and not being
128	128	readily ascertainable using proper means by, another person who can
129	129	obtain economic value from its disclosure or use; and
130	130	(B) is the subject of an effort that is
131	131	reasonable under the circumstances to maintain its secrecy.
132	132	Sec. 113.002. REQUIREMENTS FOR ORIGINAL EQUIPMENT
133	133	MANUFACTURERS. (a) For powered medical equipment sold or used in
134	134	this state, the original equipment manufacturer of the equipment
135	135	shall make available on fair and reasonable terms to any
136	136	independent repair provider or to an owner of powered medical
137	137	equipment manufactured by or on behalf of, or sold or otherwise
138	138	supplied by, the original equipment manufacturer:
139	139	(1) documentation, replacement parts, and tools,
140	140	including any updates to information or embedded software, and
141	141	training courses and materials for that equipment for purposes of
142	142	the inspection, diagnosis, maintenance, or repair of the equipment;
143	143	and
144	144	(2) for equipment containing an electronic security
145	145	lock or other security-related function, any special
146	146	documentation, replacement part, or tool needed to:
147	147	(A) disable the lock or function; and
148	148	(B) reset the lock or function when disabled in
149	149	the course of inspection, diagnosis, maintenance, or repair of the
150	150	equipment.
151	151	(b) An original equipment manufacturer that makes an
152	152	express warranty with respect to powered medical equipment with a
153	153	wholesale price of $100 or more shall provide any documentation,
154	154	replacement part, and tool to enable the repair of the equipment
155	155	during the warranty period, at an equitable price and convenience
156	156	of delivery and of enabling functionality, with regard to:
157	157	(1) the actual cost to the original equipment
158	158	manufacturer to prepare and distribute the documentation, part, or
159	159	tool, exclusive of any research and development costs incurred;
160	160	(2) the ability of owners and independent repair
161	161	providers to afford the documentation, part, or tool; and
162	162	(3) the means by which the documentation, part, or
163	163	tool is distributed.
164	164	(c) An original equipment manufacturer may make available
165	165	the documentation, replacement part, or tool under Subsection
166	166	(a)(2) through an appropriate secure release system.
167	167	(d) Subsection (a)(1) does not require a powered medical
168	168	equipment manufacturer to make available a replacement part if the
169	169	part is no longer available to the original equipment manufacturer.
170	170	(e) An original equipment manufacturer who offers the
171	171	services of inspection, diagnosis, maintenance, or repair of the
172	172	manufacturer's own powered medical equipment, and who does not have
173	173	an authorized repair arrangement with an individual or business
174	174	entity that is not an affiliate, is considered to be an authorized
175	175	repair provider with respect to that equipment.
176	176	(f) The training courses and materials described by
177	177	Subsection (a)(1) must include information on the operation of
178	178	powered medical equipment.
179	179	Sec. 113.003. CONSTRUCTION OF CHAPTER. (a) Nothing in this
180	180	chapter shall be construed to require an original equipment
181	181	manufacturer to divulge a trade secret to an owner or an independent
182	182	service provider except as necessary to provide documentation,
183	183	replacement parts, tools, and training courses and materials on
184	184	fair and reasonable terms as provided by this chapter.
185	185	(b) Nothing in this chapter shall be construed to alter the
186	186	terms of an arrangement described by Section 113.001(1) between an
187	187	authorized repair provider and original equipment manufacturer,
188	188	including the performance or provision of warranty or recall repair
189	189	work by the authorized repair provider on behalf of the original
190	190	equipment manufacturer under an arrangement described by Section
191	191	113.001(1), except that any provision in an agreement between an
192	192	authorized repair provider and original equipment manufacturer
193	193	that purports to waive, avoid, restrict, or limit the original
194	194	equipment manufacturer's obligation to comply with this chapter is
195	195	void and unenforceable.
196	196	Sec. 113.004. DECEPTIVE TRADE PRACTICE. A violation of
197	197	this chapter is a deceptive trade practice in addition to the
198	198	practices described by Subchapter E, Chapter 17, and is actionable
199	199	under that subchapter.
200	200	SECTION 3. To the extent of a conflict between Chapter 113,
201	201	Business & Commerce Code, as added by this Act, and a provision of
202	202	an agreement between an authorized repair provider and original
203	203	equipment manufacturer entered into before the effective date of
204	204	this Act, the provision of the agreement prevails.
205	205	SECTION 4. This Act takes effect September 1, 2021.