Why EFF Supports Colorado’s Right to Repair Wheelchairs Law

Wheelchairs Break

Three million Americans rely on wheelchairs, which makes wheelchairs a key driver of the $50 billion Durable Medical Equipment industry. Many people depend on wheelchairs to help with the basic necessities of life: getting around the house, going to work, shopping, and spending time with families. This is especially true of powered wheelchairs, which integrate sophisticated computers that allow wheelchairs to respond dynamically to their environment.

Anyone who’s ever dropped a cellphone or laptop knows that any gadget that travels with you around the world will eventually need repairs. This goes double for powered wheelchairs, not least because Medicare has adopted a narrow interpretation of its statutory obligations and will only pay for indoor chairs, despite the fact that the owners of these chairs use them outdoors, as well.

Any product that travels with you is likely to break, eventually. A product that is designed solely for indoor usage but gets used outdoors is even more at risk. But for powered wheelchair users, this situation is gravely worsened by an interlocking set of policies regarding repair and reimbursement that mean that when their chairs are broken, it can take months to get them repaired.

This has serious consequences. Wheelchairs are powerful tools that enable mobility and freedom; But broken wheelchairs can strand people at home—or even in bed, at risk of bedsores and other complications from immobilization—away from family, friends, school and work. Broken wheelchairs can also be dangerous for their users, leading to serious injuries. 

Stranded

Stranded is a new report from the Public Interest Research Group (PIRG), based on interviews with 141 wheelchair users about their experiences with mechanical and electrical failures in their powered chairs. 

The report documents the dismally frequent incidents of wheelchair failures (93% of respondents needed wheelchair service in the previous year, 68% needed two or more repairs), and the long service delays that wheelchair users must endure (62% waited four or more weeks for each repair; 40% waited seven or more weeks). 

Most importantly for addressing this untenable situation, the authors tease apart the many factors that lead to these lengthy service delays and endorse legislation—Colorado’s recently passed Consumer Right To Repair Powered Wheelchairs—as a means of bringing immediate, dramatic improvements to the lives of wheelchair users.

The Fix is Nixed 

Almost everything breaks eventually, and good product design isn’t merely a matter of making gadgets that don’t need frequent service—it’s also a matter of making gadgets easy to fix then when they do break down.

Here, too, Medicare rules play a role. Medicare reimburses wheelchair vendors for parts and labor—but not for their technicians’ travel to examine, pick up, and return a wheelchair.

For wheelchair users with private insurance, repairs are delayed while they wait for their insurers to approve their repairs. 

All that means that repair is a money-losing proposition for large firms, so they underinvest in staff, training and facilities. 

But, as Stranded makes clear, manufacturers of Complex Rehabilitation Technology (CRT)—the formal classification for powered wheelchairs—have adopted repair-hostile tactics that make all of this much, much worse for wheelchair users.

Why Good Wheelchairs Go Bad

The PIRG report makes it clear that there are complex reasons why it’s so hard to get your wheelchair fixed—and also makes it clear that wheelchair users overwhelmingly support legislation that would let them get service at independent fix-it shops or fix their own chairs. Giving wheelchair users the right to repair won’t fix the structural problems with the industry, but it will fix their wheelchairs. That’s an important start.

So why is it so hard to fix wheelchairs? Writing for Kaiser Health News, Markian Hawryluk explains that the powered wheelchair industry is dominated by just two private equity-owned companies: Numotion and National Seating and Mobility, both of whom made deep cuts to their service budgets as part of their private equity owners’ plans to realize a profit on their investments.

But the wheelchair duopoly isn’t (just) a result of lax merger scrutiny and private equity buying-sprees. Medicare’s competitive bidding process “favors large companies that can achieve economies of scale in manufacturing and administrative costs, often at the price of quality and customer service.” To make things worse, Medicare doesn’t cover preventative maintenance, and will only replace chairs every five years. 

Let’s recap. Powered wheelchair users:

• have to use chairs designed for indoor use even when they’re outside; 
• the chairs are made  by low-bid contractors who skimp on quality; 
• aren’t entitled to preventative maintenance; and
• must make their chairs last for five years.

Small wonder that these chairs need a lot of service! 

Oh Great, There’s DRM in Wheelchairs Now

Wheelchair users don’t want to wait for repair, and so they often source their own parts and do their own repairs. When confronted with a choice between injury and immobilization or paying out of pocket for parts and tools, many wheelchair users feel they have no choice but to pay.

Home repairs that involve powered chairs’ electronic systems are a different matter. Not because electronics are more complex—but because manufacturers use “Digital Rights Management” (DRM): digital locks that are designed to block independent access.

DRM may be more familiar to you from music, ebooks, video games, and movies. While DRM has been around in various forms since at least 1979, it only came into its own with the passage of the Digital Millennium Copyright Act (DMCA) in 1998.

Section 1201 of the DMCA deals with DRM. It says that “trafficking” in a tool or even information that helps someone bypass an “access control” for a copyrighted work is a felony that can be punishable by up to five years in prison and up to $500,000 in fines. 

Most importantly, DMCA 1201 doesn’t limit itself to banning bypassing DRM in order to infringe copyright (for example, in order to make thousands of copies of a DVD and sell them on the black market). That has allowed companies to use copyright law to criminalize businesses that have nothing to do with copyright. A company that designs a product that has some DRM that prevents repair or maintenance or improvement can use Section 1201 to attack anyone who engages in those activities, because removing the DRM is itself against the law. To be clear, the  DMCA’s ban on bypassing DRM is unconstitutional, and gets in the way of many activities beyond repair.  That’s why we’re suing to overturn it.   

But in the meantime, the DRM in wheelchairs prevents wheelchair users and independent technicians from diagnosing routine problems with the chairs’ electronics. It also stops wheelchair users from making routine adjustments to their wheelchairs, as when “a wheelchair user with a balky wheel or failing motor may need to adjust the power wheelchair’s speed damping setting, which is accomplished using the administrative software” or when “a wheelchair user who installs a different tire on their chair for navigating inclement weather may want to access administrative software features to adjust the chair’s grip parameters.”

Access to power wheelchairs’ electronic systems is often restricted to people with cryptographic security dongles, as well as passwords. As the PIRG report notes, “without a [hardware] key, the diagnostic tool [for chairs with Dynamix DX control systems] can display parameter values and diagnostic messages, but nothing can be edited or written to a power wheelchair’s controller.”

DRM also restricts powered wheelchair users’ access to settings that allow them to fine-tune their controls. Arthur Torrey describes how badly tuned delays between input devices and steering make controlling a wheelchair “like driving with bungee cords.” He also describes how these restrictions prevent wheelchair users from increasing speed and handling restrictions to keep up with their skill at operating their chairs. 

Parts is Parts

The CRT duopoly charge shocking markups on their parts, extracting margins that put even the aerospace industry to shame. In Stranded, we read accounts like these:

• “Had a flat tire. new (sp) innertube was $6 on Amazon. (National CRT supplier) Numotion wanted to replace both wheels at a cost of $300 to Medicaid and 6-8 weeks to get them. Got the innertubes in 2 days but they would not install them”
• “Numotion took 4 months and charged $500 for a button that allows Bruce to power his wheelchair. Without it, he is stuck in bed. Got it overnight mailed from eBay for about $20”

 There are plenty of skilled technicians who can change a button or an inner-tube, including powered wheelchair users themselves. 

Robin Bouldoc discussed this with the PIRG researchers. Bouldoc’s husband has primary, progressive multiple sclerosis and uses a powered chair with a respirator and a device that allows him to control the chair using head movements.  She asked “Why can’t the local bicycle shop change the flat tire on our wheelchair?” 

Arthur Torrey is one of the other wheelchair users interviewed for the report. He is paraplegic, and feels confident that he can perform many routine repairs on his chair: “There’s nothing about manual wheelchairs or power wheelchairs that is that complex or difficult.” 

This was affirmed by wheelchair technicians interviewed for the report, who said that “most repairs to wheelchairs are straightforward and don’t require specialized skills or training, just a familiarity with mechanical devices.”

But despite this, the CRT companies refuse to ship parts to wheelchair users, blaming Medicare and Medicaid policies that refuse to reimburse them for parts that are sent to wheelchair users directly.

Right To Repair Wheelchairs

The Consumer Right To Repair Powered Wheelchairs Act (HB22-1031) has passed the Colorado legislature and Governor Jared Polis is expected to sign it into law. The legislative summary says  it all:

The bill requires a manufacturer to provide parts, embedded software, firmware, tools, or documentation, such as diagnostic, maintenance, or repair manuals, diagrams, or similar information, to independent repair providers and owners of the manufacturer's powered wheelchairs to allow an independent repair provider or owner to conduct diagnostic, maintenance, or repair services on the owner's powered wheelchair. A manufacturer's failure to comply with the requirement is a deceptive trade practice. In complying with the requirement to provide these resources, a manufacturer need not divulge any trade secrets to independent repair providers and owners.

Any new contractual provision or other arrangement that a manufacturer enters into that would remove or limit the manufacturer's obligation to provide these resources to independent repair providers and owners is void and unenforceable.

While this is the first successful Right to Repair law for wheelchairs, it bears a striking similarity to dozens of Right to Repair laws introduced in state houses that sought to protect your right to fix your phone, laptop, appliances, car or tractor. 

These laws have faced stiff opposition from an axis of powerful, anti-repair corporate interests, from Big Ag to Big Tech. But the tide is turning: New York State just passed an Right to Repair bill for electronics. 

Colorado’s wheelchair-specific Right to Repair bill has broken through. By forcing companies to bypass their own DRM on behalf of wheelchair users and independent repairers, the law sidesteps the DMCA’s prohibition on removing DRM. 

Making it easier for people who use powered wheelchairs to get them fixed won’t solve all the other problems with powered wheelchairs: it won’t solve the problem of being forced to use indoor chairs outdoors; it won’t solve the problem of a market concentrated into the hands of two companies that refuse to invest in repair, it won’t solve Medicare’s refusal to replace chairs when they wear out.

But safeguarding repair will help people who rely on wheelchairs. Making it possible for wheelchair users and the technicians they trust to fix their chairs means that while the fight to fix everything else goes on, wheelchair users will still have functional chairs—and they’ll be freed from the cruel, bureaucratic nightmare of wheelchair repair monopolies, giving them time to fight for the deep structural changes the sector so desperately, obviously needs.

Update, 4 August 2022: Wheelchair manufacturer National Seating and Mobility wrote a letter to Kaiser Health News in response to the article we cited above.