Here's a miserable story with a mostly happy ending, one that leaves us with work to do, sure, but also with clarity on what to do next and how to do it. It's about Colorado's HB22-1031, "Consumer Right To Repair Powered Wheelchairs," which Governor Jared Polis signed into law last week:
But when it comes to powered wheelchairs, there are a lot of complicated - and frankly awful - structural factors that virtually guarantee that the chairs will get broken, and then getting them fixed is an incredible hassle. These structural factors are detailed in "Stranded," the US Public Interest Research Group's new report:
Stranded's foundation is 141 interviews US wheelchair users about their experiences with wheelchairs, which informs its commercial and legal analysis of the structural problems that underpin those experiences.
The report explains how Medicare narrowly interprets its statutory duties, allowing it to exclude outdoor powered wheelchairs from its program. That means that the majority of Americans who rely on powered wheelchairs have to use indoor wheelchairs, even when outdoors.
No wonder that these chairs break. A lot. As Mark Schmeler from U Pitt told Markian Hawryluk from *Kaiser Health News*, "It’s like you’re outside walking around all day with your slippers on."
But it's not just a problem of fragile indoor chairs in a rugged outdoor world.
The chairs aren't just indoor chairs, they're *bad* indoor chairs. That's down to Medicare's policy of using nationwide low bidders to supply chairs, which produced a winner-take-all duopoly where two private equity-backed manufacturers dominate.
These two companies - Numotion and National Seating and Mobility - have presided over a decline in the quality and durability of chairs, which means that the chairs they make break more often.
Because these are PE-backed rollups - companies that used private equity capital and debt leverage to buy all their competitors - they need very high margins to meet investor expectations and cover their debts. That has resulted in deep cuts to the companies' service budgets.
Medicare also has a policy of not funding preventative maintenance and only replacing chairs every five years, which means that these fragile, undermaintained, badly made indoor chairs must last for half a decade.
That's why 93% of respondents to the PIRG survey reported broken chairs in the previous year.
But also, the duopoly - whose anticompetitive mergers were waved through by the FTC - refuses to invest in repair, which is why 62% of repairs take 4+ weeks, while *40% take 7+ weeks*. That's 7 weeks of being stuck in your home - or even in your bed - while you wait for a technician to get your chair running again.
Many of the people interviewed for Stranded can't wait, and continue to use broken chairs. Some of them were severely injured as a result.
Unsurprisingly, wheelchair users and their trusted technicians often end up fixing their own chairs. Fixing a flat tire - or even swapping the little skateboard wheel used to stabilize a chair with a heavy control unit and respirator - are not rocket science.
Stranded quotes a wheelchair technician who works for the duopoly: "most repairs to wheelchairs are straightforward and don’t require specialized skills or training, just a familiarity with mechanical devices."
But there are deep structural impediments to independent powered wheelchair repair, impediments that are familiar from other Right To Repair fights: parts, and DRM.
As with mobile phones, tractors, cars, and appliances, parts for powered wheelchairs can be hard to source because the cartel that manufactures them refuses to make them available except to authorized technicians. As is the case with other repair monopolies - like Apple's authorized independent repair program - technicians are not allowed to keep parts in inventory, which means that nearly every repair includes a lengthy delay while parts are ordered and shipped.
Beyond parts, there are the problems of #DRM in the chairs' electronics. As with GM cars, John Deere tractors, and Apple iPhones, access to these electronics is digitally restricted to authorized technicians with passwords and specialized hardware tokens. Under Section 1201 of the Digital Millennium Copyright Act (#DMCA), making tools to bypass these access controls is a felony carrying a maximum penalty of 5 years in prison and a $500,000 fine:
That means that wheelchair users and independent technicians can't access the diagnostic information from their own chairs, and when they swap in new components, they can't access the configuration tools to get them working, including changing a chair's grip parameters after changing to all-weather tires.
Powered wheelchair users need routine access to these electronics, just to tweak the settings of their chairs. For example, a wheelchair user who gains ability and confidence might want to change the delay settings for their control unit. One of the interview subjects in Stranded compares bad delay settings to "driving with bungee cords."
Now, finally, we come to Colorado's #HB221031, the new right to repair wheelchair laws. Like the model R2R laws that a coalition of monopolistic manufacturers have defeated time and again, in states across America, the law requires manufacturers to supply parts, manuals, and unlock codes to chair owners and independent technicians.
Many of the commentators quoted in the *KHN* story and in Stranded make the point that making it easier to fix wheelchairs won't solve all the other problems - a monopolized chair manufacturing market, Medicare policies on preventative maintenance, outdoor chairs, and replacements, etc. They're right.
Right to repair laws have been defeated again and again in statehouses across America, thanks to the solidarity of monopolists, who have formed seemingly unbeatable coalitions devoted to ripping off their customers and destroying the planet with infinite mountains of e-waste.
But, as this bill shows, the anti-repair axis *can* be defeated. In Massachusetts, Bay Staters overwhelmingly voted in an automotive right to repair laws in a 2020 ballot measure. In New York, the governor just signed an unprecedented right to repair electronics law. And in Colorado, we have the first successful right to repair wheelchairs law.
These successes tell us what we need to do next: replicate New York's electronics repair law, Massachusetts' automotive repair law, and Colorado's wheelchair repair law in other states. Go from strength to strength, victory to victory, shattering the anti-repair axis by picking off its members, one at a time.
All of this will create the political will and the political space for realizing the promise of the FTC's landmark "Nixing the Fix" report:
And Biden's *excellent* executive order on Right to Repair:
The anti-repair axis's lies - that only they can perform safe and effective repairs - grow thinner every day. The true motivation - extracting monopoly rents - grows more undeniable. As ever, rights for people with disability redound to all of us.
It's not that we're all merely "temporarily able-bodied" (as Liz Henry once memorably put it to me), either.
Just as curb-cuts help people with strollers and bikes and grocery buggies, just as subtitles help language learners and people in noisy environments, protecting people with disabilities protects us all. That's why the activism of people with disabilities is activism that benefits us all.
Hugh D'Andrade for EFF
CC BY US 3.0:
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