23VAC10-210-940. Medicines, drugs, eyeglasses and related items.

A. Generally. The tax does not apply to medicines, drugs, hypodermic syringes, artificial eyes, contact lenses, eyeglasses and hearing aids dispensed by or sold on prescriptions or work orders of licensed physicians, dentists, optometrists, audiologists, hearing aid dealers and fitters or ophthalmologists, and controlled drugs purchased by a licensed physician for use in his professional practice.

The tax does not apply to wheelchairs and repair parts, braces, crutches, prosthetic devices, orthopedic appliances, catheters, urinary accessories, insulin and insulin syringes, and equipment, devices or chemical reagents which may be used by a diabetic to test or monitor blood or urine and other durable medical equipment and devices, related parts and supplies specifically designed for such equipment when such items or parts are purchased by or on behalf of an individual using these items. Purchases of these items by a hospital or licensed nursing home conducted for profit or by a licensed physician for use in his professional practice are subject to tax.

B. A. Definitions. As used in this regulation, the The following words and phrases terms, when used in this section set forth below shall be given have the following meanings unless the context clearly indicates otherwise:

1. Prosthetic devices. "Prosthetic devices" shall mean devices which replace a missing part or function of the body and shall include any supplies physically connected to such devices.

2. Controlled drugs. "Controlled drugs" shall mean means those medicines or drugs for which the manufacture, distribution, and dispensation are strictly regulated by both state and federal laws due to the potential for abuse and physical and psychological dependence.  Controlled drugs are separated into six Schedules, and itemized under § 54.1-3400 § 54.1-3446 et seq. of the Code of Virginia but shall include only medicines and drugs and not devices.  For purposes of this definition, "controlled drugs" does not include devices.

"Cosmetics" means articles applied to the body for cleansing, beautifying, promoting attractiveness or altering the appearance, including, but not limited to makeup, body lotions, cold creams, and hair restoration products.

"Devices" means instruments, apparatuses, and contrivances, including their components, parts and accessories, intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in human beings or to affect the structure or any function of the human body. A partial list of devices that the Federal Food and Drug Administration recognizes is provided at 21 CFR § 862 et seq.

"Drug" means (i) articles or substances recognized in the official United States Pharmacopoeia National Formulary or official Homeopathic Pharmacopoeia of the United States, or any supplement to any of them; (ii) articles or substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals; (iii) articles or substances, other than food, intended to affect the structure or any function of the body of man or animals; (iv) articles or substances intended for use as a component of any article specified in clause (i), (ii) or (iii); or (v) a biological product.  For purposes of this definition, "drug" includes oxygen and other medical gases, but does not include devices or their components, parts or accessories.

"Durable medical equipment" means medical equipment that meets all of the following requirements: i) can withstand repeated use; ii) is primarily and customarily used to serve a medical purpose; iii) generally is not useful to a person in the absence of illness or injury; and iv) is appropriate for use in the home.

"Glycolic acid products" means cosmetic items used to smooth or lighten skin or to remove age spots and wrinkles for the purpose of promoting attractiveness or altering the appearance.

"Hemodialysis" means a renal replacement therapy method of removing waste products as well as free water from the blood when the kidneys are incapable of removing these wastes.

"Homeopathic product" means a product derived from the system of medical practice that treats a disease by the administration of minute doses of a remedy that would, in larger amounts, produce in healthy persons, symptoms similar to those of the disease.

3. Licensed physician. "Licensed physician" shall include means only those a persons person licensed as a medical doctors doctor. For purposes of this definition, a "licensed physician" and shall does not include a veterinarians veterinarian, chiropractors chiropractor, opticians optician, optometrists optometrist and or similar persons person.

"Nonprescription drug" means a substance or mixture of substances containing medicines or drugs for which no prescription is required, and that is generally sold for internal or topical use in the cure, mitigation, treatment, or prevention of disease in human beings.

"Peritoneal dialysis" means a renal replacement therapy method of removing waste from the blood, as well as excess fluid, when the kidneys are incapable of removing these wastes, by instilling a specially formulated dialysis fluid around the peritoneal membrane that surrounds the intestine.

"Prescription" means an order for drugs or medical supplies, written or signed or transmitted by word of mouth, telephone, telegraph, Internet or other means of communication to a pharmacist by a duly licensed physician, dentist, veterinarian, or other practitioner, authorized by law to prescribe and administer drugs or medical supplies.

"Proprietary medicine" means any nonprescription drug that is sold to the general public under the brand name or trade name of the manufacturer, and that does not contain any controlled substance or marijuana.

"Prosthetic device" means any device that replaces a missing part or function of the body.  For purposes of this regulation, a prosthetic device includes any supplies physically connected to the device.

"Toilet articles" means articles advertised or held out for sale for grooming purposes, including but not limited to toothpastes, hairsprays, shaving products, colognes, and deodorants.

B. Generally. Purchases of the following items are exempt from the retail sales and use tax:

1. Controlled drugs that a licensed physician, optometrist, licensed nurse practitioner, or licensed physician assistant purchases for use in his professional practice;

2. Medicines, drugs, hypodermic syringes, artificial eyes, contact lenses, eyeglasses, and hearing aids that a licensed physician, dentist, optometrist, ophthalmologist, optician, audiologist, hearing aid dealer or fitter, nurse practitioner, physician assistant, or veterinarian dispenses or sells on prescriptions or work orders;

3. Medicines and drugs that a licensed hospital, nursing home, clinic, or similar corporation purchases for its use and consumption;

4. Medicines and drugs that a retailer purchases in order to fill a prescription, provided the purchase is made under a certificate of exemption, Form ST-10;

5. Nonprescription medicines or drugs and proprietary medicines or drugs, regardless of the nature of the purchaser;

6. Samples of nonprescription drugs and proprietary medicines that a manufacturer distributes free of charge

7. Eyeglass cases, contact lens storage containers, all solutions or sterilization kits or other devices applicable to the wearing or maintenance of contact lenses or eyeglasses, provided these items are purchased by optometrists, ophthalmologists, and opticians and distributed free of charge to their patients;

8. Eyeglasses that a consumer purchases on prescription of a physician, ophthalmologist or optometrist;

9. Eyeglass frames sold in connection with the repair or replacement of prescription eyeglasses;

10. Durable medical equipment, devices, and related parts and supplies, provided the equipment, parts, and supplies are purchased by or on behalf of an individual for use by that individual.  Purchases of durable medical equipment, parts, and supplies made by a hospital or licensed nursing home conducted for profit or by a licensed physician for use in his professional practice remain subject to tax;

11. Hemodialysis and peritoneal dialysis equipment, supplies, and drugs used in dialysis, regardless of the nature of the purchaser;

12. Samples of prescription drugs that a pharmaceutical manufacturer distributes to licensed physicians, hospitals, pharmacies and other health care facilities pursuant to a written request;

13. Medicines and drugs that a veterinarian purchases for use in caring for, medicating or treating agricultural production animals; and

14. Medical products and supplies that a Medicaid recipient purchases through a Department of Medical Assistance Services Provider agreement.

C. Medicines and drugs, specifically.

1. Medicines and drugs sold on prescriptions. Consumers may purchase Sales of medicines or drugs, including oxygen, on written prescriptions of issued by licensed physicians, or dentists, optometrists, ophthalmologists, opticians, audiologists,  hearing aid dealers and fitters, nurse practitioners, physician assistants, and veterinarians are exempt from the sales and use tax. Sales of medicines Medicines and drugs purchased pursuant on to a physician's or dentist's telephone (oral) an oral prescription made by any of these licensed professionals are exempt from the tax, provided the prescription is reduced to writing, signed by the pharmacist, and filed in the same manner as an original written prescription. Medicines or drugs sold pursuant to the refilling of a physician's or dentist's prescription by any of these licensed professionals are also exempt from the tax. Vendors Sellers making sales of medicines or drugs pursuant to physician's or dentist's these prescriptions or in refilling refills the same must keep sales records segregating the prescription sales. All original prescriptions must be filed and kept available for inspection by the Department of Taxation Taxation's inspection. When a sale is made to refill refills a prescription, the seller's records of the refill must carry the number of the original prescription for reference.

2. Sales of controlled Controlled drugs sold to certain health care providers.   a licensed physician.A licensed physician, optometrist, licensed nurse practitioner, or licensed physician assistant may purchase controlled drugs for use in his professional practice are exempt from the retail sales and use tax.  The Department will look to the purchasers on the invoice that supports the transaction to determine whether the controlled drug exemption applies.  When an invoice includes any of the licensed practitioners as the purchaser, this is sufficient to demonstrate that the purchase was made by the qualifying party for use in his professional practice.  The use of a Drug Enforcement Agency number is also sufficient.

3. Sales of medicines or drugs to users or consumers, except when the sales are made pursuant to a prescription of a physician or dentist or as a refill of a written prescription, as referred to in paragraph (A) are subject to the tax. Sales of medicines Medicines and drugs sold to licensed hospitals and nursing homes similar facilities.  Licensed hospitals, nursing homes, clinics, and similar facilities may purchase medicines and drugs for their use and consumption conducted for profit are subject to exempt from the retail sales and use the tax unless the sales are made as a result of a written prescription of a licensed physician for a particular patient under the care of the hospital or nursing home. Sales to hospitals or licensed nursing homes conducted not for profit, however, are not subject to the tax. For more information about concerning hospitals and nursing homes, see 23VAC10-210-720.

4. Purchases of drugs by the dealer for filling prescriptions are not subject to the tax and must be made under certificate of exemption.  Medicines and drugs purchased for resale.  A retailer may purchase drugs that will be used to fill or refill prescriptions exempt of the retail sales and use tax, provided the retailer presents the supplier with a certificate of exemption, Form ST-10 at the time of purchase.

D. Nonprescription drugs and proprietary drugs

1. Nonprescription medicines or drugs and proprietary medicines and drugs purchased for the cure, mitigation, treatment or prevention of disease in human beings may be purchased exempt of the retail sales and use tax, regardless of the nature of the purchaser.  No certificate of exemption is necessary to utilize the exemption.

2. In order to be deemed an exempt nonprescription drug, the item at issue must: i) contain a nonprescription drug or proprietary medicine; 2) be sold for internal or topical use; 3) be sold for the cure, mitigation, treatment or prevention of disease in human beings; and 4) fall outside of the excluded categories set forth in subsection (D), subdivision (3) of this section.  Products that require over-the-counter registration are deemed exempt nonprescription drugs or medicines if they meet these requirements.

3. The exemption for nonprescription drugs and proprietary medicines does not apply to the following categories of items:

a. Cosmetics;

b. Toilet articles;

c. Food products and supplements, classified as such by the Federal Food and Drug Administration;

d. Vitamins and mineral concentrates sold as dietary supplements or adjuncts, except when sold pursuant to a written prescription by a licensed physician, nurse practitioner, or physician's assistant;

e. Devices, including contraceptive items, birth control preparations, and testing kits. However, a separate exemption is available for diabetic testing kits under subsection F of this regulation;

f. Products listing natural or herbal ingredients as the active components, unless the items contain a nonprescription drug or proprietary medicine and treat, cure, or prevent disease in human beings.

g. Items containing nonprescription drugs or other medicinal ingredients that serve a secondary function to the intended use of the product, such as toothpaste with nonprescription drugs added to prevent gingivitis.

3. Following is a list of nonprescription drugs and proprietary medicines that qualify for exemption based on their status as nonprescription drugs or proprietary medicines. This list is intended as a guide and is not intended to be all inclusive.

Acne products

Alcohol, rubbing

Alcohol swabs

Allergy relief products

Analgesics

Anesthetics

Antacids

Antibiotic ointments

Antifungals

Antihistamines

Antimalarials

Antinauseants

Antiseptics

Aspirin

Asthma preparations

Baby powder, medicated

Bandages, gauze, or swabs, provided these items contain antiseptic or bacterial control products in the pad

Bee sting relievers

Benzoin

Boric acid ointment

Burn remedies

Calamine lotion

Camphor

Castor oil

Cathartics

Cold or canker sore preparations

Cold capsules and remedies

Contact lens lubricating and wetting solutions for insertion directly into the eye

Contraceptive creams containing nonprescription drugs and intended to treat a disease

Cough and cold items, cough drops, cough syrups

Dandruff and seborrhea preparations

Decongestants

Diarrhea remedies

Digestive aids

Disinfectant for use on or about the human body

Diuretics

Earache and earwax removal preparations

Eczema preparations

Epsom salts

Expectorants

Eye drops, lotions, ointments and washes for healing, treatment or therapeutic use

Fever blister aids

First aid healing agents, cleaners

Fluoride rinses and antiseptic dental washes

Foot care products for treatments of infections, medicated callous or corn removers, ingrown toenail preparations, , and athlete's foot treatments

Fungicides for human use

Glucose tablets

Glycerine products intended for medical use

Hay fever aid products

Headache relief aid products

Hemorrhoidal treatments

Hydrogen peroxide

Ibuprofen

Insect bite and sting preparations

Iodine

Itch and rash relievers

Laxatives

Lice products used to kill lice that infect humans

Liniments

Lip balms, ice and salves, medicated

Lotions, medicated

Menstrual cramp relievers

Mercurochrome

Milk of Magnesia

Mineral oil

Motion sickness remedies

Mouthwashes containing antiseptic

Muscle ache relievers

Nasal drops and sprays

Nicotine supplements that treat nicotine withdrawal symptoms

Oil of wintergreen

Pain relievers, oral or topical

Parasiticides for humans

Peroxide, medicinal

Poison ivy and oak preparations

Powder, medicated

Rectal preparations

Shampoos, medicated

Sinus relievers

Sitz bath solutions

Skin irritation relievers

Sleep aids and sleep inducers

Soap, including germicidal, surgical, therapeutic, or other soaps used for medical treatment

Styptic pencils

Sunburn lotions

Sunscreen containing SPF protection

Suppositories, excluding contraceptives

Teething preparations

Throat lozenges, medicated

Tooth desensitizers

Toothache relievers

Upset stomach relievers

Vaginal infection remedies

Wart removers

Witch hazel

Worming treatments for human use humans

Zinc oxide ointments

4. Following is a list of items that do not qualify as nonprescription drugs or proprietary medicines.  These items may qualify for another retail sales and use tax exemption.  This list is intended as a guide and is not intended to be all inclusive.

Adhesive bandages, dressings, and cotton

Adhesive removers

Adhesive tape

Ammonia

Appetite suppressants

Bath crystals, milks, oils and powder

Birth control preparations

Breath fresheners and sweeteners

Bubble bath

Bunions or corn pads, unless medicated

Cleaning creams and lotions

Cod liver oil

Contact lens cleaning solutions and disinfectants, unless designed to be applied directly in the eye

Cosmetics, whether or not containing medicinal properties or acne treatments

Cotton applicators, rolls, balls and swabs

Cuticle softener

Denture adhesives, cleaners, and preparations

Deodorants and antiperspirants

Depilatories

Dental floss and threaders

Diet aids

Dietary foods, supplements, and substitutes

Distilled water

Exfoliants

Glycolic acid products

Hair restoration products

Hand sanitizers, sprays, foams, gels, soaps or wipes, including anti-bacterial items  

Herbal teas, drinks, pills, or powder supplements

Household disinfectants and insecticides

Infant formula

Insect repellant

Mouthwashes, excluding antiseptic mouthwashes

Nutraceutical products

Oral electrolyte mixtures for rehydration

Pet medical supplies

Pet medicines

Petroleum jelly

Powders, nonmedicated

Prophylactics

Pumice powder

Saline solution

Sanitary napkins, tampons, and similar items

Shampoos, nonmedicated

Shaving products

Skin bleaches

Soaps for general use

Stimulants

Suntan lotion without SPF protection

Talcum powder

Testing kits

Thermometers

Toothpastes, polishes, powders, and whiteners, including products containing fluoride or peroxide

Vitamins and mineral supplements

Wax

Weight control preparations

Wrinkle removing and concealing preparations

5. If a homeopathic product is classified as a drug by the Food and Drug Administration, is used internally or topically, and is used for the cure, treatment, mitigation or prevention of disease in human beings, the product is exempt from the retail sales and use tax.

6. Nonprescription items packaged with items that would not qualify for exemption as nonprescription drugs, such as items found in a first-aid kit, are subject to the retail sales and use tax.  The tax is computed on the total sales price.

7. Items identified as "sensitive care products," range from lotions and soap-free cleaners to medicated products that treat a number of medical conditions. The taxability of these items must be determined on a case-by-case basis, based on the ingredients the item contains, and the intended purpose of the product.

8. Retailers making sales of nonprescription drugs must include exempt nonprescription drugs with all other exempt sales on the retailer's regular sales tax return, Form ST-9.  Retail dealers making sales of such items must keep records segregating purchases and sales of exempt items.

 D. E.  Eyeglasses and other ophthalmic aids and supplies.

1.  Optometrists, ophthalmologists, and opticians are engaged in the provision of professional services, and must pay the tax to their suppliers at the time they purchase instruments, supplies, equipment and other tangible personal property used in performing their professional services, or remit the use tax directly to the Department of Taxation on these items.  However, when optometrists, ophthalmologists, and opticians provide eyeglass cases, contact lens storage containers, solutions, sterilization kits, or other similar devices related to wearing or maintaining contact lenses or eyeglasses to their patients free of charge, the practitioners may purchase these specified items exempt of the tax.

1. 2.  Sales of eyeglasses Eyeglasses ground on prescription of physicians, ophthalmologists or optometrists, as well as including frames as an that are an integral part of the glasses are not subject to the tax exempt from the retail sales and use tax.  Eyeglass frames sold in connection with the repair or replacement of prescription eyeglasses are also exempt from the tax, provided the prescription for the glasses is on file with the person replacing or repairing the eyeglass frames.

2. Eyeglass frames sold in connection with the repair or replacement of eyeglasses ground on prescription of physicians, ophthalmologists or optometrists are not subject to the tax.  

 3. Sales of Dealers, including ophthalmologists and optometrists, are not subject to the retail sales and use tax on purchases of eyeglass frames, optical merchandise and optical supplies that are purchased for resale, and may present the by optical supply supplier houses to dealers, including ophthalmologists and optometrists, for resale are not subject to the tax until sold at retail by such purchasers  at which time the rules set forth in this section apply with an exemption certificate, Form ST-10, at the time of purchase.

4. Sales of ophthalmic instruments and supplies to physicians, ophthalmologists, optometrists and other users are subject to the tax.

5. 4.  All sales to users or consumers of eyeglass Eyeglass frames, nonprescription sunglasses not ground on prescription, cases, solutions for cleaning eyeglasses, barometers, telescopes, binoculars, opera glasses and similar items are subject to the tax when sold to users or consumers.  All persons, including opticians, optometrists and ophthalmologists making such sales of these items, including opticians, optometrists, and ophthalmologists, are required to register as dealers and collect and pay the tax due. However, sales of eyeglass frames or repair parts for prescription eyeglasses are exempt from the tax if the prescription for the glasses is on file with the person replacing or repairing the eyeglass frames.

6. 5.  The exemptions outlined in this regulation subsection have no application whatever to the retail sales of eyeglasses or other optical goods not prescribed by licensed optometrists or ophthalmologists. All such these sales are subject to the tax.

E. Wheelchairs, braces, prosthetic devices, orthopedic appliances, etc. F. Durable medical equipment, devices, and certain products for diabetics.

1. Generally. The tax does not apply to wheelchairs and their repair parts, braces, crutches, prosthetic devices, orthopedic appliances, catheters, urinary accessories, other durable medical equipment and devices, insulin and insulin syringes, and equipment devices and chemical reagents which that may be used by a diabetic to test or monitor blood or urine, when such these items are purchased by or on behalf of an individual using these items for the individual's exclusive use.   For example, if individual A purchases a wheelchair for use by individual B, no tax will apply to the transaction since the wheelchair is purchased on behalf of individual B. However, purchases of these items by a for-profit hospital, licensed nursing home, home for adults or by a licensed physician for use in his professional practice are deemed to be purchases on behalf of an individual only if purchased for a specific individual. Items withdrawn from an inventory of items purchased in bulk are not deemed to be purchased on behalf of an individual. (See subsection (G) below.)  The fact that an item is purchased from a medical equipment supplier or on a physician's prescription is not dispositive of its exempt status.

In addition, parts or supplies that are specifically designed for use with the items outlined in this subdivision are exempt from retail sales and use tax.  For example, because hearing aids qualify as durable medical equipment, hearing aid batteries also are exempt durable medical equipment because these items are a part or supply specifically designed for use with hearing aids.  General purpose medical supplies such as tape, gauze, dressings, alcohol swabs, and sharps containers for disposal of used needles and waste bags are not designed for use with durable medical equipment; therefore, they do not qualify for the exemption.

2.  Prosthetic devices.  Generally, implants satisfy the definition of prosthetic devices and may be purchased exempt of the tax when purchased by or on behalf of specific individuals.  However, implants used for cosmetic purposes are not used to replace missing body parts or functions, and as such, do not qualify for exemption from the tax, regardless of whether they are purchased by or on behalf of an individual.  For dentures and other prosthetic devices relating to the practice of dentistry, see 23VAC10-210-500.

3.  Following is a list of the types of items that are deemed durable medical equipment or other qualifying equipment or devices under this subsection. This is a listing of general categories of products; specific items must meet all of the requirements for durable medical equipment or other qualifying items, as outlined in subdivision 1. The listing is intended to be exemplary and not all inclusive.

Aerosol compressors, stationary and portable

Air oxygen mixers

Alternating pressure pads

Alternating pressure pumps, if used with alternate pressure pads

Apnea monitors and accessories

Aspirators

Bed rails

Bedside commodes

Bone fracture therapy devices

Catheter devices and supplies

Colostomy supplies and devices

Communication aids for physically impaired

Continuous Passive Motion Devices

Continuous Positive Airway Pressure (CPAP) and CPAP accessories

Crawlers

Crutches, crutch pads, and tips

Cylinder stands and support devices

Cylinder transport devices, sheaths and carts

Decubitis seating pads and bed pads

Dressing aids, button loops, zipper aids, etc.

Eating and drinking aids

Emergency oxygen delivery units

Enteral and parenteral feeding equipment and supplies, including tubes, pumps, and containers

Face masks

Fitted stroller

Foam seating pads

Foam wedges

Gas oxygen refills and tanks

Geriatric chairs

Glucose monitors and supplies, except batteries

Grooming aids and dental aids

Hand exercise equipment putty

Heating pads

Hospital beds

Hospital bed mattresses and eggcrates

Household aids for the impaired

Hydro-collators

Hydro-therm heating pads

Ice bags

Intermittent Positive Pressure Breathing (IPPB) circuits, devices and supplies

Intravenous (I.V.) stands

I.V. supplies such as catheters and tubing

Leg weights, related to rehabilitation

Lift recliners

Liquid and gas oxygen systems, stationary and portable

Manual resuscitators

Muscle stimulators

Nasal cannulas

Nebulizers and tubing

Overbed tables

Oximeters

Oxygen concentrators

Oxygen conserving devices

Oxygen cylinders

Oxygen equipment

Oxygen fittings and accessories

Oxygen humidifiers

Oxygen tubing

Oxygen

Paraffin baths

Patient care equipment for physical and occupational therapy

Patient lifts

Patient lift slings

Patient transport devices and boards

Percussors and vibrators

Physical therapy items such as wrist and ankle weights, shoulder braces, supports and braces when rehabilitative related

Phototherapy lights, provided they are used to serve a medical purpose and not for sun tanning purposes

Pneumatic compression units and accessories

Posture back supports, including back supports for seating

Raised toilet seats

Reaching aids

Regulators and flowmeters

Respiratory accessories, such as PFLEX or Peak Flow items

Respiratory therapy equipment

Restraints

Room humidifiers with script

Shampoo trays

Shower seating and bath benches

Shower grip bars

Sitting and sleeping cushions

Specialized seating, desks, and work stations

Specially designed hand utensils

Splints and holders

Stairglides and lifts in home

Standing frames, devices, and accessories

Stethoscope

Tank wrench

Transcutaneous Electrical Nerve Stimulator ("TENS") unit and muscle stimulators

TENS accessories (electrodes, wiring specifically for use with TENS units)

Toilet safety frames

Tracheotomy and suction supplies

Traction stands, pulleys, etc.

Trapeze bars and bar stands

Ultrasonic nebulizers

Vaporizer

Volume ventilators, respirators and related device supplies

Walker accessories

Walkers

Walking canes, quad canes, accessories

Wheelchairs

Wheel walkers

Writing and speech aids for the impaired

4. Following are examples that demonstrate whether the definition for durable medical equipment is met:

Example 1: A physician purchases a disposable capsule for a specific patient that must be ingested to capture internal images of the body.  Because the capsule is disposable, it is not able to withstand repeated use.  Therefore, the capsule does not qualify as durable medical equipment.

Example 2: A physician offering gynecological services purchases intrauterine copper contraceptive devices for a specific patient.  Because the contraceptive devices are not useful in the absence of illness or injury, they are not durable medical equipment.  Although there are instances of pregnancy that may threaten the health of a patient, and in which the patient may not be able to use other forms of contraceptive, the devices are designed for contraceptive use. Therefore, they are not exempt durable medical equipment.

5. The exemption in this subsection is available only for items purchased by or on behalf of an individual for his use. In order to be deemed a purchase on behalf of an individual, the item must be specifically purchased for the individual. If items are purchased in bulk and then dispensed to individual patients, the exemption does not apply, even if the items are modified or fitted for a specific individual.

Example 1: A physician maintains an inventory of crutches or ace bandages that are dispensed to individual patients as needed.  The physician must pay sales or use tax on these items because the original purchase was not made on behalf of a specific patient.

Example 2: A physician determines that a patient needs a brace and purchases a brace specifically designed for that patient. The purchase is made on behalf of the individual and is exempt from the tax.

The Department of Taxation has not prescribed a certificate of exemption to use when durable medical equipment and other exempt items under subdivision 1 are purchased on behalf of a specific person.  When the purchaser has no blanket exemption for its purchases, and no certificate of exemption or other exemption notice from the Department of Taxation applies, the dealer must get a signed statement from the medical service provider making the purchase, such as the hospital, nursing home, licensed physician, or infusion service business, certifying that the durable medical equipment is purchased on behalf of a specific patient through a doctor's prescription or hospital's work order and is for sole use by that patient.  The purchaser is also responsible for retaining a copy of the doctor's prescription or hospital work order as part of the record of the transaction for tax auditing purposes.  The fact that a purchaser can trace durable medical equipment back to a specific patient after-the-fact is not sufficient to establish that the durable medical equipment was purchased for a specific individual; therefore, the purchaser's documentation must have included patient identification information at the time of purchase in order for the purchase to be deemed made on behalf of an individual.  For purposes of proving that the sale was for a specific individual in the event of a sales and use tax audit, the purchaser may redact any identifying information in order to comply with federal and state privacy laws.

2. Hemodialysis and peritoneal dialysis.

Hemodialysis and peritoneal dialysis equipment, supplies and drugs used in dialysis are not subject to the tax. This exemption is applicable regardless of the nature of the purchaser. Therefore such  dialysis equipment, supplies and drugs may be purchased exempt by physicians, individuals, profit and nonprofit hospitals, and other entities.

F. Durable medical equipment. The tax does not apply to durable medical equipment purchased by or on behalf of an individual. Durable medical equipment is that which (1) can withstand repeated use; (2) is primarily and customarily used to serve a medical purpose; (3)  generally is not useful to a person in the absence of illness or injury; and (4)  is appropriate for use in the home. In order for an item to be exempt from the tax, it must meet all of the above criteria. The fact that an item is purchased from a medical equipment supplier is not dispositive of its exempt status; the item must satisfy the definition of durable medical equipment.

Following is a list of those types of items which constitute durable medical equipment. This is a listing of general categories of products; specific items must still meet the definition set forth above. The listing is intended to be exemplary and not all inclusive.

Oxygen equipment

Oxygen cylinders

Cylinder transport devices (sheaths, carts)

Cylinder stands, support devices

Regulators, flowmeters

Tank wrench

Oxygen concentrators

Liquid oxygen base dispenser

Liquid oxygen portable dispenser

Oxygen tubing

Nasal cannulas

Face masks

Oxygen humidifiers

Oxygen fittings, accessories

Respiratory therapy equipment

Room humidifiers (with script)

Aspirators

Aerosol compressors (stationary and portable)

Ultrasonic nebulizers

Volume ventilators, respirators and related device supplies

Percussors, vibrators

IPPB, circuits, devices and supplies

Air oxygen mixers

Manual resuscitators

Nebulizers, tubing

Emergency oxygen delivery units

Patient care equipment, physical and occupational therapy

Hospital beds

Trapeze bars--bar stand

Bed rails

Geriatric chairs

Lift recliners

Bedside commodes

Overbed tables

Patient lifts

Patient lifts slings

Traction stands, pulleys, etc.

Shower seating

Shower grip bars

Raised toilet seats

Toilet safety frames

Walking canes, quad canes, accessories

Walkers

Wheel walkers

Walker accessories

I.V. stands

Crawlers

Posture back supports for seating

Posture back supports

Wheelchairs

Crutches, crutch pads, tips

Restraints

Standing frames, devices and accessories

Colostomy supplies and devices

Enteral and parenteral feeding equipment and supplies (tubes, pumps, containers)

Catheter devices and supplies

Hand exercise equipment putty

Specially designed hand utensils

Leg weights (rehab. related)

Paraffin baths

Hydro-collators

Hydro-therm heating pads

Communication aids for physically impaired

Specialized seating, desks, work stations

Foam wedges

Writing and speech aids for the impaired

Dressing aids, button loops, zipper aids, etc.

Grooming aids, dental aids

Eating and drinking aids

Splints, holders

Household aids for the impaired

Shampoo trays

Reaching aids

Foam seating pads

Decubitis seating pads, bed pads

Fitted stroller

Alternating pressure pads

Stethoscope

Sitting and sleeping cushions

Patient transport devices, boards

Stairglides, lifts in home

Transcutaneous nerve stimulators

Muscle stimulators

Bone fracture therapy devices

G. Purchases on behalf of an individual. The exemption for wheelchairs and repair parts, braces, crutches, prosthetic devices, orthopedic appliances, catheters, urinary accessories, insulin and insulin syringes, equipment, devices or chemical reagents used by a diabetic to test or monitor blood or urine, and durable medical equipment and devices and related parts and supplies specifically designed for such equipment extends to items purchased "on behalf of" an individual for his use. In order to be deemed a purchase on behalf of an individual, the item must be specifically bought for the individual. If items are purchased in bulk and then dispensed to individual patients, no exemption is applicable even if the item is modified or fitted for a specific individual.

For example if a physician maintains an inventory of crutches or ace bandages which are dispensed to individual patients as needed, the purchase of these items is not exempt since the original purchase was not made on behalf of a specific patient.  Conversely, if a physician determines that a patient needs a brace and purchases a brace specifically designed for that patient, the purchase is made on behalf of the individual and will not be subject to the tax.

For dentures and other prosthetic devices relating to the practice of dentistry, see 23VAC10-210-500.

G. Hemodialysis and peritoneal dialysis equipment, supplies, and drugs. Hemodialysis and peritoneal dialysis equipment, supplies, and drugs used in dialysis are not subject to the tax. This exemption is applicable regardless of the nature of the purchaser. Therefore, hemodialysis and peritoneal dialysis equipment, supplies and drugs may be purchased exempt by physicians, individuals, for-profit and nonprofit hospitals, and other entities.

H. Samples distributed to authorized recipients. Pharmaceutical manufacturers are not subject to sales use tax for samples of prescription drugs and medicines or the packaging, when distributed free of charge to licensed physicians, hospitals, pharmacies and other health care facilities, upon the written request of these medical providers, in accordance with the Federal Food, Drug, and Cosmetic Act (21 USC § 301 et seq.).

I. Purchases of medicines and drugs by veterinarians. Veterinarians that dispense medicines or drugs on prescription are deemed the users or consumers of all such medicines and drugs, and must pay the retail sales and use tax on these purchases; however, veterinarians may purchase exempt of the sales and use tax all medicines and drugs that will be used in caring for, medicating or treating agricultural production animals. For additional information on the taxability of drugs dispensed by veterinarians, see 23VAC10-210-6050.

J. Purchases of medical products and supplies by certain Medicaid recipients. Medicaid recipients are authorized to purchase medical products and supplies that are otherwise taxable, such as bandages, gauze dressings, incontinence products and wound-care products exempt of the retail sales and use tax, provided the purchase is made through a Department of Medical Assistance Services Provider, or DMAS, agreement. This exemption applies to any type of medical product or supply, incontinence or wound care product, provided the Department of Medical Assistance Services pays for the product or supply. Sellers must maintain sufficient documentation to verify that the purchase transaction meets the criteria of the exemption. The documentation must 1) identify the item sold; 2) identify that the purchaser is a Medicaid recipient; and 3) verify that the transaction is billed in accordance with a DMAS provider agreement.