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Update Section 940 Regarding Medicines, Drugs, Eyeglasses and ...
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23VAC10-210-940

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 set forth below terms when used in this section 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 those means 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 et seq. Article 5 (§ 54.1-3443 et seq.) of Title 54.1 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 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 Part 862.

"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) of this definition; 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 only those persons means a person licensed as a medical doctors and shall doctor. For purposes of this definition, a "licensed physician" does not include veterinarians a veterinarian, chiropractors chiropractor, opticians optician, optometrists and optometrist, 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 section, 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 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, licensed 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 licensed 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 licensed hospital or 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. Sales of Medicines and drugs sold on prescriptions. Consumers may purchase medicines or drugs, including oxygen, on written prescriptions of issued by licensed physicians, or dentists are, optometrists, ophthalmologists, opticians, audiologists, hearing aid dealers and fitters, nurse practitioners, physician assistants, and veterinarians exempt from the sales and use tax. Sales of medicines Medicines and drugs on a physician's or dentist's telephone (oral) purchased pursuant to 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 the same refills 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 pharmacist 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 a licensed physician certain health care providers. A licensed physician, licensed 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 of Taxation 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 conducted for profit are subject to the similar facilities. Licensed hospitals, nursing homes, clinics, and similar facilities may purchase medicines and drugs for their use and consumption exempt from the retail sales and use 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; (ii) be sold for internal or topical use; (iii) be sold for the cure, mitigation, treatment, or prevention of disease in human beings; and (iv) fall outside of the excluded categories set forth in subdivision 3 of this subsection. 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 section;

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.

4. 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

Headache relief aid products

Alcohol, rubbing

Hemorrhoidal treatments

Alcohol swabs

Hydrogen peroxide

Allergy relief products

Ibuprofen

Analgesics

Insect bite and sting preparations

Anesthetics

Iodine

Antacids

Itch and rash relievers

Antibiotic ointments

Laxatives

Antifungals

Lice products used to kill lice that infect humans

Antihistamines

Liniments

Antimalarials

Lip balms, ice and salves, medicated

Antinauseants

Lotions, medicated

Antiseptics

Menstrual cramp relievers

Aspirin

Mercurochrome

Asthma preparations

Milk of Magnesia

Baby powder, medicated

Mineral oil

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

Motion sickness remedies

Bee sting relievers

Mouthwashes containing antiseptic

Benzoin

Muscle ache relievers

Boric acid ointment

Nasal drops and sprays

Burn remedies

Nicotine supplements that treat nicotine withdrawal symptoms

Calamine lotion

Oil of wintergreen

Camphor

Pain relievers, oral or topical

Castor oil

Parasiticides for humans

Cathartics

Peroxide, medicinal

Cold or canker sore preparations

Poison ivy and oak preparations

Cold capsules and remedies

Powder, medicated

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

Rectal preparations

Contraceptive creams containing nonprescription drugs and intended to treat a disease

Shampoos, medicated

Cough and cold items, cough drops, cough syrups

Sinus relievers

Dandruff and seborrhea preparations

Sitz bath solutions

Decongestants

Skin irritation relievers

Diarrhea remedies

Sleep aids and sleep inducers

Digestive aids

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

Disinfectant for use on or about the human body

Styptic pencils

Diuretics

Sunburn lotions

Earache and earwax removal preparations

Sunscreen containing SPF protection

Eczema preparations

Suppositories, excluding contraceptives

Epsom salts

Teething preparations

Expectorants

Throat lozenges, medicated

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

Tooth desensitizers

Fever blister aids

Toothache relievers

First aid healing agents, cleaners

Upset stomach relievers

Fluoride rinses and antiseptic dental washes

Vaginal infection remedies

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

Wart removers

Fungicides for human use

Witch hazel

Glucose tablets

Worming treatments for human use humans

Glycerine products intended for medical use

Zinc oxide ointments

Hay fever aid products

5. 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

Household disinfectants and insecticides

Adhesive removers

Infant formula

Adhesive tape

Insect repellant

Ammonia

Mouthwashes, excluding antiseptic mouthwashes

Appetite suppressants

Nutraceutical products

Bath crystals, milks, oils and powder

Oral electrolyte mixtures for rehydration

Birth control preparations

Pet medical supplies

Breath fresheners and sweeteners

Pet medicines

Bubble bath

Petroleum jelly

Bunions or corn pads, unless medicated

Powders, nonmedicated

Cleaning creams and lotions

Prophylactics

Cod liver oil

Pumice powder

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

Saline solution

Cosmetics, whether or not containing medicinal properties or acne treatments

Sanitary napkins, tampons, and similar items

Cotton applicators, rolls, balls, and swabs

Shampoos, nonmedicated

Cuticle softener

Shaving products

Denture adhesives, cleaners, and preparations

Skin bleaches

Deodorants and antiperspirants

Soaps for general use

Depilatories

Stimulants

Dental floss and threaders

Suntan lotion without SPF protection

Diet aids

Talcum powder

Dietary foods, supplements, and substitutes

Testing kits

Distilled water

Thermometers

Exfoliants

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

Glycolic acid products

Vitamins and mineral supplements

Hair restoration products

Wax

Hand sanitizers, sprays, foams, gels, soaps or wipes, including antibacterial items

Weight control preparations

Herbal teas, drinks, pills, or powder supplements

Wrinkle removing and concealing preparations

6. If a homeopathic product is classified as a drug by the federal 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.

7. 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.

8. 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.

9. 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. Sales of eyeglasses 2. Eyeglasses ground on prescription of physicians, ophthalmologists, or optometrists, including as well as 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 by that are purchased for resale and may present the optical supply 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 supplier 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. All sales to users or consumers of eyeglass 4. 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 of 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 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 of this subsection. The listing is intended to be exemplary and not all inclusive.

Aerosol compressors, stationary and portable

Oxygen concentrators

Air oxygen mixers

Oxygen conserving devices

Alternating pressure pads

Oxygen cylinders

Alternating pressure pumps, if used with alternate pressure pads

Oxygen equipment

Apnea monitors and accessories

Oxygen fittings and accessories

Aspirators

Oxygen humidifiers

Bed rails

Oxygen tubing

Bedside commodes

Oxygen

Bone fracture therapy devices

Paraffin baths

Catheter devices and supplies

Patient care equipment for physical and occupational therapy

Colostomy supplies and devices

Patient lifts

Communication aids for physically impaired

Patient lift slings

Continuous passive motion devices

Patient transport devices and boards

Continuous positive airway pressure (CPAP) and CPAP accessories

Percussors and vibrators

Crawlers

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

Crutches, crutch pads, and tips

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

Cylinder stands and support devices

Pneumatic compression units and accessories

Cylinder transport devices, sheaths and carts

Posture back supports, including back supports for seating

Decubitus seating pads and bed pads

Raised toilet seats

Dressing aids, button loops, zipper aids, etc.

Reaching aids

Eating and drinking aids

Regulators and flowmeters

Emergency oxygen delivery units

Respiratory accessories, such as PFLEX or Peak Flow items

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

Respiratory therapy equipment

Face masks

Restraints

Fitted stroller

Room humidifiers with script

Foam seating pads

Shampoo trays

Foam wedges

Shower seating and bath benches

Gas oxygen refills and tanks

Shower grip bars

Geriatric chairs

Sitting and sleeping cushions

Glucose monitors and supplies, except batteries

Specialized seating, desks, and work stations

Grooming aids and dental aids

Specially designed hand utensils

Hand exercise equipment putty

Splints and holders

Heating pads

Stairglides and lifts in home

Hospital beds

Standing frames, devices, and accessories

Hospital bed mattresses and egg crates

Stethoscope

Household aids for the impaired

Tank wrench

Hydro-collators

Transcutaneous electrical nerve stimulator (TENS) unit and muscle stimulators

Hydro-therm heating pads

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

Ice bags

Toilet safety frames

Intermittent positive pressure breathing (IPPB) circuits, devices and supplies

Tracheotomy and suction supplies

Intravenous (IV) stands

Traction stands, pulleys, etc.

IV supplies such as catheters and tubing

Trapeze bars and bar stands

Leg weights, related to rehabilitation

Ultrasonic nebulizers

Lift recliners

Vaporizer

Liquid and gas oxygen systems, stationary and portable

Volume ventilators, respirators, and related device supplies

Manual resuscitators

Walker accessories

Muscle stimulators

Walkers

Nasal cannulas

Walking canes, quad canes, accessories

Nebulizers and tubing

Wheelchairs

Overbed tables

Wheel walkers

Oximeters

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 of this subsection 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 and 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 who 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 from the retail sales and use tax, provided the purchase is made through a Department of Medical Assistance Services (DMAS) provider agreement. This exemption applies to any type of medical product or supply, incontinence, or wound care product, provided DMAS 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 (i) identify the item sold; (ii) identify that the purchaser is a Medicaid recipient; and (iii) verify that the transaction is billed in accordance with a DMAS provider agreement.

23VAC10-210-9998

FORMS (23VAC10-210)

Business Registration Application, Form R-1 (rev. 3/08).

5% Virginia Sales Tax Table (rev. 9/04).

2.5% Virginia Qualifying Food Sales Tax Table (rev. 4/05).

Certificate of Registration, Form ST-4 (rev. 2/08).

Virginia Direct Payment Permit Sales and Use Tax Return, Form ST-6 (rev. 9/05).

Virginia Direct Payment Permit Sales and Use Tax Return Worksheet (Instructions), Form ST-6A (rev. 9/05).

Virginia Schedule of Local Taxes, Form ST-6B (rev. 7/05).

Virginia Business Consumer's Use Tax Return, Form ST-7 (rev. 7/05).

Virginia Business Consumer's Use Tax Return Worksheet and Instructions, Form ST-7A (rev. 6/05).

Virginia Out-of-State Dealer's Use Tax Return, Form ST-8 (rev. 9/05).

Virginia Out-of-State Dealer's Use Tax Return Worksheet and Instructions, Form ST-8A (rev. 9/05).

Virginia Retail Sales and Use Tax Return, Form ST-9 (rev. 11/06).

Virginia Retail Sales and Use Tax Worksheet and Instructions, Form ST-9A (rev. 9/05).

Schedule of Local Sales and Use Taxes, Form ST-9B (rev. 7/05).

Virginia Retail Sales and Use Tax Return, Form ST-9 (6210051) (rev. 3/2013)

Virginia Retail Sales and Use Tax Return for Consolidated Filers, Form ST-9 (6210051) (rev. 3/2013); includes:

Virginia Schedule of Local Sales and Use Taxes, Form ST-9B (6202053) (rev. 3/2013)

Virginia Retail Sales and Use Tax, ST-9A Worksheet (6201052) (rev. 3/2013)

Virginia Schedule of Regional State Sales and Use Tax, Form ST-9R (6201055) (rev. 2013)

Application for Sales and Use Tax Exemption for Nonprofit Organizations, Form NPO Appl (rev. 1/08).

Sales and Use Tax Certificate of Exemption (For dealers who purchase tangible personal property for resale, lease or rental), Form ST-10 (rev. 10/99).

Sales and Use Tax Certificate of Exemption, Form ST-10 (6201056) (rev. 9/2015) - For a Virginia dealer who purchases tangible personal property for resale, or for lease or rental, or who purchases materials or containers to package tangible personal property for sale

Sales and Use Tax Certificate of Exemption (For catalogs and other printed materials distributed outside of Virginia; property delivered to factor or agent for foreign export; advertising for placement in media; advertising supplements), Form ST-10A (rev. 6/95).

Sales and Use Tax Certificate of Exemption (for use by handicapped persons for purchase of special equipment for installation on a motor vehicle), Form ST-10B (rev. 7/78).

Sales and Use Tax Certificate of Exemption (For manufacturing, processing, refining, converting, mining, basic research and research and development in experimental or laboratory sense, or certified pollution control equipment; equipment, materials or supplies used in the production of a publication issued at least quarterly; high speed electrostatic duplicators; materials, containers, etc. for future used for packaging tangible personal property for shipment or sale), Form ST-11 (rev. 6/06).

Sales and Use Tax Certificate of Exemption (For use by construction contractors and non-manufacturers when purchasing tangible personal property for usage directly in manufacturing products for sale or resale which are exempt from the tax; incorporation into real property in another state or foreign country which could be purchased free from the tax in such state or country; agricultural production, to be affixed to real property owned or leased by a farmer engaged in agricultural production for market), Form ST-11A (rev. 5/06).

Sales and Use Tax Certificate of Exemption (For use by a semiconductor manufacturer), Form ST-11B (rev. 5/06).

Sales and Use Tax Certificate of Exemption (For use by the Commonwealth of Virginia, a political subdivision of the Commonwealth of Virginia, or the United States), Form ST-12 (rev. 10/06).

Sales and Use Tax Certificate of Exemption (For use by certain medical related organizations), Form ST-13 (rev. 10/06).

Sales and Use Tax Certificate of Exemption (For use by nonprofit churches), Form ST-13A (rev. 6/07).

Sales and Use Tax Certificate of Exemption (For use exclusively by an out-of-state dealer who purchases tangible personal property in VA for immediate transportation out of VA in his own vehicle for resale outside VA), Form ST-14 (rev. 3/99).

Sales and Use Tax Certificate of Exemption (For use exclusively by an out-of-state dealer who purchases livestock in VA for immediate transportation out of VA for resale outside VA.) Form ST-14A (rev. 1/99).

Sales and Use Tax Certificate of Exemption (For use by individuals purchasing heating oil, artificial or propane gas, firewood or coal for domestic consumption), Form ST-15 (rev. 9/05).

Sales and Use Tax Certificate of Exemption (For use by watermen who extract fish, bivalves, or crustaceans from waters for commercial purposes.), Form ST-16 (rev. 9/05).

Sales and Use Tax Certificate of Exemption (For use by harvesters of forest products.), Form ST-17 (rev. 7/99).

Sales and Use Tax Certificate of Exemption (For use by farmers engaged in agricultural production), Form ST-18 (rev. 5/06).

Sales and Use Tax Certificate of Exemption (For use by shipping lines engaged in interstate or foreign commerce, and by shipbuilding companies engaged in building, converting or repairing ships or vessel), Form ST-19 (rev. 6/05).

Sales and Use Tax Certificate of Exemption (For use by certain public service corporations, commercial radio, and television companies, cable television systems, taxicab operators and certain airlines.), Form ST-20 (rev. 9/04).

Sales and Use Tax Certificate of Exemption (For use by production companies, program producers, radio, television and cable T.V. companies, and other entities engaged in the production and creation of exempt audiovisual works and the licensing, distribution and broadcasting of same), Form ST-20A (rev. 9/05).

Sales and Use Tax Certificate of Exemption (For use when purchasing or leasing railroad rolling stock from a manufacturer), Form ST-22 (rev. 4/07).

Sales and Use Tax Certificate of Exemption (For use by individuals purchasing multi-fuel heating stoves for resident heating, Form ST-23 (rev. 8/07).

Virginia Consumers Use Tax Return for Individuals, Form CU-7 (rev. 6/07).

Virginia Vending Machine Dealer's Sales Tax Return, Form VM-2 (rev. 8/05).

Virginia Vending Machines Dealer's Sales Tax Return Worksheet, Form VM-2A (rev. 9/05).

Schedule of Local Vending Machine Sales Tax, Form VM-2B (rev. 7/05).