Are EMS units, orthopedic pillows/cushions, massage devices, mattresses, whirlpool baths, and infrared lamps exempt as medical equipment if sold by prescription?

Plain-English summary

The petitioner is a retailer that sells items directly to patients on a doctor's written prescription and bills the insurer -- an electrical muscle stimulator (EMS) unit and placement belt, a cervical pillow, an orthopedic lumbar cushion, a massage device, an egg-crate orthopedic mattress, a whirlpool bath, and an infrared heating lamp. It argued that because these are sold by prescription and billed to insurance, they are primarily for medical use and exempt. It asked whether they qualify for the medical-equipment exemption.

The Office of Counsel concluded they do not qualify:

• The test. Tax Law 1115(a)(3) exempts medical equipment and supplies, but to qualify, equipment must be primarily and customarily used for medical purposes and not be generally useful in the absence of illness, injury, or physical incapacity (20 NYCRR 528.4(e)). Exemptions are strictly construed, and the burden of proving non-taxability is on the person claiming it (528.1(c)).
• These items are generally useful when healthy. The Department already opined in Publication 832 that massage devices, orthopedic mattresses, and whirlpool baths are taxable to everyone. EMS units/belts are used as a strength-training tool by healthy people. Cervical pillows and lumbar cushions are used for comfort or injury prevention. Infrared heating lamps appear in saunas, clubs, and hot-yoga studios, and are commonly used in food-prep areas to keep food warm.
• Prescription/insurance doesn't save them. Because each item may be generally useful in the absence of illness, injury, or physical incapacity, none qualifies -- regardless of a prescription, a letter of medical necessity, or insurance billing.

What this means for you

Retailers of wellness/orthopedic devices

Selling something on a prescription and billing insurance does not make it exempt. New York's medical-equipment exemption asks a product-character question: is the item primarily and customarily medical, and useless to a healthy person? Dual-use items -- EMS units, cervical/lumbar pillows, massage devices, orthopedic mattresses, whirlpools, infrared lamps -- fail that test and are taxable to everyone. Check Publication 832 and the regulation before treating an item as exempt, and remember the burden of proof is on you.

Why "medical necessity" isn't the standard

The exemption looks at whether the type of item is generally useful absent illness, not whether a particular buyer has a medical reason. An item healthy people also buy (for fitness, comfort, relaxation, or even warming food) doesn't qualify even when a doctor recommends it for one patient.

Common questions

Q: We sell these only by prescription and bill insurance -- aren't they exempt?
A: No. A prescription, letter of medical necessity, or insurance billing doesn't qualify an item; it must be primarily/customarily medical and not generally useful when healthy.

Q: Are massage devices, orthopedic mattresses, and whirlpool baths ever exempt?
A: No. Publication 832 treats them as taxable to all.

Q: Why don't EMS units qualify?
A: EMS is also used as a strength-training tool by healthy people, so it's generally useful in the absence of illness or injury.

Q: Who has to prove the item is exempt?
A: The seller. Exemptions are strictly construed and the burden of proving non-taxability is on the person claiming it.

Citations and references

• Tax Law section 1105(a) (tax on retail sales of tangible personal property)
• Tax Law section 1115(a)(3) (exemption for medical equipment and supplies)
• 20 NYCRR section 528.1(c) (exemptions strictly construed; burden on claimant)
• 20 NYCRR section 528.4(e) (medical equipment must be primarily/customarily used for medical purposes)

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/sales_ao_2012.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/sales/a12_15s.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-12(15)S
Sales Tax
July 5, 2012

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. S111102A

The Department of Taxation and Finance received a Petition for Advisory Opinion from
name redacted. Petitioner asks whether certain products (electrical muscle stimulator unit, EMS
placement belt, cervical pillow, orthopedic lumbar cushion, massage device, egg crate orthopedic
mattress, whirlpool bath and infrared heating lamp) it sells directly to a customer who present a
doctor’s written prescription qualify for the exemption under the sales and use tax for medical
equipment or supplies. We conclude that Petitioner’s products do not qualify for the exemption.
Facts
Petitioner claims that “the items are sold directly to the patient, by prescription of a
licensed doctor, and billed to the insurance company, any item it sells would be considered
primarily used for medical purposes and, therefore, exempt.” Petitioner also submitted with its
request copies of letters of medical necessity for the items in question for patients to whom it has
sold these items.
Analysis
All retail sales of tangible personal property are subject to sales tax pursuant to Tax Law
§1105(a), unless otherwise exempted. Tax Law §1115(a)(3) exempts medical equipment and
supplies from sales and compensating use tax, unless purchased at retail for use in performing
medical and similar services for compensation. An exemption is strictly construed and the
burden of proving non-taxability is on the person claiming the exemption. See 20 NYCRR
§528.1(c).
Medical equipment is defined as machinery, apparatus, and other devices (other than
prosthetic aids, hearing aids, eye glasses and artificial devices which qualify for exemption under
section 1115(a)(4) of the Tax Law), which are intended for use in the cure, mitigation, treatment
or prevention of illnesses or diseases or the correction or alleviation of physical incapacity in
human beings. To qualify for this exemption, the equipment must be primarily and customarily
used for medical purposes and not be generally useful in the absence of illness, injury or physical
incapacity. See 20 NYCRR §528.4(e).
Petitioner’s products in question: electrical muscle stimulator unit, EMS placement belt,
cervical pillow, orthopedic lumbar cushion, massage device, egg crate orthopedic mattress,
whirlpool bath and infrared heating lamp, are all generally useful in the absence of illness, injury

-2-

TSB-A-12(15)S
Sales Tax
July 5, 2012

or physical incapacity. The Department has already specifically opined in Publication 832, that
massage devices, orthopedic mattresses and whirlpool baths are taxable to all.
Electrical muscle stimulator units and EMS placement belts are useful for other than
illness, injury or physical incapacity. For instance, EMS has become useful as a strength training
tool for healthy persons.
Cervical pillows and orthopedic lumbar cushions are both used for prevention of injury,
comfort, or both, and as such, they are useful for other than treatment of illness, injury or
physical incapacity.
Infrared heating lamps are now available in saunas, clubs and hot yoga studios. In
addition to the claimed physical and physiological benefits of infrared heat to improve physical
health, infrared heat lamps are commonly used in food preparation areas to keep food warm, as
such they are useful for other than treatment of illness, injury or physical incapacity.
Because Petitioner’s products may be generally useful in the absence of illness, injury or
physical incapacity, they do not qualify for the exemption for medical equipment and supplies.

DATED: July 5, 2012

NOTE:

/S/
DEBORAH R. LIEBMAN
Deputy Counsel

An Advisory Opinion is issued at the request of a person or entity. It is limited to the
facts set forth therein and is binding on the Department only with respect to the
person or entity to whom it is issued and only if the person or entity fully and
accurately describes all relevant facts. An Advisory Opinion is based on the law,
regulations, and Department policies in effect as of the date the Opinion is issued or
for the specific time period at issue in the Opinion. The information provided in this
document does not cover every situation and is not intended to replace the law or
change its meaning.