July 15, 1981





You inquire whether the Massachusetts sales tax applies to sales and rentals of transcutaneous electrical nerve stimulation kits ("TENS ********** Kits").

The TENS ********** Kit is a device for controlling pain by applying low-level electrical impulses to the skin of a patient through electrodes placed on the skin. Each kit includes the electrodes themselves, a gel that facilitates conductivity, a two-channel transformer with controls, a battery charger and spare battery power pack, and a carrying and storage case.

Treatment varies among patients only in the placement of the electrodes and the setting of controls; the kits need not be modified to suit the needs of particular patients.

The TENS ********** Kit is designed so that a patient can administer the pain-control treatment himself. The transformer has a removable apparel clip allowing the patient to move about during treatment with the transformer attached to his clothing.

TENS ********** Kits may be sold only on the prescription of a licensed physician, dentist or veterinarian.

Blue Cross/Blue Shield and the Medicaid program pay part or all of the sales price of TENS ********** Kits for qualifying patients.

Massachusetts General Laws Chapter 64H, Section 6(1) provides that the sales tax does not apply to

"[s]ales of medicine...on prescriptions of registered physicians...;sales of artificial devices individually designed, constructed or altered solely for the use of a particular crippled person so as to become a brace, support, supplement, correction or substitute for the bodily structure including the extremities of the individual; [and] sales of artificial limbs, artificial eyes, hearing aids and other equipment worn as a correction or substitute for any functioning portion of the body."

Also exempt from tax are sales to the United States, the Commonwealth of Massachusetts or any political subdivision thereof, or their respective agencies (G.L. c. 64H, s. 6(d)).

Saleis defined in Chapter 64H, Section 1(12)(a) as including leases and rentals.

Based on the foregoing, it is ruled that the sales tax applies to sales and rentals of the TENS ********** Kits, whether the price therefor is paid by the patient, by Blue Cross/Blue Shield, or by a governmental entity through the Medicaid program.

Very truly yours

/s/L. Joyce Hampers

L. Joyce Hampers
Commissioner of Revenue

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LR 81-61