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kind, quantity, and frequency of the treatments, and reevaluate
the patient on an ongoing basis. That these services are
critical and essential to the furnishing of the chemotherapy
drugs by petitioner's staff cannot be denied.
Petitioner is not a merchandiser. Although it is true that
petitioner transfers the tangible quality of the chemotherapy
drugs to its patients when it administers the drugs to them,
petitioner does so only as an integral and inseparable part of
its service. Petitioner is precluded by law from selling the
chemotherapy drugs to any person without providing the medical
service, and the drugs are not susceptible of self-
administration. In fact, the only way that a person may legally
receive the chemotherapy drugs from petitioner is to agree to
petitioner's overall chemotherapy service, and, when they do
agree to this service, they have no say in the type or quantity
of chemotherapy drugs which petitioner uses in their care.
Usually, they are not even aware of the type or quantity of
chemotherapy drugs used on them as part of their treatment.
Where, as here, the service provider dispenses the drugs as an
indispensable and inseparable part of the rendering of its
services, the service provider is not selling “merchandise”. The
service provider is using the items as supplies which are
essential to the provision of its services. A medical practice
such as petitioner’s is inherently a service business, and the
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