      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


PEACEHEALTH ST. JOSEPH MEDICAL                         )          No. 79648-8-I
CENTER AND PEACEHEALTH ST. JOHN                        )
MEDICAL CENTER,                                        )          DIVISION ONE
                                                       )
                                Appellants,            )          UNPUBLISHED OPINION

               v.                                      )
STATE OF WASHINGTON,                                   )
DEPARTMENT OF REVENUE,                                 )          FILED: July 22, 2019

                                Respondent.


       ANDRus, J.     —   PeaceHealth St. Joseph Medical Center and St. John Medical

Center1 appeal a superior court determination that, under RCW 82.04.4311, they

are not entitled to a business and occupation (B&O) tax refund for taxes paid on

compensation received from non-Washington state Medicaid or Children’s Health

Insurance Programs (CHIP).                Because the plain language of the statute

unambiguously limits the B&O tax deduction to compensation received from

Washington programs, we affirm.

                                              FACTS

      PeaceHealth is a non-profit corporation that operates multiple medical

facilities in Washington State, including St. Joseph Medical Center in Bellingham,


      1   For purposes of this opinion, the appellants are collectively referred to as “PeaceHealth.”
No. 79648-8-1/2

St. John Medical Center in Longview, and Southwest Medical Center in

Vancouver. Because some of its facilities are located near the Oregon border,

PeaceHealth treats Oregon Medicaid and CHIP recipients. PeaceHealth paid B&O

taxes on the compensation it received from Oregon’s Medicaid and CHIP

programs.

        PeaceHealth sought a refund from the Department of Revenue (the

Department) for the taxes it paid between December 1 and 31 2008 under RCW
82.04.4311.2 PeaceHealth argued that, as a non-profit hospital, any revenue it

receives from any state’s Medicaid and CHIP programs is tax-exempt.                     The

Department’s Audit Division denied PeaceHealth’s refund request, reasoning that

RCW 82.04.4311 limited the tax deduction to Medicaid and CHIP compensation

authorized “under chapter 74.09 RCW,” thus limiting the deduction to

compensation received from Washington state Medicaid and CHIP programs.

        PeaceHealth appealed to the Board of Tax Appeals. The Board agreed

with PeaceHealth that RCW 82.04.4311 grants a B&O tax deduction for amounts

received from any state’s Medicaid and CHIP programs.                    The Department

appealed to Thurston County Superior Court under RCW 82.03.180 and RCW

34.05.510. The trial court reversed the Board’s decision, holding that the B&O tax

deduction under RCW 82.04.4311 does not extend to other states’ Medicaid or

CHIP programs. PeaceHealth appeals the trial court’s ruling.




        2 PeaceHealth also sought a refund of B&O tax on medical services provided to

PeaceHealth employees, which the Department denied. PeaceHealth did not appeal this
determination to the Board or to this court. The Department granted PeaceHealth’s request for
B&O tax refunds for services rendered under Washington Medicaid and CHIP.

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No. 79648-8-1/3

                                     ANALYSIS

       This court reviews Board proceedings under the Administrative Procedure

Act (APA), chapter 34.05 RCW. Steven Klein, Inc. v. State, Dept of Revenue, 183

Wn.2d 889, 895, 357 P.3d 59 (2015).            Under the APA, an agency’s legal

conclusions are reviewed de novo. Id. RCW 34.05.570(3)(d) provides that the

court “shall grant relief from an agency order” if it determines that the agency has

erroneously interpreted or applied the law.

       At issue in this appeal is the Board’s interpretation of RCW 82.04.4311.

Statutory interpretation is an issue of law reviewed de novo. Spokane County v.

Dept of Fish & Wildlife, 192 Wn.2d 453, 457, 430 P.3d 655 (201 8). We start with

“the statute’s plain language and ordinary meaning.” ki. (internal quotation marks

omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). When

the plain language is unambiguous, subject to only one reasonable interpretation,

our inquiry ends. jç~ at 458. We do not use interpretive tools such as legislative

history when statutory language is unambiguous. ki.

       A reviewing court must “accord substantial weight to an agency’s

interpretation of a statute within its expertise, and to an agency’s interpretation of

rules that the agency promulgated.” Verizon NW, Inc. v. Emp’t. Sec. Dep’t, 164

Wn.2d 909, 915, 194 P.3d 255 (2008). As the agency charged with assessing and

collecting taxes, the Department is entitled to this deference.           See RCW

82.01 .060(1) (department of revenue assesses and collects all taxes); see also

Port of Seattle v. Pollution Control Hr’qs Bd., 151 Wn.2d 568, 595, 90 P.3d 659

(2004) (a reviewing court defers to the interpretation of the agency designated by


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 No. 79648-8-114

the Legislature to administer the statute, not to the interpretation of the quasi

judicial body interpreting the statute). This court thus gives no deference to either

the Board’s or the superior court’s interpretation of RCW 82.04.4311. Verizon, 164

Wn.2d at 915.

       RCW 82.04.411 reads:

       (1) A public hospital. . or a nonprofit hospital
                                  .                      .   may deduct from
                                                             .   .


       the measure of tax amounts received as compensation for health
       care services covered under the federal medicare program
       authorized under Title XVIII of the federal social security act; medical
       assistance, children’s health, or other program under chapter 74.09
       RCW; or for the state of Washington basic health plan under chapter
       70.47 RCW.

       At issue here is the second clause of the statute, allowing a deduction for

compensation for health care services covered under “medical assistance,

children’s health, or other program under chapter 74.09 RCW.” PeaceHealth

argues the statute grants a B&O tax deduction for all compensation a non-profit

hospital receives from any state’s Medicaid or CHIP programs. We disagree,

based on basic rules of grammar and the overall structure of Washington’s

subsidized health programs within chapter 74.09 RCW.

       PeaceHealth first argues that under the last antecedent rule, the phrase

“under chapter 74.09 RCW” modifies only the preceding words “other programs,”

and cannot be read to modify “medical assistance,” or “children’s health.” Courts

employ traditional rules of grammar in discerning the plain language of a statute.

State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010). One of those rules is

known as the last antecedent rule, under which “qualifying or modifying words and

phrases refer to the last antecedent.” j4~ Related to this rule is the corollary


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 No. 79648-8-1/5

 principle that the presence of a comma before the qualifying phrase is evidence

the qualifier is intended to apply to all antecedents instead of only the immediately

preceding one. City of Spokane v. County of Spokane, 158 Wn.2d 661, 673, 146

P.3d 893 (2006). In this case, PeaceHealth correctly points out that the Legislature

did not insert a comma before the phrase “under chapter 74.09 RCW.”

          The last antecedent rule, however, is “not inflexible and uniformly binding.”

State v. McGee, 122 Wn.2d 783, 788, 864 P.2d 912 (1993).                            Structural or

contextual evidence may rebut the last antecedent inference. Lockhart v. United

States,   —   U.S._, 136 S. Ct. 958, 960, 194 L. Ed. 2d 48 (2016) (quoting Jama v.

1mm. & Customs Enforcement, 543 U.S. 335, n.4, 124 S. Ct. 694, 160 L. Ed. 2d

708 (2005)).

          Under the “series-qualifier” rule of grammar, there is a presumption that

“when there is a straightforward, parallel construction that involves all nouns or

verbs in a series, a prepositive or postpositive modifier normally applies to the

entire series.” BLAcK’s LAW DICTIONARY (10th ed. 2014). This rule applies when

two textual signals are present: first, when the modifying phrase makes sense with

all items in the series; and second, when the modifying clause appears at the end

of a single, integrated list. Lockhart, 136 5. Ct. at 965.

        First, the modifier makes sense when we apply it to all of the items in the

statutory series. RCW 74.09.010(14) defines “medical assistance” as “the federal

aid medical care program provided to categorically needy persons as defined

under Title XIX of the federal social security act.”3 RCW 74.09.010(14). RCW


        ~ Title XIX of the Social Security Act establishes Medicaid, which enables participating
states to receive federal funding to establish state programs for medical assistance for low-income

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 No. 79648-8-1/6

 74.09.010(3) defines “children’s health program” as “the health care services

 program provided to children under eighteen years of age and in households with

 incomes at or below the federal poverty level.          .   .   and who are not otherwise eligible

 for medical assistance.”4 Washington’s Medicaid program was established in

 ROW 74.09.510 and its CHIP program was established in RCW 74.09.470. Both

 of these programs arise “under chapter 74.09 ROW.” The modifier makes sense

when applied to each of the items in the statutory series.

         Second, the modifier appears at the end of a single, integrated list. Chapter

74.09 established several state health services programs, in addition to Medicaid

and CHIP. ~ ~ RCW 74.09.655 (coverage for smoking cessation programs);

RCW 74.09.715 (dental care to seniors and adults who are categorically needy,

blind, or disabled); and ROW 74.09.770 (maternity care for low-income women).5

The catchall phrase “or other program” makes sense contextually in light of the

other programs included by the Legislature within the same chapter. See also

Paroline v. United States, 572 U.S. 434, 447, 134 S. Ct. 1710, 188 L. Ed .2d 714

(2014) (the catchall clause “any other loss” is “read as bringing within a statute

categories similar in type to those specifically enumerated”).


individuals and children. 42 U.S.C. § 1396-1. A state is eligible for federal funding if it complies
with federal guidelines. 42 U.S.C. § 1396a. In Washington, the state agency that administers the
Medicaid program is the Washington State Health care Authority (HcA). RCW 41.05.021; WAC
 182-02-045.
         ~ The Children’s Health Insurance Program (CHIP) enables participating states to receive
federal funding to establish state programs to expand child health assistance to uninsured, low-
income children. 42 U.S.C. § 1397aa. The HCA administers CHIP. RCW 41.05.021. In
Washington, CHIP is called “Apple Health for Kids.” WAC 182-500-0010 (“Apple health for kids’
is the umbrella term for health care coverage for certain groups of children that is funded by the
state and federal governments under Title XIX medicaid programs, Title XXI Children’s Health
Insurance Program, or solely through state funds.”)
        5Together, these programs comprise Washington Apple Health. WAC 182-500-0120. The
HCA administers all of chapter 74.09 RCW programs. ~ RCW 41.05.006 (creating the HCA);
RCW 74.09.010(1) (defining “authority” as referred to in chapter 74.09 as the HCA).

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 No. 79648-8-1/7

        Under the series-qualifier rule, the language would be naturally read as:

        medical assistance [program under chapter 74.09 RCW], children’s
        health [program under chapter 74.09 RCW], or other program under
        chapter 74.09 RCW.

The fact that the Legislature combined different programs, all authorized by the

same chapter, in the same clause in a straightforward and parallel construction

makes the series-qualifier rule much more reasonable than the last antecedent

rule.

        Finally, the Legislature used semicolons to divide the tax deduction statute

into three categories of qualifying government programs: (1) the Medicare program

“under Title XVIII of the federal social security act;” (2) medical assistance,

children’s health, or other program “under chapter 74.09 ROW;” and (3)

Washington’s Basic Health Plan “under chapter 70.47 ROW.” The parallelism6

created by these three clauses also demonstrates that the Legislature intended

“medical assistance, children’s health, or other program” to form a single category

of programs modified by the phrase “under chapter 74.09 ROW,” therefore limiting

the deduction to revenue received from Washington state programs only.

        PeaceHealth essentially advances an interpretation of the tax deduction

statute to cover compensation from ~y medical assistance program, ~j~y

children’s health program, and ~ program under chapter 74.09 ROW. The

Legislature did not choose this formulation.           The context and structure of the




        6 Every element of a parallel series must be a functional match (word, phrase, clause,

sentence) and serve the same grammatical function in the sentence (e.g., noun, verb, adjective,
adverb).” CHIcAGO MANUAL OF STYLE § 5.242.

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No. 79648-8-1/8

provision evidences a legislative intent to keep the deduction limited to a much

narrower category of subsidized health care programs.

        Finally, we reject PeaceHealth’s contention that our reading of the statute

raises dormant Commerce Clause concerns. States may not discriminate against

or burden the interstate flow of articles of commerce. Or. Waste Sys., Inc. v. Dep’t

of Envtl. Quality of Or., 511 U.S. 93, 98, 114 S. Ct. 1345, 128 L. Ed. 2d 13(1994).

If a state law discriminates against out-of-state goods or nonresident economic

actors, the law can be sustained only on a showing that it is narrowly tailored to

advance a legitimate local purpose. Tennessee Wine & Spirits Retailers Ass’n v.

Thomas, 588 U.S._, 139 S. Ct. 2449, 2462 (2019).

        But a law that favors local government is not susceptible to standard

dormant Commerce Clause scrutiny when the motivation for the law is based on

legitimate government goals unrelated to economic protectionism. See United

Haulers Ass’n v. Oneida-Herkimer Solid Waste Mqmt. Auth., 550 U.S. 330, 342,

127 S. Ct. 1786, 167 L. Ed. 2d 655 (2007) (ordinance requiring trash haulers to

deliver solid waste only to processing plant owned and operated by New York state

justified by government interest in protecting health, safety and welfare of its

citizens).

       Additionally, when states are not mere regulators, but are also economic

actors and participate in the marketplace, any decisions they make as a market

participant, rather than a market regulator, are exempted from the dormant

Commerce Clause. Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 339, 128

S. Ct. 1801, 170 L. Ed. 2d 685 (2008) (Kentucky taxation structure exempting


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 No. 79648-8-1/9

 interest income from in-state and local bonds but taxed interest on out-of-state

 bonds did not violate dormant Commerce Clause).

         In this case, the B&O tax exemption assists nonprofit hospitals serving

 indigent Washington residents, a law that ultimately benefits the state finances

 because it is the state that procures and ultimately pays for these services. Using

tax laws that favor programs for in-state residents is not impermissible economic

protectionism. Washington may adopt tax laws to support its efforts to provide

health care to the elderly, disabled or indigent who reside in this state without

infringing on the dormant Commerce Clause. We therefore reject PeaceHealth’s

Commerce Clause challenge to the statute.7

        We conclude that the plain language of ROW 82.04.4311 limits the B&O tax

deduction to compensation PeaceHealth receives from Washington Medicaid and

CHIP programs and does not extend to compensation it receives from other states’

subsidized health programs.

        Affirmed.




WE CONCUR:




         ‘ The U.S. Supreme Court’s most recent decision on the dormant Commerce Clause,

Tennessee Wine & Spirits, invalidated a state statute imposing a durational residency requirement
on any person or corporation seeking to obtain or renew a license to operate a liquor store. 139 S.
Ct. at 2456. The Tennessee statute in that case is not analogous to the B&O tax exemption statute
at issue here because it did not involve the state provision of traditional government services, like
health care, or methods to encourage taxpaying providers to deliver those services.

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