Can a West Virginia county pay EMS salary-supplementation funds to part-time and temporary EMTs, and to EMTs who already get a supplement from a different county?
Plain-English summary
The Emergency Medical Services Salary Enhancement Fund is a West Virginia program that gives counties money to top up EMT and paramedic pay. It exists because rural EMS agencies are struggling to recruit and keep people, especially with neighboring states paying more. The Director of the Office of Emergency Medical Services finalized rules for the fund in early 2024.
A Brooke County prosecutor asked two practical payroll questions. First: in a county with one ambulance agency, can the agency pay supplements to part-time and temporary EMTs? Second: if an EMT works for agencies in two different counties (one as primary, one as a side job), can each agency pay her a supplement?
The AG said yes to both. The statute defines covered personnel broadly, with "any" person certified by the EMS commissioner who responds to at least ten 911 calls in twelve months. There is no full-time-only carve-out anywhere in either the statute or the rules. The "primary agency" language in the rules, which says EMS personnel will get supplements from the agency where they work most of their hours, is meant to resolve disputes inside one county that has multiple agencies. It does not block a second supplement from a different county's agency.
The opinion's bottom line: counties have discretion to pay these supplements as the legislature designed. The eligibility floor is the ten-call threshold, not full-time status. And the cross-county case is not addressed by the rules at all, so individual agencies retain discretion to pay.
What this means for you
If you run a county EMS agency or sit on a county commission
You can supplement part-time and temporary EMTs and paramedics, as long as they meet the ten-call-per-year minimum. The opinion says the legislature deliberately wrote § 16-4C-25 broadly because rural counties need flexible hiring options, and reading it to cover full-time only would defeat the retention purpose.
You also have discretion to pay an employee who is also drawing a supplement from an agency in a different county. The "primary agency" presumption in W. Va. Code R. § 64-116-4.9 covers a different problem (one county with two agencies pointing fingers about who pays). Where two counties are involved, you decide based on whether the employee meets your ten-call threshold for your agency.
A few things to lock down in your local procedure:
- Track the 12-month rolling 911 response count for every employee you might pay. The rule's threshold is the eligibility hook, and you will want a documented count if anyone audits.
- Document your decision when paying a cross-county dual-employed worker. The discretion is yours, but having a written rationale ("we pay because retention in our county depends on this person") protects the disbursement if the State Auditor or Tax Department asks.
- If you have multiple ambulance agencies in your county, follow the percentage allocation in W. Va. Code R. § 64-116-4.9 (based on 911 call volume) before money flows to individual employees.
If you are a part-time or temporary EMT
You qualify for salary supplementation if you are certified by the EMS commissioner and respond to at least ten 911 calls in a 12-month period. The statute and the rules do not exclude you because you work part-time or seasonally. Confirm with your agency that your call volume is being tracked toward the threshold, and that you are flagged as eligible when the county distributes funds.
If you work for two ambulance agencies in two different counties, each agency can independently pay you a supplement if you separately meet the ten-call threshold for each. Both agencies have discretion to pay, but neither has to. Ask each agency how it handles dual-employed personnel.
If you advise the Office of Emergency Medical Services or are tracking program rollout
Two practical takeaways from the AG's reading:
- The "primary agency" rule is doing intra-county allocation work, not eligibility-gatekeeping. The opinion treats it as a tiebreaker for which of two same-county agencies pays, not a ceiling on who can be paid statewide.
- The statute's "any" language is the operative driver. Future rule amendments would have to be careful not to narrow eligibility (full-time only, single-county only, etc.) without legislative authorization, since the AG reads § 16-4C-3(h) and § 16-4C-25 as expansive.
Common questions
Q: Does this mean a paramedic working three part-time gigs across three different counties could collect three supplements?
A: In principle yes, if she meets the ten-call threshold for each agency in each county. Each agency has discretion to pay, so the answer in practice depends on each agency's policy. The opinion's analysis stops at "the rule does not forbid this," and emphasizes that the retention purpose of the fund supports paying retention-relevant personnel.
Q: What about volunteers? Can they get a supplement?
A: No. The legislative rule defines "active EMS personnel" as a "paid employee of an ambulance transporting agency." The opinion explains in a footnote that the rule's focus on paid employees comes from the statute's reference to "salary supplementation," which assumes the recipient already draws a salary. Volunteers may have other paths to support, but not this fund.
Q: My county has two ambulance agencies. Both want to pay the same EMT. What happens?
A: The legislative rule resolves this with the primary-agency presumption: the agency where the EMT works at least 51% of her hours pays the supplement. W. Va. Code R. § 64-116-3.10, § 64-116-4.9. If neither agency hits 51%, the percentage allocation in W. Va. Code R. § 64-116-4.9 (based on 911 call volume) governs how the county splits its allocation between agencies first, and each agency then pays its own employees.
Q: Does an EMT need to be employed for a full year to qualify?
A: The threshold is ten 911 call responses in a 12-month period, not 12 months of employment. A new hire who quickly racks up ten calls qualifies. A long-tenured employee who only responds to nine in 12 months does not.
Q: Can an agency pay the supplement to administrative staff who do not respond to 911 calls?
A: No. The active-personnel definition in W. Va. Code R. § 64-116-3.1 limits eligibility to Advanced EMTs, EMTs, EMVOs, and Paramedics with the ten-call threshold. Office and management staff who do not personally respond to calls do not qualify, even if they are certified.
Q: What's the public-policy reason for paying part-time and temporary workers?
A: The opinion leans on Babb v. Wilkie and McKneely on the expansive scope of the word "any," and on the fund's stated purpose: "encourage retention" in counties with "a challenge recruiting and retaining emergency medical services personnel due to interstate competition." Reading "covered personnel" narrowly would defeat that purpose because rural counties often staff with mixed full-time, part-time, and temporary workers.
Background and statutory framework
The Emergency Medical Services Salary Enhancement Fund sits in W. Va. Code § 16-4C-25. The legislature created it to "support supplementing the salaries of, and provide crisis response for, county emergency medical service personnel." Section 16-4C-3(h) defines those personnel as "any person certified by the commissioner to provide emergency medical services as set forth by legislative rule." That cross-reference is important, because the operational details live in the rules, not in the statute.
The Director of the Office of Emergency Medical Services adopted final legislative rules in early 2024. W. Va. Code R. § 64-116-1 et seq. Key definitions:
- Active EMS personnel (§ 64-116-3.1): an Advanced EMT, EMT, Emergency Medical Vehicle Operator, or Paramedic who is a paid employee of an ambulance transporting agency and participates in 10 or more 911 call responses in a 12-month period.
- Primary agency (§ 64-116-3.10): the agency where active EMS personnel are employed for 51% or more of their working hours.
- Use of funds (§ 64-116-3.11): "for the sole purpose of supplementing the salaries of active emergency medical services personnel."
How the money flows: the Director distributes to counties using a formula in §§ 64-116-4.4 and 4.8. Counties then distribute to agencies. Where a county has more than one agency, § 64-116-4.9 says counties "shall distribute funds to those agencies using a percentage allocation based on 911 call volume" and creates "a presumption that active emergency medical services personnel will receive salary supplementation funds from their primary agency."
The legislature deliberately wrote § 16-4C-25 broadly, with "any" language at every opportunity. The AG follows the line of cases that treat "any" as expansive: McKneely, Babb v. Wilkie. The expansive reading matters for the part-time question because the legislature did not say "full-time" anywhere, and Eldercare of Jackson County tells West Virginia courts not to read in restrictions the legislature left out.
The agency-discretion piece comes from Swiger v. UGI/AmeriGas, which says legislative rules within the agency's statutory authority are valid unless arbitrary or capricious. The Office of Emergency Medical Services made permissible interpretive calls when it defined "active personnel" by call volume rather than employment status.
The cross-county question requires a different lens: not what the rule says, but what it does not say. The opinion uses State v. Louk for the principle that a word's meaning depends on context: "primary agency" appears inside a subsection about "counties that house more than one ambulance transporting agency." The presumption is doing same-county work. Reading it to govern cross-county situations would extend the rule beyond its plain context. And the canon of expressio unius does not apply because, as Barnhart v. Peabody Coal explains, that canon requires the listed items to be members of "an associated group or series." Same-county allocation rules are not parallel to cross-county allocation rules.
The practical fallback is the "presumptions are not conclusive" line from Lincoln v. French (1881), which the opinion uses to add belt-and-suspenders certainty: even if the primary-agency presumption somehow applied to cross-county situations, it could be rebutted by other agencies showing they have a retention reason to pay too.
Citations
- W. Va. Code § 5-3-2; § 16-4C-25; § 16-4C-3(h); § 64-5-1(k)
- W. Va. Code R. §§ 64-48-6; 64-116-1 et seq. (esp. 3.1, 3.10, 3.11, 4.4, 4.8, 4.9)
- McKneely v. W. Va. Consol. Pub. Ret. Bd., 226 W. Va. 553, 703 S.E.2d 524 (2010)
- Babb v. Wilkie, 589 U.S. 399 (2020)
- Jan-Care Ambulance Serv., Inc. v. Pub. Serv. Comm'n of W. Va., 206 W. Va. 183, 522 S.E.2d 912 (1999)
- Eldercare of Jackson Cnty., LLC v. Lambert, 250 W. Va. 291, 902 S.E.2d 840 (2024)
- Bane v. Bd. of Educ. of Monongalia Cnty., 178 W. Va. 749, 364 S.E.2d 540 (1987)
- Swiger v. UGI/AmeriGas, Inc., 216 W. Va. 756, 613 S.E.2d 904 (2005)
- Keener v. Irby, 245 W. Va. 777, 865 S.E.2d 519 (2021)
- State ex rel. Appleby v. Recht, 213 W. Va. 503, 583 S.E.2d 800 (2002)
- Rowe v. Sisters of Pallottine Missionary Soc'y, 211 W. Va. 16, 560 S.E.2d 491 (2001)
- State v. Louk, 237 W. Va. 200, 786 S.E.2d 219 (2016)
- Lincoln v. French, 105 U.S. 614 (1881)
- Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003)
- State v. Beaver, 248 W. Va. 177, 887 S.E.2d 610 (2022)
Source
- Landing page: https://ago.wv.gov/media/17391/download?inline
- Original PDF: https://ago.wv.gov/media/17391/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
Patrick Morrisey, Attorney General
(304) 558-2021
Fax (304) 558-0140
September 24, 2024
The Honorable Joseph E. Barki, III
Brooke County Prosecuting Attorney
620 Main Street, Suite 106
Wellsburg, WV 26070
Prosecutor Barki:
You have asked for an Opinion of the Attorney General about monies drawn from the
Emergency Medical Services Salary Enhancement Fund. This Opinion is being issued under West
Virginia Code Section 5-3-2, which provides that the Attorney General "may consult with and
advise the several prosecuting attorneys in matters relating to the official duties of their office."
When this Opinion relies on facts, it depends solely on the factual assertions in your
correspondence and discussions with the Office of the Attorney General.
The Legislature created the Emergency Medical Services Salary Enhancement Fund "to
support supplementing the salaries of, and provid[e] crisis response for, county emergency medical
service personnel." W. Va. Code § 16-4C-25(a). Those personnel include "any person certified
by the commissioner to provide emergency medical services as set forth by legislative rule." Id.
§ 16-4C-3(h); see also id. § 16-4C-25(a) (cross-referencing Section 16-4C-3). The Legislature
then charged the Director of the Office of Emergency Medical Services with promulgating rules
for "distributing any available funds to counties to accomplish the purpose of this section." Id.
§ 16-4C-25(b).
The Director promulgated final legislative rules in early 2024. See W. Va. Code R. § 64-116-1, et seq.;
see also W. Va. Code § 64-5-1(k) (approving the rule). Among other things, the
legislative rules define a qualifying employee as "[a]n Advanced Emergency Medical Technician,
Emergency Medical Technician, Emergency Medical Vehicle Operator, or Paramedic who is a paid
employee of an ambulance transporting agency and participates in 10 or more 911 call responses
in a 12-month period." W. Va. Code R. § 64-116-3.1. The rule also establishes a "presumption
that active emergency medical services personnel will receive salary supplementation funds from
their primary agency." Id. § 64-116-4.9. Primary agencies are those "at which active emergency
medical services personnel are employed for 51 percent or more of their working hours." Id. § 64-116-3.10.
A county may employ part-time and temporary emergency medical services personnel.
They may also work for multiple agencies in multiple counties. Your letter asks how the
statute and legislative rules address salary enhancements for those employees. You raise the
following legal questions:
(1) May counties that house only one ambulance transporting agency distribute Emergency Medical Services
Salary Enhancement funds to temporary or part-time medical services personnel who participated in
10 or more 911 call responses in a 12-month period?
(2) May counties that house only one ambulance transporting agency distribute Emergency Medical Services
Salary Enhancement funds to temporary or part-time emergency services personnel who participated in 10 or more
911 call responses in a 12-month period, where the personnel are also participating in 10 or more 911 call responses
in a 12-month period for an ambulance transporting agency in another county?
The plain language of the statute and the rule answers your first question. All personnel
who participated in ten or more 911 call responses in a twelve-month period are eligible. Neither
the Legislature nor the Director distinguished between full-time, part-time, temporary, seasonal,
or other kinds of personnel. The minimum-run condition and certification as an emergency
medical services employee are the sole requirements for paid personnel.
Further, an otherwise eligible individual working for an agency in one county can receive
a supplementation from that agency even if the same individual is eligible to receive a
supplementation from a different agency in another county. Both the statute and the legislative
rule are silent on that circumstance, leaving the agency with the discretion to pay.
DISCUSSION
Counties do not distribute funds directly to employees. Rather, the Director of the Office
of Emergency Medical Services distributes funds to counties "for salary supplementation and crisis
response" in accordance with a formula set out in the legislative rules. W. Va. Code R. § 64-116-4.4;
see also id. § 64-116-4.8. Counties then distribute salary-supplementation funds to agencies.
See, e.g., id. § 64-116-4.9 (describing how "[c]ounties receiving funds ... that house more than
one ambulance transporting agency shall distribute funds to those agencies using a percentage
allocation based on 911 call volume"); id. § 64-116 App. B (referring to "amount of salary
supplementation distributed to each emergency medical services provider to each agency in your
county"). Agencies may use those funds "for the sole purpose of supplementing the salaries of
active emergency services personnel." Id. § 64-116-3.11.
We thus construe your questions to address how the emergency medical services agencies
may distribute their county distributions to personnel.
I. Part-Time and Temporary Personnel
First, part-time and temporary personnel are eligible for salary supplementation from the
Fund if they respond to at least ten 911 calls in a twelve-month period.
Start with the statute's language. Funds are intended to "supplement[] the salaries
of ... county emergency medical service personnel as that term is defined in § 16-4C-3[(h)] of
th[e] code or a county designated or contracted emergency medical service provider." W. Va.
Code § 16-4C-25(a). In the cross-referenced provision, the Legislature defines "emergency
medical services personnel" to mean "any person certified by the commissioner to provide
emergency medical services as set forth by legislative rule." Id. § 16-4C-3(h) (emphasis added);
see also W. Va. Code R. § 64-48-6 (describing the certification process and requirements for such
persons).
In using the word "any," the Legislature stressed the definition's expansive reach. "Any"
is a "widely encompassing" term. McKneely v. W. Va. Consol. Pub. Ret. Bd., 226 W. Va. 553, 560,
703 S.E.2d 524, 531 (2010); see also Babb v. Wilkie, 589 U.S. 399, 405 n.2 (2020) ("We have
repeatedly explained that the word 'any' has an expansive meaning." (cleaned up)). Indeed, the
Supreme Court of Appeals has construed a similar statute in just such an expansive way, finding
that it embraces nearly all persons who "provid[e] medical care, particularly in emergency
circumstances." Jan-Care Ambulance Serv., Inc. v. Pub. Serv. Comm'n of W. Va., 206 W. Va. 183,
193, 522 S.E.2d 912, 922 (1999). And in adding that "county designated or contracted emergency
service provider[s]" are also covered, the Legislature doubly emphasized the statute's broad scope.
W. Va. Code § 16-4C-25(a).
At the same time, the Legislature did not use words that would otherwise limit eligibility.
It did not say in either the substantive statute or the definitional provision that the funds were meant
for full-time employees alone. The Legislature's choice not to demand more is meaningful. "Just
as courts are not to eliminate through judicial interpretation words that were purposely included,
we are obliged not to add to statutes something the Legislature purposely omitted." Eldercare of
Jackson Cnty., LLC v. Lambert, 250 W. Va. 291, 902 S.E.2d 840, 853 (2024); cf. Bane v. Bd. of
Educ. of Monongalia Cnty., 178 W. Va. 749, 753, 364 S.E.2d 540, 544 (1987).
The legislative rule confirms that temporary and part-time employees can be eligible for
salary supplementation. Again, funds distributed for "salary supplementation" are "for the sole
purpose of supplementing the salaries of active emergency medical services personnel." W. Va.
Code R. § 64-116-3.11. And "[a]ctive emergency medical services personnel" are defined as "[a]n
Advanced Emergency Medical Technician, Emergency Medical Technician, Emergency Medical
Vehicle Operator, or Paramedic who is a paid employee of an ambulance transporting agency and
participates in 10 or more 911 call responses in a 12-month period." Id. § 64-116-3.1. These
provisions say nothing about full-time or part-time status. A paid employee need only respond to
a minimum number of calls each year to qualify.
As "a valid legislative enactment," these rules control the issue unless they were "beyond
the constitutional or statutory authority extended to the agency involved or if the rule[s] [are]
determined to be arbitrary or capricious." Swiger v. UGI/AmeriGas, Inc., 216 W. Va. 756, 763,
613 S.E.2d 904, 911 (2005). Particularly where a statute is "silent or ambiguous" on a specific
issue, West Virginia courts have said that agencies have "discretion to interpret" the statute.
Keener v. Irby, 245 W. Va. 777, 785, 865 S.E.2d 519, 527 (2021). The agency has "permissibl[y]"
done so here. Id.
The fund's purpose also supports this understanding. See State ex rel. Appleby v. Recht,
213 W. Va. 503, 510, 583 S.E.2d 800, 807 (2002). The fund is meant to "encourage retention."
W. Va. Code § 16-4C-25(a). It aims at those counties who "may demonstrate the most need," who
have exhausted other funding avenues (special levies), or who "have a challenge recruiting and
retaining emergency medical services personnel due to interstate competition." Id. § 16-4C-25(b)(1)-(4).
In difficult hiring environments like these, flexibility in hiring is key. Yet if the statute were
construed to address only full-time employees, then the fund's benefit would be limited.
For all these reasons, county emergency medical services agencies may pay part-time and
temporary employees with monies distributed from the fund, so long as those employees meet the
legislative rule's minimum-run requirement of ten 911 calls per year.
II. Cross-County Dual Employment
Second, an agency may pay a salary supplement to an employee who completes at least ten
911 calls for that agency even if the employee is also employed by another agency in a different
county.
Here again, the statute does not place any limits relevant to your question. It does not
suggest that different rules might apply to personnel who are employed by multiple agencies, even
though it's known that such personnel exist. So long as a person is certified, they appear to be
eligible, subject to the requirements of the legislative rule. Again: courts cannot "arbitrarily
... read into [a statute] that which it does not say." Rowe v. Sisters of Pallottine Missionary Soc'y,
211 W. Va. 16, 25, 560 S.E.2d 491, 500 (2001).
Your question instead seems prompted by the legislative rule's reference to "primary
agencies." In a subsection that discusses "counties ... that house more than one ambulance
transporting agency," the rule creates "a presumption that active emergency medical services
personnel will receive salary supplementation funds from their primary agency." W. Va. Code R.
§ 64-116-4.9-10. A primary agency is "[a]n ambulance transporting agency at which active
emergency medical services personnel are employed for 51 percent or more of their working
hours." Id. § 64-116-3.10.
We doubt that this provision is relevant to your circumstances, as it focuses on a single
county with two or more agencies. That context should be decisive, as "the meaning of a word
cannot be determined in isolation, but it must be drawn from the context in which it is used." State
v. Louk, 237 W. Va. 200, 204, 786 S.E.2d 219, 223 (2016) (cleaned up). The Director might have
had unique concerns with an employee receiving multiple "supplementations" from the same
county distribution (rather than multiple supplementations from separate county distributions).
Likewise, the Director may have been concerned that, without the expressed "presumption," two
intra-county agencies might merely point the finger at one another, each expecting the other to
bear the financial burden of keeping the employee in the county.
Still, even assuming this primary-agency presumption applies here, it would not preclude
payment to a person employed by two agencies in two counties. Under the presumption, the
"primary agency" would have authority to pay the salary supplement to a dual-employed person
consistent with the presumption described in the legislative rule. But the legislative rule would
also not forbid payment by an agency that does not qualify as a "primary agency." For one thing,
as has been recognized for a century, a presumption is not conclusive. See Lincoln v. French, 105
U.S. 614, 617 (1881). For another, suggesting that primary agencies should pay salary supplements
does not necessarily imply that other agencies should not. Those taking a contrary view would
likely resort to the canon of expressio unius est exclusio alterius, the expression of one thing is
the exclusion of the other. But "[a]s [courts] have held repeatedly, the canon expressio unius est
exclusio alterius does not apply to every statutory listing or grouping; it has force only when the
items expressed are members of an associated group or series, justifying the inference that items
not mentioned were excluded by deliberate choice, not inadvertence." Barnhart v. Peabody Coal
Co., 537 U.S. 149, 168 (2003) (cleaned up); accord State v. Beaver, 248 W. Va. 177, 194, 887 S.E.2d
610, 627 (2022). Here, those key circumstances are absent, so the canon does not apply.
The fund's purpose again supports our conclusion. See Appleby, 213 W. Va. at 510, 583
S.E.2d at 807. It seems appropriate that individual agencies would retain discretion to decide
whether to supplement an individual's salary who has already received a salary supplement from
another agency. Indeed, if the goal is retention, then the case for providing an additional payment
might be stronger, as the employee might otherwise be inclined to leave the non-paying agency
for the paying one. Ultimately, whether the employee is paid by one, two, or more agencies, the
Legislature's objective to "increas[e] [the] salaries of emergency medical service workers" is
fulfilled. W. Va. Code § 16-4C-25(a).
Thus, an agency may pay a salary supplement to an employee who completes at least ten
911 calls for that agency even if the employee is also employed by another agency in a different
county.
Sincerely,
Patrick Morrisey
West Virginia Attorney General
Michael R. Williams
Solicitor General
Caleb A. Seckman
Assistant Solicitor General