100% Prescription Opioid Settlement Fund
Where do these monies live?
The Prescription Opioid Settlement Fund (Settlement Fund) holds Delaware’s state and local shares of opioid settlement funds.[1]
What can this share be spent on?
With limited exceptions,[2] Settlement Fund monies must be spent to remediate the harm caused by opioids, reduce opioid-related harms, and for other purposes consistent with the national settlement agreements’ (non-exhaustive) Exhibit E,[3] which includes prevention, harm reduction, treatment, recovery, and other strategies.
The Prescription Opioid Settlement Distribution Commission’s “Delaware Grant Award Priorities 2023,” which are informed by “Delaware’s identified needs,” highlight a subset of Exhibit E’s many interventions.
Who ultimately decides how to spend this share (and how)?
Delaware Behavioral Health Consortium decides (according to Prescription Opioid Settlement Distribution Commission recommendations). The Behavioral Health Consortium (Consortium) ultimately decides specific Settlement Fund expenditures for this share based on recommendations from the Prescription Opioid Settlement Distribution Commission (Commission),[4] a subcommittee of the Consortium chaired by the governor and the attorney general.[5] The Consortium uses the Commission’s recommendations as it awards grants, directs the Secretary of the Delaware Department of Health and Social Services to enter into contracts, and distributes funds to agencies and localities “to be administered as directed by the Commission.”[6]
In creating its recommendations, the Commission must review recommendations from the state’s Behavioral Health Consortium, Addiction Action Committee, Overdose System of Care Committee, and Drug Overdose Fatality Review Committee.[7] The Commission’s Local Government Committee must also recommend Settlement Fund expenditures to the Commission,[8] and the Commission must notify the Local Government Committee if it chooses not to adopt its recommendations.[9]
Are supplantation uses prohibited for this share?
Yes, supplantation is prohibited. Delaware state law explicitly states that money from the Prescription Opioid Settlement Fund “may not be used to supplant existing state or local government funding.”[10] This means that Delaware’s opioid settlement funds may only be spent in ways that supplement — rather than replace (or “supplant”) — existing state or local government resources.
Can I see how this share has been spent?
Yes (public reporting required). Delaware has established a Prescription Opioid Settlement tracker with information on settlement fund distributions and recipients. You can also view grant awardees on the Prescription Opioid Settlement Distribution Commission’s website (scroll to “Prescription Opioid Settlement Distribution Grant Awards”). The Commission is required to post an annual report that includes detailed expenditure information.[11]
Visit OpioidSettlementTracker.com’s Expenditure Report Tracker for an updated collection of states’ and localities’ available expenditure reports.
What else should I know?
In June 2024, after the State Auditor uncovered evidence of alleged grantee fraud, Delaware Attorney General (AG) Kathleen Jennings wrote to the state’s Department of Justice (DOJ) to express “serious concerns about the stewardship of Delaware’s prescription opioid settlement funds.”[12] Though the AG “strongly recommend[ed] an immediate and complete freeze on new grants by the Commission,”[13] the Behavioral Health Consortium voted to approve $2 million in new grants in the weeks following the letter.[14] Since then, the State Auditor’s Office has expressed interest in pursuing audits of additional Commission grantees,[15] and Delaware’s Department of Justice has asked the Commission to turn over certain grant application materials, asserting the Attorney General’s right “[a]s co-chair of the POSDC … to access the books and records of the Commission.”[16]
Citations
Del. Code tit. 16, Sec. 4808B(b) (“The Settlement Fund shall hold all moneys collected by the State and its subdivisions as a result of the terms of statewide opioid settlement agreements, judgments, or other recoveries in connection with a defendant’s actual or alleged liability for contributing to the opioid crisis in Delaware that must be used for purposes of remediating or abating the opioid crisis in Delaware.”). See also Remediating Opioids Across Delaware through State-Municipal Abatement Partnership (“ROADS MAP”) Agreement, Secs. 3(a)-(c). ↑
Del. Code tit. 16, Sec. 4808B(c)(1) (“Annually, $300,000 or 5% of the total annually deposited into the Settlement Fund, whichever is greater, may be used for administering this chapter and §§ 5196 through 5196B of Title 16”); Remediating Opioids Across Delaware through State-Municipal Abatement Partnership (“ROADS MAP”) Agreement, preamble (“it is the intent of the State and those litigating Eligible Subdivisions that their respective outside counsel seek payment of appropriate attorneys’ fees directly from the State Outside Counsel Fee Fund and the Attorney Fee Fund, as appropriate, each as established pursuant to the relevant Exhibits of the Settlement Agreements”). ↑
Del. Code tit. 16, Sec. 4808B(d) (“Money in the Settlement Fund must be used for activities in 1 or more of the following categories: (1) For services that remediate the harm caused by opioids[,] (2) To reduce harm caused by opioids[,] (3) Consistent with the terms of the settlement, judgment, or other source of the moneys”). See also Remediating Opioids Across Delaware through State-Municipal Abatement Partnership (“ROADS MAP”) Agreement, preamble (identifying the national settlement agreements’ “Exhibit E”). ↑
Del. Code tit. 16, Secs. 4808B(g), 5195(b)(2), 5196A(a), 5196B(a). Importantly, if the Consortium chooses not to adopt a Commission recommendation, it must provide the Commission a written explanation and allow the Commission to revise its recommendation. Del. Code tit. 16, Sec. 5196B(a)(2). Though the Consortium is unable to distribute Settlement Fund monies without a “conforming recommendation” from the Commission, Del. Code tit. 16, Sec. 5196B(a)(3), money distributed by the Consortium will be disbursed from the Settlement Fund by the state’s Treasurer only after final authorization by the Consortium’s chair, the Director of the Office of Management and Budget, the Controller General, and co-chairs of the Joint Finance Committee. Del. Code tit. 16, Sec. 5196B(b)(1)-(4). ↑
Del. Code tit. 16, Secs. 5195(a)(2), 5196A(c). See also Prescription Opioid Settlement Distribution Commission (POSDC) Co-Chairs and Members. Office of the Lieutenant Governor Bethany Hall-Long’s website. Accessed August 7, 2024 (explaining that the Commission is currently co-chaired by Delaware’s Lt. Governor Bethany Hall-Long and Attorney General Kathleen Jennings). ↑
Del. Code tit. 16, Sec. 5196B(a)(1). ↑
Del. Code tit. 16 Sec. 5196A(g)(1)-(4). The Commission may also create additional committees. See Del. Code tit. 16, Sec. 5196A(f). See also Resolution No. 2023-1 Establishing Standing Committees and Initial Charters. Prescription Opioid Settlement Distribution Commission. March 27, 2023 (recognizing formation of Governance, Budget and Reporting, Public Outreach and Community Input, Behavioral Health Resources Committees). ↑
Del. Code tit. 16, Sec. 5196A(e). See also Resolution No. 2022-1 Establishing the Local Government Committee and Initial Charter. Prescription Opioid Settlement Distribution Commission. November 14, 2022 (recognizing formation of Local Government Committee and its “statutory authority to make recommendations to the Commission regarding the distribution of money from the Impact Fund and the Settlement Fund”). ↑
Del. Code tit. 16, Sec. 5196A(e)(3) (“If the Commission does not adopt the recommendations of the Local Government Committee, the Commission shall provide a written explanation of the decision and provide an opportunity for the Local Government Committee to respond”). ↑
Del. Code Ann. tit. 16 Sec. 4808B(e). ↑
Del. Code Ann. tit. 16, Sec. 5195(c)(2) (the report must include (1) “[b]y fund, the contracts or grants awarded by the Consortium, including the identity of each recipient, the amount of the award, the subject matter or program involved, and the primary terms and conditions of the award or contract,” and (2) “[b]y fund, the amounts disbursed in respect of approved contracts, grants and other authorized expenditures and administrative expenses, including amounts disbursed to qualifying local governments for local government block grants”). ↑
June 28, 2024 letter from Delaware Attorney General Kathleen Jennings to the Prescription Opioid Settlement Distribution Commission. Accessed August 7, 2024. See also Karl Baker. Following fraud reports, Delaware AG calls for pause on opioid settlement grants. Spotlight Delaware. July 2, 2024. Accessed August 7, 2024. ↑
June 28, 2024 letter from Delaware Attorney General Kathleen Jennings to the Prescription Opioid Settlement Distribution Commission. Accessed August 7, 2024. See also Karl Baker. Following fraud reports, Delaware AG calls for pause on opioid settlement grants. Spotlight Delaware. July 2, 2024. Accessed August 7, 2024. ↑
Delaware opioid officials blast the AG, then award $2 million in grants. Spotlight Delaware. July 18, 2024. Accessed August 7, 2024. ↑
Sarah Petrowich. Eleven more opioid grant recipients to be audited, reports expected this fall. Delaware Public Media. July 30, 2024. Accessed September 1, 2024. ↑
Nick Stonesifer. AG office demands monitoring reports for $250M opioid fund. Spotlight Delaware. August 28, 2024. Accessed September 1, 2024. ↑
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