50% Maine Recovery Fund Share
Where do these monies live?
The Maine Recovery Fund (“Recovery Fund”) holds 50% of the state’s opioid settlement funds.[1]
What can this share be spent on?
With limited exceptions,[2] this share must be spent on the uses described in the national settlement agreement’s (non-exhaustive) Exhibit E,[3] which includes prevention, harm reduction, treatment, recovery, and other strategies. Additionally, 3% of the Recovery Fund is reserved for Maine’s school districts’ special education uses.[4]
Who ultimately decides how to spend this share (and how)?
Maine Recovery Council decides. The Maine Recovery Council ultimately directs disbursements of the Recovery Fund share and ensures that they are spent on approved uses.[5] The Recovery Council is required to facilitate collaboration among the state, local governments, regional councils, and other groups to share overdose data and abatement best practices.[6]
The Recovery Council, which has adopted its own bylaws,[7] otherwise has “broad discretion” around how to spend funds.[8] The Recovery Council has established several committees, including a “Program/Grants Committee” to recommend grantmaking activities and monitor the Recovery Council’s programming.[9]
The Recovery Council operates by consensus, and at least 3/5 of Recovery Council members must approve of any decision.[10]
Are supplantation uses prohibited for this share?
Yes, supplantation is prohibited. The Maine Recovery Council’s bylaws provide that “the Council’s distribution of funds shall be structured to supplement, and not supplant, directly or indirectly, the activities of federal, state, and local governments, private foundations, public charities, or other entities.”[11] This means that monies from the 50% Maine Recovery Fund Share must be spent in ways that supplement — rather than replace (or “supplant”) — existing resources.
Additionally, Maine’s 2023 settlement MOU, which applies to settlements reached after those with Distributors and Janssen (Johnson & Johnson), “strongly encourage[s]” the state, localities, and the Maine Recovery Council to use settlement funds “solely to supplement and strengthen, rather than supplant, resources for … approved uses.”[12]
Can I see how this share has been spent?
Yes (public reporting required). You can view the Maine Attorney General’s Recovery Fund reports here. The Recovery Council is required to “develop a centralized public dashboard or other repository for publication of [Recovery Fund] expenditure data.”[13] The Recovery Council appears to have satisfied this requirement by posting the state Attorney General’s required intrastate reporting of Recovery Fund expenditures.[14]
Visit OpioidSettlementTracker.com’s Expenditure Report Tracker for an updated collection of states’ and localities’ available expenditure reports.
What else should I know?
Maine prepared for its “second wave” of settlements with Teva, Allergan, CVS, Walgreens, and Walmart by developing a separate memorandum of understanding (MOU).[15] Maine’s 2023 MOU includes new provisions (e.g., discouraging supplantation uses of funds from subsequent opioid settlements) and alters certain provisions of the original MOU (e.g., substituting the Maine Recovery Council for the legislature in several passages).[16]
Citations
Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Secs. II.C(3), IV.A; Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Secs. II.C(3), IV.A; Me. Rev. Stat. tit. 5, Sec. 203-B (“the Attorney General may work with the Treasurer of State to deposit identified revenue or money received as a result of [the opioid litigation] into the Maine Recovery Fund for spending on approved uses as directed by the Maine Recovery Council”). ↑
Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Sec. III (“The Council may use funds to hire additional administration support if necessary”); Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. III (“The Council may use funds to hire additional administration support if necessary”). ↑
Me. Rev. Stat. tit. 5, Sec. 203-B (requiring Recovery Funds to be spent on Approved Uses as defined by the MOU); Me. Rev. Stat. tit. 5, Secs. 203-C(1)(A), (2) (requiring the Recovery Council to direct Recovery Funds to approved uses as defined by the MOU); Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Secs. I.A, II.B (requiring “[a]ll Opioid Funds, regardless of allocation,” to be spent on “Approved Uses,” and defining “Approved Uses” to mean the national settlement agreements’ Exhibit E); Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Secs. I.A, II.B (same). See also Distributor Settlement Agreement, Sec. I.SS (“Exhibit E provides a non-exhaustive list of expenditures that qualify as being paid for Opioid Remediation. Qualifying expenditures may include reasonable related administrative expenses”). ↑
Me. Rev. Stat. tit. 5, Sec. 203-C(2); Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Sec. III (see “Duties”) (“primarily responsible for ensuring that the distribution of Recovery Funds complies with the terms of the MOU and the [School MOU]”); Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. III (same). See also Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Sec. III, Governance(b) (“The Recovery Council is responsible for accounting of all Recovery Funds and for releasing Recovery Funds”); Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. III, Governance(b) (same). ↑
See Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Sec. III (see “Governance”); Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. III (see “Governance”). The Council otherwise has no rulemaking authority. Id. See generally Bylaws of the Maine Recovery Council. January 31, 2024. Accessed August 7, 2024. ↑
Attorney General Aaron Frey Announces Agreement for Distribution of Opioid Settlement Funds. Maine Attorney General press release. January 28, 2022. Accessed August 7, 2024 (“The Recovery Council has broad discretion on how to spend the funds on opioid abatement purposes but must allocate 3 percent of the funds to address abatement in special education programs”). ↑
Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Sec. III (see “Decision Making”); Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. III (see “Decision Making”); Bylaws of the Maine Recovery Council, Sec. 4.7 (January 31, 2024). ↑
Bylaws of the Maine Recovery Council, Sec. 2.1 (January 31, 2024). See also Maine School Administrative Units’ Inclusion in Maine’s Recovery Fund (2022) (“In all cases, grant applications must demonstrate that funds will: (a) Supplement, not supplant, other source(s) of funding, and, (b) Be used to extend and/or expand existing services, or provide new services above and beyond services already provided”); Maine School Administrative Units’ Inclusion in Maine’s Recovery Fund (2023) (same).. ↑
Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. II(B) (the 2022 MOU and its amendment do not contain this language on supplantation). The language in Maine’s 2023 MOU is insufficient to qualify independently as an explicit bar on supplantation uses. However, the language in the 2022 and 2023 agreements regarding Maine School Administrative Units’ Inclusion in Maine’s Recovery Fund do establish such an explicit bar. ↑
Amendment to Maine State-Subdivision Memorandum of Understanding and Agreement Regarding Use of Settlement Funds, Sec. III (see “Transparency”); Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. III (see “Transparency”); Bylaws of the Maine Recovery Council, Sec. 2.4 (January 31, 2024). ↑
Me. Rev. Stat. tit. 5, Sec. 203-C(5) (“The Attorney General shall, by February 1st of each year, submit a report to the joint standing committee of the Legislature having jurisdiction over health and human services matters describing the activities of the council and the status of the Maine Recovery Fund and listing information on disbursements from the fund and information related to the outcomes of funded activities.”) ↑
See FAQs. Office of the Maine Attorney General website. Accessed August 7, 2024 (“The first MOU from 2022 allocates settlement funds from the Distributors and J&J settlements, as well as any funds received from the Mallinkrodt and Purdue bankruptcies. The second MOU covers settlements finalized in 2023 (Teva, Allergan, CVS Walgreens and Walmart)”). ↑
See, e.g., Memorandum of Understanding and Agreement Regarding Use of Settlement Funds-2023, Sec. II.B. The 2023 MOU otherwise maintains the 50%/30%/20% allocation among the Recovery Fund, subdivisions, and state Attorney General, including the 3% set-aside of Recovery Fund monies for Maine’s school districts. ↑
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