15% State Share
Where do these monies live?
The state’s 15% share is deposited into the State of Montana Fund,[1] then allocated 50%-50% between the Department of Public Health and Human Services and the Department of Justice.[2] This share may be redirected to support the Advisory Committee’s statewide programming.[3]
What can this share be spent on?
With limited exceptions,[4] this share must be spent for “Opioid Remediation,”[5] which Montana explicitly defines to mean only forward-looking expenditures as described in the national settlement agreement’s (non-exhaustive) Exhibit E.[6] Exhibit E includes prevention, harm reduction, treatment, recovery, and other strategies.
Montana also defines remediation efforts in the state to specifically include opioid and polysubstance use disorder treatment and prevention strategies; substance use avoidance education; efforts to “decrease the oversupply of licit and illicit opioids, including Fentanyl”; recovery support; and “support for law enforcements (sic) addressing the impact of opioid-related substance abuse in the communities they serve, including misuse or illicit use of heroin and/or Fentanyl.”[7]
Who ultimately decides how to spend this share (and how)?
Montana Department of Public Health and Human Services and Montana Department of Justice decide. Decisionmakers for the Montana Department of Public Health and Human Services (DPHHS) and Montana Department of Justice (DOJ) will ultimately decide how to spend their monies on approved uses.[8] Both departments are required to share planned programs and activities with each other at least quarterly and communicate any needs for technical assistance,[9] and DPHHS must provide subject matter expertise on approved uses at DOJ’s request.[10] Each are encouraged to collaborate on programming.[11]
Is this share attached to an explicit bar against supplantation?
No, supplantation is discouraged but not prohibited. Montana’s Memorandum of Understanding (MOU) provides that “the State of Montana and its Local Governments [are] enter[ing] into this MOU … to develop a fair and transparent process for making decisions based on medical and scientific evidence concerning where and how to spend the funds from the Settlement Agreements to effectuate forward-looking abatement strategies and to supplement rather than replace existing spending”.[12] The absence of explicit “shall” or “shall not” (or equivalent) language renders this provision a strong discouragement against rather than an explicit prohibition of expenditures that replace (or “supplant”) — rather than supplement — existing resources.
Can I see how this share has been spent?
No (no public reporting required, only intrastate). Opioid settlement expenditures are not officially published in a centralized location for this share.[13]
Visit OpioidSettlementTracker.com’s Expenditure Report Tracker for an updated collection of states’ and localities’ available expenditure reports.
What else should I know?
Not applicable.
Citations
Montana Distributors’ and Janssen Opioids Settlement Memorandum of Understanding (MOU) D.3(a) (“Fifteen percent (15%) shall be allocated to directly to the State of Montana Fund”) and MOU D.2 (specifies that all three allocations are “direct-deposited”). ↑
Montana Department of Public Health and Human Services/Montana Department of Justice Memorandum of Understanding: Allocation and Use of Settlement Funds (DPHHS/DOJ MOU) Sec. 2.1 (“The Settlement Funds allocated to the State of Montana Fund will be evenly divided between DOJ and DPHHS. such that 50% shall be allocated to DPHHS and 50% to DOJ”). ↑
MOU D.12 (“Funds from the Abatement Trust may also be expended by the Trust for statewide programs, innovation, research, and education,” and “[e]xpenditures for these purposes may … be funded by the Trust with funds received from … the State of Montana’s share (as directed by the Attorney General in consultation with DPHHS)”). ↑
“MOU E.6 and MOU Amendment I (“The Montana Attorney Fee Back-Stop Fund shall be funded by 5.5% of the total settlement funds paid to the State of Montana”). MOU E.7-9 (describing permissible uses of 5.5% back-stop fund only in instances of a “shortfall,” with any unused amounts reallocated according to the original statewide allocation percentages described in Section D of the MOU). See also MOU A.7 (“[q]ualifying [approved use] expenditures may include reasonably related administrative expenses”) ↑
MOU D.4 (“The Settlement Funds allocated to the State of Montana Fund shall be used by the State for Approved Purposes”). ↑
MOU A.7 (“Exhibit E in the Settlements Agreements provides a non-exhaustive list of expenditures that qualify as Opioid Remediation,” i.e., the “care, treatment, and other forward-looking programs and expenditures for Approved Purposes”) and MOU A.8 (defining “Approved Purposes” to mean “forward-looking strategies, programming, and services to abate the opioid epidemic as identified by the terms of the Settlement Agreements”). ↑
MOU A.7 (defining “opioid remediation”). ↑
DPHHS/DOJ MOU Sec. 2.2 (“Each Department will determine how to best use its portion of the funds for Approved Uses, also referred to as Approved Purposes”). See also MOU D.4 (describing use the funds from this share as “determined by a separate committee made up of representatives from the Attorney General and the Montana Department of Health and Human Services”). This provision predates the MOU between the Department of Public Health and Human Services and the Department of Justice. ↑
DPHHS/DOJ MOU Sec. 2.3 (“as desired”). ↑
Importantly, this prohibition appears in recital (a) of Montana’s opioid settlement memorandum of understanding rather than in an operative provision. Montana Distributors’ and Janssen Opioids Settlement Memorandum of Understanding. November 26, 2021 (emphasis added). ↑
For the intrastate reporting requirement, see Montana Department of Public Health and Human Services/Montana Department of Justice Memorandum of Understanding: Allocation and Use of Settlement Funds (DPHHS/DOJ MOU) Sec. 2.4 ("As a minimum, each Department will communicate with the other as follows: Once per quarter, each Department will provide to the other, in writing, a summary of any programs or activities funded in such quarter, any programs in the process of being funded, and any programs being considering for funding. To the extent not encompassed in the above, each Department will disclose to the other the planned funding of any program or activity as expediently as possible after receiving a funding request"). ↑
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