85% State Share
Where do these monies live?
The Opioid Abatement Trust Fund holds 85% of New Hampshire’s opioid settlement funds.[1]
What can this share be spent on?
In general, and with limited exceptions,[2] Fund monies must only be disbursed to one of the 19 project criteria listed in state law.[3]
Three of these criteria are reimbursement uses: for outpatient and residential treatment services for OUD and co-occurring disorders (inclusive of medications and “abstinence-based treatment,” in addition to treatment for people involved in the criminal legal system);[4] for law enforcement and emergency response services;[5] and for naloxone.[6]
Other approved uses in state law include supports for mobile services, “withdrawal management,”[7] access to housing, transportation to treatment and other services, employment training, centralized call centers to connect people to supports, improved oversight of methadone treatment programs, scholarships for health providers to work in underserved areas, efforts to prevent over-prescribing, improvements to the prescription drug monitoring program, education for law enforcement on fentanyl, evidence-based “and/or evidence-informed” prevention, school programs, secondary and tertiary prevention “through harm reduction programs,” and addressing the pain management needs of chronic pain patients and/or those in hospital or palliative care.[8]
Disbursements from the Fund must be made “in alignment with relevant state plans.”[9] The Opioid Abatement Advisory Commission’s Guiding Strategies for the Use of Opioid Abatement Funds contains a non-exhaustive list of strategies that are “in alignment with [state law] … , NH’s SUD Action Plan[,] and the 10-Yr Mental Health Plan.”[10] The Commission's document refers to Exhibit E of the national settlements — which includes prevention, harm reduction, treatment, recovery, and other strategies — as providing a “further description of opioid remediation uses.”[11]
Who ultimately decides how to spend this share (and how)?
Opioid Abatement Advisory Commission decides (with approval from the Governor and New Hampshire Executive Council). The Opioid Abatement Advisory Commission makes decisions on grant funding and other disbursements from this share in coordination with the Governor’s Commission on Alcohol & Other Drugs.[12] The Advisory Commission’s disbursements must be “in alignment with relevant state plans.”[13]
The Governor and the Executive Council must approve “all disbursements or grants.”[14] The Department of Health and Human Services (DHHS) is responsible for distributing the monies.[15]
Both governmental entities and non-profit organizations are eligible to receive awards from the Fund.[16] The Commission is required to advise DHHS on the Fund’s administration and approve the agency’s selection of eligible grant recipients.[17] The Commission and the DHHS Commissioner are both empowered to develop priorities and goals for the Fund’s expenditures and recommend state and local policy changes.[18]
Is this share attached to an explicit bar against supplantation?
Generally no, supplantation is not prohibited. Like most states, New Hampshire does not prohibit supplantation uses of its opioid settlement funds. This means that the 85% state share may be spent in ways that replace (or “supplant”) — rather than supplement — existing resources. However, state law prohibits certain reimbursement uses of funds from the 85% state share where the government entity would have otherwise been reimbursed for such services.[19] This provision effectively operates as a bar against “double-dipping” on funding sources and may limit some, but not most, forms of supplantation.[20]
Can I see how this share has been spent?
Eventually (public reporting required). Expenditures for this share will likely be published on the Opioid Abatement Advisory Commission’s website. State law requires the Commission to publish information about its “funding awards” and “reports of funding by recipients” online.[21]
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
N.H. Rev. Stat. Ann. Sec. 126-A:84(II)(a)-(b). But see 70% regional, 30% non-regional apportionments of Mallinckrodt trust distributions. NOAT II: Notice of Abatement Distribution New Hampshire (January 13, 2023). ↑
See, e.g., Attorney General Reaches $40.5 Million Settlement with Johnson & Johnson to Settle Opioid Claims. New Hampshire Attorney General News Release. September 1, 2022. Accessed August 9, 2024. (“Under the terms of the settlement agreement, Johnson & Johnson will make a single payment of $39.605 million to the State and pay approximately $900,000 in attorneys’ fees to counsel for the counties, cities and towns that filed opioid lawsuits against Johnson & Johnson prior to September 1, 2019”). See also N.H. Rev. Stat. Ann. Sec. 126-A:85(VII) (“The department of health and human services shall provide administrative support to the advisory commission”). ↑
N.H. Rev. Stat. Ann. Secs. 126-A:83(I) (“All proceeds received by the state from all consumer protection settlements or judgments against opioid manufacturers or distributors shall be deposited in accordance with RSA 7:6-f. … The state treasurer shall disburse funds from the trust fund solely for the purposes and in the manner set forth in RSA 126-A:84”), 126-A:84(I) (“The commissioner shall draw from the opioid abatement trust fund for qualifying opioid abatement projects under RSA 126-A:86, I(b)”), and 126-A:86(I)(b)(1)-(17) (listing acceptable project criteria). ↑
N.H. Rev. Stat. Ann. Sec. 126-A:86(I)(b)(1). ↑
N.H. Rev. Stat. Ann. Sec. 126-A:86(I)(b)(2). ↑
N.H. Rev. Stat. Ann. Sec. 126-A:86(I)(b)(5) (“FDA-approved opioid reversal agents”). ↑
N.H. Rev. Stat. Ann. Sec.126-A:86(I)(b)(3)-(4), (6)-(19). The approved criteria regarding pain management were added by legislation enacted in 2024. See 2023 NH HB 1318. ↑
N.H. Rev. Stat. Sec. 126-A:86(I). ↑
Guiding Strategies for the Use of Opioid Abatement Funds. Opioid Abatement Advisory Commission (Commission). February 2024. Accessed August 9, 2024. (“Use of these strategies should be determined within the broader context of statewide plans, community feedback, current efforts by non-governmental and governmental entities and anticipated funding reductions (State Opioid Response, COVID relief, etc). This is not an exhaustive list of applicable strategies, but rather, a guiding document to help establish a road map for funding, in alignment with NH statute and opioid settlement agreements (see Exhibit E for further description of opioid remediation uses”). ↑
Guiding Strategies for the Use of Opioid Abatement Funds. Opioid Abatement Advisory Commission (Commission). February 2024. Accessed September 1, 2024. (“[The Guiding Strategies] is not an exhaustive list of applicable strategies, but rather, a guiding document to help establish a road map for funding, in alignment with NH statute and opioid settlement agreements (see Exhibit E for further description of opioid remediation uses)”). ↑
N.H. Rev. Stat. Secs. 126-A:85(I) (“There is hereby established the New Hampshire opioid abatement advisory commission, which shall consult with and advise the commissioner of the department of health and human services relative to the proper administration and management of the opioid abatement trust fund, as established in RSA 126-A:83, and which shall approve all qualifying grants, loans, and matching funds from that fund under RSA 126-A:86, I(b)”) (emphasis added); N.H. Rev. Stat. Sec. 126-A:86(I)(b) (“The opioid abatement advisory commission in coordination with the governor's commission on alcohol and other drugs, and in alignment with relevant state plans, shall … [a]ward grants, revolving loan funds, and matching funds to projects from the opioid abatement trust fund under RSA 126-A:83, I, in a manner consistent with the following criteria…”). ↑
N.H. Rev. Stat. Sec. 126-A:86(I). The Commission’s Guiding Strategies for the Use of Opioid Abatement Funds document contains a non-exhaustive list of applicable strategies that are “in alignment with RSA 126-A:86 … , NH’s SUD Action Plan[,] and the 10-Yr Mental Health Plan ↑
N.H. Rev. Stat. Sec. 126-A:86(I)(b) (“All disbursements or grants shall require approval of the governor and executive council”). The Executive Council works together with the governor to manage state affairs, with a particular emphasis on overseeing government spending. Councilors are directly elected by the people in their districts. See About Us. State of New Hampshire Executive Council. Accessed August 9, 2024. ↑
N.H. Rev. Stat. Ann. 126-A:84(II)(b) and (III). (“All remaining funds [after 15% for counties and political subdivisions] shall be deposited into the opioid abatement trust fund as established by RSA 126-A:83, I to be distributed by the commissioner of the department of health and human services, with approval of the opioid abatement advisory commission” and “[t]he commissioner of the department of health and human services shall continue to make distributions from the trust fund … for as long as defendants in the opioid litigation make payments to the state or until such time that the funds in the opioid abatement trust fund are exhausted”). ↑
N.H. Rev. Stat. Sec. 126-A:84(II)(b) (“Funds may be awarded to a qualifying governmental entity or program for an approved use under RSA 126-A:86, I(b)”). ↑
N.H. Rev. Stat. Sec. 126-A:86(I)(a)-(b) (requiring Commission to advise DHHS, approve eligible Fund recipients, and award grants) and 126-A:85(I) (“commission … shall consult with and advise the commissioner of the department of health and human services relative to the proper administration and management of the opioid abatement trust fund, as established in RSA 126-A:83, and which shall approve all qualifying grants, loans, and matching funds from that fund under RSA 126-A:86, I(b)”). ↑
N.H. Rev. Stat. Sec. 126-A:86(II) (“The commission or the commissioner of the department of health and human services may identify additional responsibilities including reporting on projects and programs related to addressing the opioid epidemic, developing priorities, goals and recommendations for spending on such projects and programs, working with state agencies or outside entities to develop measures for projects and programs that address substance use disorders, making recommendations for policy changes on a state and local level, including statutory law and administrative agency regulations”). ↑
N.H. Rev. Stat. Ann. Sec. 126-A:86(I)(b)(1) (imposing such limitations on reimbursement for “costs related to outpatient and residential opioid use disorder (OUD) and any co-occurring substance use disorder or mental health (SUD/MH) treatment services”). But see N.H. Rev. Stat. Ann. Sec. 126-A:86(I)(b)(2) (not imposing such limitations on reimbursements of costs “for emergency response services related to OUD and any co-occurring SUD/MH issues provided by law enforcement and first responder”); (I)(b)(5) (no such limitations on reimbursements “for emergency response services related to OUD and any co-occurring SUD/MH issues provided by law enforcement and first responder”). ↑
For example, the law would prohibit the use of funds from the 85% state share to reimburse the state or local governments for OUD treatment expenses which will be reimbursed by Medicaid but would not prohibit a local government from seeking reimbursement for expenses it otherwise paid for with general revenue funds. See, e.g., Addendum #3 to RGA-2023-DBH-03-OPIOI “Opioid Abatement Programs,” Sec. 1.2.4. New Hampshire Department of Health and Human Services. June 5, 2023. Accessed June 28, 2024 (“Applicants must only request reimbursement for costs not reimbursable by other third-party funding sources and must not request reimbursement for costs that have already been reimbursed by federal, state, or other third-party funding sources. Costs originally paid through county or municipal general funds may be submitted for reimbursement.”) ↑
N.H. Rev. Stat. Sec. 126-A:86(III) (“The [Opioid Abatement Advisory] [C]ommission shall create and maintain a website on which it shall publish its minutes, attendance rolls and votes, including records of all votes on funding requests, funding awards, and reports of funding by recipients”). See also N.H. Rev. Stat. Sec. 126-A:84(IV) (“On or before September 1, 2020, each county, city, town or program that receives funds under paragraph II shall annually provide to the department of health and human services and the opioid abatement advisory commission a detailed account of all monies spent on approved uses, including, but limited to, an analysis and evaluation of the projects and programs it has funded”) (emphasis added). Note that paragraph II encompasses both the 85% state share and the 15% local share. ↑
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