Opioid Abatement Board Share
Where do these monies live?
The Oklahoma Opioid Abatement Revolving Fund (Revolving Fund) contains the Opioid Abatement Board-controlled share of Oklahoma’s opioid litigation proceeds.[1] Revolving Fund monies are disbursed as grants by the Abatement Board to political subdivisions,[2] which are defined to include municipalities, school districts, counties, and public trusts (municipal or county hospitals and public trusts for certain medical teaching hospitals).[3]
*Oklahoma’s MOU, which applies to the state’s largest settlement (with Distributors McKesson, AmerisourceBergen, and Cardinal Health), requires a 75%-25% split between the state and litigating localities,[4] with those counties, municipalities, and towns receiving their shares directly.[5] The legislature’s 2024 allocations of the state’s greater Opioid Lawsuit Settlement Fund (Settlement Fund) appropriated about $25.8 million to the Revolving Fund, 22.5% of which was earmarked for distribution to non-litigating subdivisions.[6]
What can this share be spent on?
With limited exceptions,[7] monies in this share must be spent on “approved purposes,”[8] which the state defines to mean the over 20 types of strategies described in state law.[9] This state-specific list includes some of the categories in the national settlement agreement’s (non-exhaustive) Exhibit E, Schedule B (“Approved Uses”), such as prevention, treatment, and targeted efforts to address the needs of those involved in the criminal legal system.[10] However, Oklahoma’s state-specific list also mentions decreasing the oversupply of licit and illicit opioids twice,[11] notably limits harm reduction strategies to naloxone distribution,[12] and includes a catch-all category of allowable abatement expenditures “identified by the Oklahoma Abatement Board as consistent with the purpose of [this] Act.”[13]
Though the state defines approved purposes to mean “evidence-based, forward-looking” strategies and programs,[14] two of the allowable uses in state law permit reimbursement uses of funds (law enforcement and attorneys’ fees).[15] The Abatement Board has provided guidance that states that law enforcement interdiction activities — including “patrol, investigation, and arrest activities” — are unauthorized uses of funds from this share.[16]
Who ultimately decides how to spend this share (and how)?
Opioid Abatement Board decides. The Oklahoma Opioid Abatement Board has the ultimate power to disburse monies from this share to political subdivisions,[17] which are defined to include municipalities, school districts, counties, and public trusts (municipal or county hospitals and public trusts for certain medical teaching hospitals).[18] The Abatement Board is empowered to develop grant disbursement, application, and evaluation processes to distribute monies from the Revolving Fund.[19] State law also requires the Abatement Board to oversee grants to ensure that they are used on approved purposes.[20]
The Abatement Board’s rules describe factors it must consider when making its awards, including weighted criteria that account for local impact (rates of opioid use disorder (OUD), overdose deaths, and opioids distributed),[21] as well as a tiered scheme for maximum grant award amounts based on population size (for example, the maximum funding award for a county with a population between 25,001 and 75,000 is $150,000).[22]
When submitting grant applications, participating political subdivisions must also submit a resolution, ordinance, abatement plan, or abatement budget to the Abatement Board.[23] Subdivisions may submit joint applications,[24] and each may contract and partner with nonprofit organizations to use their grant awards on approved purposes.[25]
Applications are scored according to the rubric in Appendix G of the Abatement Board’s rules, which considers factors such as the evidence base for a proposed project and whether the application aligns with community efforts.[26] The Abatement Board “may” review grant applications according to a process that includes an initial screening, peer review, and Board review and approval.[27]
Is this share attached to an explicit bar against supplantation?
Unclear. There is conflicting information about whether Oklahoma explicitly prohibits or explicitly permits supplantation uses of funds from the Opioid Abatement Board share:
The Abatement Board’s rules explicitly prohibit the use of grant funds “for costs that will be reimbursed by another funding source” and provides that the Board may “require a grant recipient to demonstrate through accounting records that funds received from another funding source are not used for costs that will be reimbursed by the Board.”[28] This provision effectively operates as a bar against “double-dipping” on funding sources and may limit some, but not most, forms of supplantation.[29]
The 2024 Oklahoma Opioid Abatement Grant Application asks applicants to identify whether the proposed project is a “proposed supplement or enhancement to a project or effect already in place on or after January 1, 2015” and whether “grant funds requested [will] replace prior local or state funds for the requested project(s).”[30]
A draft version of the “FY2023 Opioid Abatement Grant Award Agreement” includes an explicit prohibition against supplantation uses of “[f]unds made available through the Oklahoma Opioid Abatement Revolving Fund[, which] shall be used to supplement, and not supplant, other federal, state, and local funds.”[31]
However, the Abatement Board’s “Abatement Grant Frequently Asked Questions” provides that supplantation uses are explicitly permitted for political subdivisions, “but only for abatement strategies, programming and services that started on or after January 1, 2015.”[32]
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. Grantees are required to submit quarterly reports to the Abatement Board to ensure funds are being used for approved uses,[33] but the Abatement Board’s rules do not require publication of these reports online.
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
OAC Sec. 75:50-1-2 (“‘Revolving Fund’ means the Oklahoma Opioid Abatement Revolving Fund established under 74 O.S. Sec. 30.6” and “‘Board’ means the Oklahoma Opioid Abatement Board established by 74 O.S. Sec. 30.7”) and OAC Sec. 75:50-3-4(b) (“The Board shall conduct disbursement of opioid grant awards from the Revolving Fund”). Okla. Stat. tit. 74, Sec. 30.6(A) (creating the "Oklahoma Opioid Abatement Revolving Fund” and providing that the fund will “be a continuing fund, not subject to fiscal year limitations, and shall consist of all opioid funds obtained through a settlement or judgment by the Attorney General on behalf of the State of Oklahoma related to opioid litigation involving pharmaceutical supply chain participants ”) and Sec. 30.6(A)(1)-(2) (Fund consists of monies designated for deposit into it or monies appropriated to it by the legislature). See, e.g., 2020 OK HB 4140, Sec. 1 (appropriating $10.22 million from the Opioid Lawsuit Settlement Fund [“Fund 383”] to the Oklahoma Opioid Abatement Revolving Fund) and 2024 OK HB 2924, Sec. 1 (appropriating $20 million from the Opioid Lawsuit Settlement Fund [“Fund 383”] to the Oklahoma Opioid Abatement Revolving Fund “to be … expended in accordance with law”). See also Opioid Abatement Webinar. Oklahoma Attorney General webinar slides. February 9, 2024. Accessed September 1, 2024 (describing “$23,000,000 in available grant award funding” in the “Abatement [ed. note: Revolving] Fund” from legislative appropriation and bankruptcy deals with Purdue and Mallinckrodt). ↑
OAC Sec. 75:50-3-4(b) (“The Board shall conduct disbursement of opioid grant awards from the Revolving Fund”) and Sec. 75:50-2-1(b) (“The Board shall conduct disbursement of [Distributors, retailers, Allergan] opioid grant awards from the Revolving Fund … for non-litigating political subdivisions”). See also Abatement Grant Frequently Asked Questions (FAQs), Q8-9. Oklahoma Opioid Abatement Board. January 2024. Accessed September 1, 2024 (stating that only “political subdivisions” as defined in Okla Stat. tit. 51, Sec. 152(11)(a)-(d) can apply for grants from the Revolving Fund). See, e.g., 2024 OK HB 2924, Sec. 2 (“There is hereby appropriated to the Oklahoma Opioid Abatement Revolving Fund … from any monies not otherwise appropriated from the Opioid Lawsuit Settlement Fund (Fund 383) … $5,790,651.00[,] to be distributed to nonlitigating subdivisions”). ↑
Okla. Stat. tit. 74, Sec. 30.5(9) (defining “political subdivisions” by reference to certain provisions of Section 152 of Title 51 of the Oklahoma Statutes) and Okla Stat. tit. 51, Sec. 152(11)(a)-(d) (defining “political subdivisions” to mean the above). See also OAC Sec 75:50-1-1 (defining “political subdivision” by reference to Okla. Stat. tit. 74, Sec. 30.5(9)). ↑
Memorandum of Understanding Regarding Certain Opioid Litigation Proceeds (Distributor MOU) B.1 (75% to “the State” and 25% to “Litigating Political Subdivisions”). The MOU defined “litigating political subdivision” to mean “counties, municipalities, or towns located within the geographical boundaries of the State listed on Exhibit A.” Distributor MOU A.5. Note that the state-local allocation varies across different settlements vary for Oklahoma. For settlements with retailers (encompassing CVS, Walgreens, and Walmart), the allocation is reversed with 25% going to the state and 75% going to litigating pollical subdivisions. See Retailer-State-Subdivision Agreement Sec. 1. All of the Teva settlement proceeds are allocated to the litigating political subdivisions. See Teva State-Subdivision Agreement Sec. 1. ↑
Distributor MOU B.4 (Exhibit B of the MOU provides a list of litigating political subdivisions and allocation percentages). ↑
2024 OK HB 2924, Secs. 1-2. See also Abatement Grant FAQs, Q4. Oklahoma Opioid Abatement Board. January 2024. Accessed September 1, 2024 (“The fund currently contains upwards of $27,000,000.00”) and Long Story Short: After slow start, opioid settlement money expected to flow to cities and counties. KGOU. December 27, 2023. Accessed September 1, 2024 (“The Opioid Abatement Board has about $27 million available for local communities, school districts and public trusts. The Legislature controls another $37.6 million sitting in the Opioid Lawsuit Settlement Fund. Additional funds are expected in coming years since some settlements call for multi-year payouts”). ↑
Okla. Stat. tit. 74, Sec. 30.5(1)(p) (defining “approved purposes” to include “reimburse[ment for] attorney fees and allowable expenses directly related to opioid litigation incurred as part of legal services agreements entered into before May 21, 2020”) and Sec. 30.7(C)(1) (describing the Board’s powers and duties to include the creation of “procedures for the disbursement of opioid grant awards to eligible participants, to be used … to fund and reimburse costs related to approved purposes”) (emphasis added); OAC 75:50-1-2 (defining “approved purposes” to include “uses of funds that are reasonable and necessary for the proper and efficient performance and administration of the grant project, and allocable to the grant project”); Distributor MOU B.7 (defining “Net Opioid Funds” to include settlement amounts “less any costs and expenses incurred by the State in the investigation, preparation, prosecution, mediation, arbitration, or settlement of the legal or equitable claims of the State against a Distributor, exclusive of attorneys’ fees), Distributor MOU D.1-2 (requiring Litigating Political Subdivisions’ and the state’s litigation costs related to settlements with Distributors to be deducted only from their respective shares), and Distributors Oklahoma Settlement Agreement Sec. V.B-C (describing state and participating litigating subdivisions’ attorneys’ fees and costs). See also Abatement Grant FAQs, Q25. Oklahoma Opioid Abatement Board. January 2024. Accessed September 1, 2024 (“Are indirect costs authorized as a part of a political subdivision’s implementation of a grant?” “Yes. Indirect costs are permitted but may not exceed 5% of the total grant award”). ↑
Okla. Stat. tit. 74, Sec. 30.8(B) (providing that after an initial disbursement of funds by the Board (which has already taken place), remaining monies in the Revolving Fund can be awarded as grants, “provided such awards shall only be utilized by eligible participants for approved purposes”); See generally Opioid Abatement Board regulations. 41 Ok. Reg. 801 (codified at OAC 75:50-1-1 through 75:50-3-7, in addition to Appendices) (requiring throughout that Revolving Fund grants be spent on “approved purposes,” defined to mean “the same as 74 O.S. Sec. 30.5(1)”). ↑
Okla. Stat. tit. 74, Sec. 30.5(1)(a)-(v) (defining “approved purposes” to mean 22 specified interventions). See also Distributor MOU B.3 (requiring that net opioid settlement funds after payment of attorneys' fees must “be used for the abatement of the Opioid crisis … consistent with the definition of … "approved purposes" as set forth in [Okla. Stat. tit. 74, Sec. 30.5]”). ↑
Okla. Stat. tit. 74, Sec. 30.5(1)(a),(b), and (i). ↑
Okla. Stat. tit. 74, Sec. 30.5(1)(d) and (m). ↑
Okla. Stat. tit. 74, Sec. 30.5(1)(n) (“[S]upport efforts to prevent or reduce overdose deaths or other opioid-related harms including through increased availability and distribution of naloxone and other drugs that treat overdoses for use by first responders, persons who have experienced an overdose event, families, schools, community-based service providers, social workers and other members of the public”). Compare with the national settlements’ Exhibit E, Schedule B, Sec. H, titled “Prevention Overdose Deaths and Other Harms (Harm Reduction)” and inclusive of strategies such as naloxone training and distribution, but also support for syringe service programs, drug checking, and mobile outreach. ↑
Okla. Stat. tit. 74, Sec. 30.5(1)(v). ↑
Okla. Stat. tit. 74, Sec. 30.5(1). ↑
Okla. Stat. tit. 74, Sec. 30.5(1)(u).
Okla. Stat. tit. 74, Sec. 30.5(1)(o)-(p). See also OAC Sec. 75:50-3-2(c) (“All approved purposes listed in an Applicant's Application and Form shall relate to strategies, programming and services occurred on or after January 1, 2015, to be eligible for opioid grant award funding”). ↑
See Abatement Grant FAQs, Q32. Oklahoma Opioid Abatement Board. January 2024. Accessed September 1, 2024 (“Can the funds be used for law enforcement interdiction efforts?” “No. Use of abatement funds for police salaries would have to be directly tied to abatement efforts (treatment, education/prevention, criminal justice involved, recovery, harm reduction) and not for interdiction (patrol, investigation, and arrest activities)”). ↑
OAC Secs. 75:50-3-4(b) (“The Board shall conduct disbursement of opioid grant awards from the Revolving Fund”), 75:50-3-3(a) (“The amount of a grant award is determined solely in the discretion of the Board. The Board is not required to fund a grant in the amount requested by the Applicant”), and 75:50-1-2 (limiting definitions of “applicant” and “recipient” to “eligible participants,” who are defined to “mean[] the same as [Okla. Stat. tit. 74, Sec. 30.5(3)]). Okla. Stat. tit. 74, Sec. 30.5(3) (“‘Eligible participant means any political subdivision impacted by the opioid crisis”) and Sec. 30.5(9) (defining “political subdivision” by referencing Oka. Stat. tit. 51, Sec. 152(11)(a)-(d)). ↑
Oka. Stat. tit. 51, Sec. 152(11)(a)-(d) (defining “political subdivisions” to mean the above municipality, school district, county, or public trust). See, e.g., Opioid Abatement Board awards first round of grants. Oklahoma Attorney General press release. June 4, 2024. Accessed September 1, 2024 (“The Oklahoma Opioid Abatement Board today awarded $11 million in grant awards to 71 cities, counties, schools districts and public trusts to help address Oklahoma’s opioid crisis”). ↑
Okla. Stat. tit. 74, Sec. 30.7(C)(1)-(3). OAC Secs. 75:50-3-1 (Board rules on grant application process), 75:50-3-2 (detailed Board rules on restrictions and requirements for grant awards from the Revolving Fund) and 75:50-3-4 (application review and disbursement processes). But see OAC Sec. 75:50-3-1(c) (“The Board may delegate review of completed applications to the Office of the Attorney General and to whomever it finds qualified, capable, and possessing necessary capacity”). ↑
Okla. Stat. tit. 74, Sec. 30.7(C)(4) (responsibility of Board to “[m]aintain oversight over the expenditure of opioid grant awards to ensure grant proceeds are used exclusively for approved purposes”). The Board also has the power to suspend awards to grantees that misspend their awards. Okla. Stat. tit. 74, Sec. 30.7(C)(5). ↑
OAC Sec. 75:50-2-1(c)(1)-(4). See also Appendix A (Opioid Distribution Calculation Table) for how different criteria are weighed. ↑
Appendix B (County Tiers). Note that the Board can exceed its maximum ranges if an applicant demonstrates extraordinary need and there are sufficient funds available for it to do so. OAC Sec.75:50-3-3(j). ↑
OAC Sec. 75:50-3-2(a)(1)-(3). See also Okla. Stat. tit. 74, Sec. 30.7(D). ↑
OAC Sec. 75:50-3-1(j). See, e.g., Diana Dickinson. County receives half-million dollar opioid abatement grant. The Claremont Daily Progress. June 8, 2024. Accessed September 1, 2024 (“This comes after the Rogers County Board of County Commissioners submitted a joint application in March with the city of Claremore for $506,158 to the Oklahoma Attorney General. … By pursuing these funds together, the city-county must follow strategies and guidelines, defined by the Oklahoma Attorney General, for supporting individuals struggling with addiction and focusing on prevention and community education efforts”). ↑
OAC Sec. 75:50-3-2(f). ↑
OAC Sec. 75:50-3-4(a) and Appendix G. ↑
OAC Sec. 75:50-3-4(a). ↑
Okla. Admin. Code Sec. 75:50-3-4(i) The Board’s current emergency rules are effective until September 15, 2024, but the proposed permanent rules, adopted at the Board’s February 21, 2024 meeting, include identical language. ↑
For example, the provision would prohibit the use of funds from the “Opioid Abatement Board” share to reimburse a political subdivision for treatment expenses which will be reimbursed by Medicaid, but it would not prohibit the political subdivision from using funds to replace (i.e., supplant) expenses it would otherwise pay with general revenue funds. See, e.g., Oklahoma Opioid Abatement Award Application, Question 16f (“Has your political subdivision or public trust leveraged all other sources of funding (e.g., billing for billable services under an insurance plan, Medicare or Medicaid) available prior to applying for this grant?”). Oklahoma Opioid Abatement Board. December 20, 2023. Accessed September 1, 2024. ↑
2024 OPIOID ABATEMENT GRANT APPLICATION, Question 12b. December 20, 2023. Accessed September 1, 2024. ↑
FY 2023 OPIOID ABATEMENT GRANT AWARD AGREEMENT Sec. 2(d) (“Funds made available through the Oklahoma Opioid Abatement Revolving Fund shall be used to supplement, and not supplant, other federal, state, and local funds. The supplement, not supplant, requirement ensures that Grant funds are expended to benefit the intended population defined in the Application, rather than being used to cover expenses that the Recipient would have paid out of other funds if Grant funds were not available”). Meeting Packet for the Oklahoma Opioid Abatement Board’s Special Meeting on December 20, 2023. Accessed September 1, 2024. ↑
See Abatement Grant Frequently Asked Questions (FAQs), Question 30 (“Is a political subdivision authorized to supplant existing funds with funds awarded by the Board?” “Yes, but only for abatement strategies, programming and services that started on or after January 1, 2015. For example, if a political subdivision were to decide to reduce or replace previously allocated funds with Board-awarded grant funds to support an existing abatement program, this would be supplanting and is not prohibited under the Act. However, the Legislature in passing the Act has expressed its intent and encourages “forward-looking” strategies, programming and services and the expansion of availability of the same. Therefore, supplanting is discouraged as the grant award funding available through the Opioid Abatement Board may be one-time funding. However, supplementing, adding to, expanding, or enhancing programs or services starting on or after January 1, 2015 is allowable”) (emphasis in original). Oklahoma Opioid Abatement Board. January 2024. Accessed September 1, 2024. See also Abatement Grant Frequently Asked Questions (FAQs), Question 30 in the Meeting Packet for the Oklahoma Opioid Abatement Board’s Special Meeting on December 20, 2023 (identical to January 2024 FAQ). Accessed September 1, 2024. ↑
OAC Sec. 75:50-3-7(c)-(d). ↑
Last updated
