70% Opioid Abatement Fund Share
Where do these monies live?
The Tennessee Opioid Abatement Fund holds 70% of the state’s opioid settlement funds.[1]
Community Funding. Sixty-five percent (65%) of the Fund — or 45.5% of the state’s total — is used for statewide, regional, or local opioid abatement and remediation purposes.[2]
County Funding. Thirty-five percent (35%) of the Fund — or 24.5% of the state’s total — is allocated to participating counties according to these allocation percentages.[3] Allocation percentages are recalculated every four years.[4]
What can this share be spent on?
Excepting certain costs,[5] Fund monies must only be used on “[p]rospective opioid abatement and remediation” uses,[6] and funds are explicitly prohibited by state law from being used to reimburse expenses incurred prior to May 24, 2021.[7]
The 35% County Funding portion must only be spent on uses specifically approved by the Tennessee Opioid Abatement Council (OAC) or on a list of its approved programs.[8] The OAC’s list — Exhibit E (“Tennessee’s Opioid Abatement & Remediation Uses”) — has “largely adopted” the national settlement agreements’ (non-exhaustive) Exhibit E, [9] which includes prevention, harm reduction, treatment, recovery, and other strategies.
Who ultimately decides how to spend this share (and how)?
For the Community Funding portion of this share (65%), Tennessee Opioid Abatement Council decides; for the County Funding portion (35%), county officials decide.
Community Funding: OAC decides.[10] Prior to making its disbursement decisions,[11] the Tennessee Opioid Abatement Council (OAC) is required by state law to consider the Department of Mental Health and Substance Abuse Services’ needs assessment and allow public comment from community stakeholders, localities, other interested parties.[12] In September 2023, the OAC announced a competitive grant application process to distribute this share.[13]
County Funding: Counties decide (on OAC-approved strategies). Decisionmakers for the counties will ultimately decide for themselves how to spend their allocated shares on OAC-approved abatement programs.[14] Each county retains decision-making authority over its funds.[15]
Is this share attached to an explicit bar against supplantation?
Supplantation is partially prohibited (“community funding” sub-share only). The Tennessee Opioid Abatement Council’s (OAC) current grant agreement for Community Grants includes terms prohibiting supplantation uses of awarded settlement funds.[16] This means that sixty-five percent (65%) of the Opioid Abatement Fund — or 45.5% of the state’s total opioid settlement funds — is attached to a bar against supplantation.[17]
However, neither Tennessee state law nor the Tennessee State-Subdivision Opioid Abatement Agreement contain a general prohibition against supplantation uses of its opioid settlement funds,[18] and the current Letter of Agreement between the OAC and counties also does not address supplantation.[19] This means that the 35% of funds in the Opioid Abatement Fund allocated to counties — 24.5% of the state’s total settlement funds — may be spent in ways that replace (or “supplant”) — rather than supplement, existing resources.[20]
Can I see how this share has been spent?
Yes (no public reporting required, only intrastate). View Community Funding awardees here. View County Funding semiannual reports here. Tennessee law requires the OAC to submit a report on expenditures from this share to the governor and legislative leadership each year.[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
Tenn. Code Ann. Sec. 9-4-1301(a) (“The opioid abatement fund is established and funded pursuant to this part”).
Tennessee State-Subdivision Opioid Abatement Agreement with 2023 Amendments (Agreement) III.D(1) (“The 70% Abatement Accounts Fund shall be directed to the Tennessee Opioid Abatement Fund”). Amendments to this Agreement in 2023 applied its terms to the settlements with Allergan, Teva, CVS, Walgreens, and Walmart. ↑
Tenn. Code Ann. Sec. 33-11-103(p). ↑
See also Agreement Exhibit A, Sec. F and Attachments D and E from Tennessee Opioid Settlements Guide for Local Governments. Office of the Attorney General and Reporter. March 2023. Accessed August 26, 2024. See Tenn. Code Ann. Secs. 33-11-103(p)-(q) for requirements related to the calculation of percentage allocations to each county. For projected funding totals for each county through 2026 from this share, see Opioid Abatement Trust Funds County Payment Projections 2024-2026. Tennessee Opioid Abatement Council (OAC). Last updated February 2, 2024. Accessed August 26, 2024. ↑
Tenn. Code Ann. Secs. 33-11-103(q) and Tennessee Opioid Settlements Guide for Local Governments. Office of the Attorney General and Reporter. March 2023. Accessed August 26, 2024. ↑
Tenn. Code Ann. Secs. 9-4-1302(a)(2)-(4) (describing authorized spending on costs of administering the fund, as well as the operation and staffing of the Opioid Abatement Council ), Sec. 33-11-103(h)(3) (providing that monies from the Opioid Abatement Fund can be used to cover expenses incurred by OAC members in the performance of their duties), and Sec. 33-11-105(a) (“These disbursement directives [from the Fund] shall be limited to funding or supporting opioid abatement and remediation purposes and related administrative costs”). However, monies from the Opioid Abatement Fund may not be used for litigation costs or attorneys’ fees. Tenn. Code Ann. Sec. 9-4-1302(b). ↑
State law defines “opioid abatement and remediation purposes” as “programs, strategies, expenditures, and other actions designed to prevent and address the misuse and abuse of opioid products and treat or mitigate opioid use or related disorders or other effects of the opioid epidemic.” Tenn. Code Ann. Sec. 3-11-102(5). Outside of the minor exceptions for administrative costs associated with the administration and operation of the Fund and the OAC, monies from the Fund can only be spent on “prospective opioid abatement and remediation.” Tenn. Code Ann. Sec. 9-4-1302(a). See also Tenn. Code Ann. Sec. 33-11-105(a) (“These disbursement directives [from the Fund] shall be limited to funding or supporting opioid abatement and remediation purposes and related administrative costs”). ↑
Tenn. Code Ann. Sec. 9-4-1302(b) (“Funds in the opioid abatement fund shall not be used to reimburse expenditures incurred prior to May 24, 2021”). Cf. Agreement III.B (“money from all three sub-funds [is required] be used for ‘Opioid Remediation’ as that term is defined in those agreements. Such definitions include restitution for past abatement within the definition of remediation”). ↑
Tenn. Code Ann. Secs. 33-11-103(r)(1)-(2). See also Tenn. Code Ann. Sec. 33-11-103(s)(1) (OAC to create a list of approved programs). ↑
Tennessee Opioid Settlements Guide for Local Governments. Office of the Attorney General and Reporter. March 2023. Accessed August 26, 2024 (“[T]he Opioid Abatement Council largely adopted the list of remediation expenditures used in Exhibit E of the settlement agreements as approved expenditures for Abatement Fund disbursements to counties. (There are a few tweaks.)”). ↑
Tenn. Code Ann. Sec. 9-4-1302(c) (“Any opioid abatement fund disbursements must be made at the direction of the opioid abatement council. Except to the extent required by law, the trustees of the opioid abatement fund shall not make or refuse to make any disbursement contrary to the direction of the opioid abatement council”). See also Tenn. Code Ann. Sec. 9-4-1303(a) (describing the commissioner of finance and administration, state treasurer, and chair of the Opioid Abatement Council as trustees of the Fund), Sec. 9-4-1305(a) (requiring trustees to adopt an investment policy), and Sec. 9-4-1303(c) (“To the extent not prohibited by law, the trustees shall not act contrary to the direction of the opioid abatement council and shall uphold the decisions the council renders regarding disbursement of funds from the opioid abatement fund”). ↑
Tenn. Code Ann. Sec. 33-11-105(a) (“[T]he council shall direct the disbursement of funds held in the opioid abatement fund by decisions approved by at least a majority of the entire membership of the council”). ↑
Tenn. Code Ann. Sec. 33-11-105(a). ↑
Tennessee Opioid Abatement Council Opens Community Grant Application Portal. Department of Mental Health and Substance Abuse Services. September 1, 2023. Accessed August 26, 2024. ↑
The OAC also has “the authority to create an application and certification process” for counties interested in applying for funds for programs not in this list. Tenn. Code Ann. Sec. 33-11-103(s)(3). ↑
Tenn. Code Ann. Secs. 33-11-103(r)(1)-(2) (monies allocated to counties from the Fund must be on purposes that are “specifically approved by the council” or “included on a council list of approved programs”). See also Tenn. Code Ann. Sec. 33-11-103(s)(1) (OAC to create a list of approved programs). See also Tennessee Opioid Settlements Guide for Local Governments. Office of the Attorney General and Reporter. March 2023. Accessed August 26, 2024 (“These funds are required to be spent on future Opioid Abatement Council-approved abatement programs, but each county will control its share of the funds”) (emphasis added). The OAC may require counties’ monies to revert back to the Fund if not used within a certain amount of time. Tenn. Code Ann. Sec. 33-11-103(s)(5). The OAC also has “the authority to create an application and certification process” for counties interested in applying for funds for programs not in this list. Tenn. Code Ann. Sec. 33-11-103(s)(3). ↑
Grant Contract Between the Tennessee Opioid Abatement Council and Grantee Name Sec. A.6 (“Grantees shall seek compensation from third party payers or sources, such as Medicaid or other grant sources, prior to billing against this Grant Contract, for reimbursable services and supports delivered under this Grant Contract. Funding under this Grant Contract should not supplant other funding sources but should supplement the activities and expenses outlined in Attachment 2 that are otherwise non-reimbursable from third-party payors or sources.”) (emphasis added). Accessed September 1, 2024. Because this restriction is contained in a grant contract, it could change in future. ↑
Tenn. Code Ann. Sec. 33-11-103(p) (describing allocation). The bar against supplantation applies to the 65% Community Funding sub-share of the 70% Opioid Abatement Fund share. Sixty-five percent (65%) of 70% is 45.5%. ↑
See also Summary of 2023 Amendments to Tennessee State-Subdivision Opioid Abatement Agreement. Accessed September 1, 2024. ↑
Opioid Abatement Council FY2023 Annual Report, Attachment A. September 30, 2023. Accessed September 1, 2024. ↑
Tenn. Code Ann. Sec. 33-11-103(p) (describing allocation). See also Tennessee State-Subdivision Opioid Abatement Agreement, Exhibit A. Accessed September 1, 2024. Opioid Abatement Trust Funds Paid to Counties 2023. Opioid Abatement Council. Accessed September 1, 2024. ↑
Tenn. Code Ann. 33.11.105(b) (OAC must submit a report on or before September 30 of each year to the governor and legislative leadership that “details the total funds deposited into the opioid abatement fund, the abatement strategies funded, and any disbursement or expenses paid from the opioid abatement fund”). ↑
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