30% Local Share
Where do these monies live?
Localities receive their collective 30% from two sub-allocations of this share:
15% “subdivision share” (unrestricted). This share is distributed directly to the 113 participating cities and counties according to Exhibit A of Virginia’s MOU.[1]
15% “direct subdivision abatement share” (restricted). This share is also distributed directly to the 113 participating cities and counties according to Exhibit A of Virginia’s MOU.[2]
What can this share be spent on?
15% “subdivision share” (unrestricted). This sub-allocation is not required to be spent opioid abatement purposes.[3] However, Virginia “strongly discourages spending any settlement funds for non-abatement purposes,”[4] and settlement agreements that require higher minimum abatement thresholds may necessitate abatement uses of this portion of the local share.[5]
15% “direct subdivision abatement share” (restricted). With limited exceptions,[6] this sub-allocation must be spent on approved abatement purposes.[7] In defining “Approved Abatement Purposes,” the MOU provides a 10-item list that largely mirrors the national settlement agreements’ Exhibit E, Schedule B (“Approved Uses”) but adds support for drug courts and detoxification programs and omits support for first responders other than law enforcement and certain leadership, training, and research-related uses.[8]
Virginia has also instituted a “Gold Standard” policy to incentivize localities to use their “Direct Distribution Funds” — which include both the unrestricted and restricted sub-allocations of the local share — to fund remediation efforts, to not supplant existing funding, and in ways that allow for monitoring by the Virginia Opioid Abatement Authority (OAA).[9] Cities and counties that voluntarily comply with these requirements receive a 25% boost to their OAA distribution for that year.[10]
Who ultimately decides how to spend this share (and how)?
Local governments decide autonomously. Though decisionmakers for the participating cities and counties will ultimately decide for themselves how to spend their monies on opioid remediation uses,[11] each are subject to the “record-keeping and transparency” requirements attached to the restricted half of this share.[12]
Is this share attached to an explicit bar against supplantation?
Generally, supplantation is not prohibited. Virginia does not explicitly prohibit supplantation uses of this share. However, the Opioid Abatement Authority (OAA) offers local governments an incentive to use and report their allocations from this 30% local share in accordance with OAA’s “Gold Standard” policy, which includes a prohibition against supplantation.[13]
Can I see how this share has been spent?
Up to each locality (neither public nor intrastate reporting required). Opioid settlement expenditures are not officially published in a centralized location for this share. Localities are required to make “the purposes for which …[they] used” their restricted funds publicly available only “[u]pon request.”[14]
Visit OpioidSettlementTracker.com’s Expenditure Report Tracker for an updated collection of states’ and localities’ available expenditure reports.
What else should I know?
The OAA has published additional guidance detailing its position on whether certain law enforcement, emergency medical services (EMS), and fire services expenses qualify as “Gold Standard” uses of localities’ settlement funds.[15]
Citations
Virginia Opioid Abatement Fund and Settlement Allocation Memorandum of Understanding (MOU) B.1 (“fifteen percent (15%) going to the Participating Political Subdivisions (‘Subdivision Share’)”), MOU B.2 (“The Subdivision Share shall be allocated and paid to the Participating Political Subdivisions in accordance with … Exhibit A. The shares of Virginia counties and independent cities who elect not to become Participating Political Subdivisions, if any, shall be reallocated ratably to the Participating Political Subdivisions””). See also MOU A.2 (defining “Political Subdivision” to mean “the Virginia counties and independent cities represented by Counsel”) and About: Overview of the Virginia Opioid Abatement Authority and opioid settlement funds. Virginia Opioid Abatement Authority (OAA). Accessed August 29, 2024 (All 133 counties and cities in the Commonwealth signed this MOU”). ↑
MOU B.5(b) (“Fifteen (15%) of the Opioid Funds shall be allocated and paid to the Participating Political Subdivisions and shall be used for Approved Abatement Purposes (‘Direct Subdivision Abatement Share’)…The Direct Subdivision Abatement Share shall be allocated and paid to the Participating Political Subdivisions in accordance with … Exhibit A). ↑
MOU B.1. See also Virginia Attorney General. Summary of Key Provisions on the Use of Funds Received from National Opioid Settlements (AG Summary). April 18, 2023. Accessed August 29, 2024 (“The 30% share allocated to the localities is divided into two equal components—15% is restricted to uses for opioid abatement and remediation, and 15% is “unrestricted”). ↑
Locality Reporting Guidance on Opioid Settlement Funds. Virginia Auditor of Public Accounts. Updated July 2024. Accessed August 30, 2024 (emphasis added). ↑
MOU B.6 (“To the extent a Settlement requires that all Opioid Funds be used only for abatement or similar purposes, then the Subdivision Share and the Commonwealth Share shall be used for Approved Abatement Purposes”). See also AG Summary (“[T]he MOU also makes clear that any provisions in opioid settlement agreements that restrict the use of settlement funds to abatement purposes take precedence over and supersede the MOU’s allowance for “unrestricted” funds. That is, if a settlement agreement requires that a greater percentage—or all—of the funds from that settlement must be used for abatement purposes, the settlement agreement’s terms control, and some or all of the 15% MOU share to the localities that otherwise might have been “unrestricted” will be restricted to use for opioid abatement purposes”). ↑
See e.g., MOU D.3 (describing the creation of a “Deficiency Fund” to compensate counsel for Participating Political Subdivisions that filed suit on or before April 30, 2020) and D.4 (describing how the “Deficiency Fund” is funded, with 25% of the Subdivision Share and 25% of the Direct Subdivision Abatement Share being deposited in it from national settlements, an that “[n]o portion of the Deficiency Fund shall be drawn from the Commonwealth Share or the [Opioid Abatement] Fund”). ↑
MOU B.5(b) (“Fifteen (15%) of the Opioid Funds shall be allocated and paid to the Participating Political Subdivisions and shall be used for Approved Abatement Purposes (‘Direct Subdivision Abatement Share’)”) (emphasis added). See MOU A.9 (defining “Approved Abatement Purposes” as efforts to teat, prevent, or reduce opioid use disorder or the misuse of opioids or to otherwise abate or remediate the opioid epidemic, including but not limited to those efforts described in [MOU] Section C(4)(a) through (j) of this MOU. In addition, ‘Approved Abatement Purposes’ shall include the types of efforts Approved for Funding by the [Opioid Abatement] Authority … and shall include any other abatement or remediation purposes to the extent such purposes are described in a Settlement”). See also AG Summary. April 18, 2023. Accessed August 29, 2024 (explaining that “[t]he 30% share allocated to the localities is divided into two equal components—15% is restricted to uses for opioid abatement and remediation, and 15% is “unrestricted” and that “the 15% share that is restricted to abatement uses is subject to a recordkeeping and transparency requirement”). ↑
MOU C.4(a)-(j). Note that these provisions of the MOU mirror state law on use of funds from the 55% Opioid Abatement Fund share administered by the OAA. See Va. Code Ann. Sec. 2.2-2370(A)(1)(a)-(j). See also OAA Position on Whether Law Enforcement, EMS, and Fire Services Expenses Qualify as “Gold Standard” Uses of Opioid Settlement Funds. OAA. June 14, 2024. Accessed September 1, 2024. ↑
To Incentivize Cities and Counties to Use and Report Direct Distributions from Opioid Settlements by Meeting the OAA “Gold Standard” (Gold Standard Policy). OAA. Accessed August 29, 2024 (“To encourage participating cities and counties to use all of their Direct Distribution funds fully for remediation and abatement, and to encourage participating cities and counties to report the use of their Direct Distribution funds to the OAA for the purpose of ensuring statewide adherence to the various settlement agreements, the Board hereby offers a voluntary financial incentive to each participating city and county. For each fiscal year that a participating city or county agrees to use and report their Direct Distribution funds according to the same standards they are required to use and report their OAA Distribution funds (i.e., the Gold Standard), the Board agrees to increase that city or county’s OAA Distribution by 25% above the base amount for that same fiscal year”). See also About: Overview of the Virginia Opioid Abatement Authority and opioid settlement funds. OAA. Accessed August 29, 2024 (describing 30% “Direct Distributions” to cities and counties). ↑
Gold Standard Policy. OAA. Accessed August 29, 2024. The “Gold Standard” policy reflects requirements in state law for distributions from the Virginia Opioid Abatement Authority. See Va. Code Ann. Sec. 2-2-2370(A). ↑
MOU B.2 (“The Subdivision Share shall be allocated and paid to the Participating Political Subdivisions in accordance with … Exhibit A. The shares of Virginia counties and independent cities who elect not to become Participating Political Subdivisions, if any, shall be reallocated ratably to the Participating Political Subdivisions””) and MOU B.5(b) (“Fifteen (15%) of the Opioid Funds shall be allocated and paid to the Participating Political Subdivisions and shall be used for Approved Abatement Purposes (‘Direct Subdivision Abatement Share’)…The Direct Subdivision Abatement Share shall be allocated and paid to the Participating Political Subdivisions in accordance with … Exhibit A). ↑
AG Summary. April 18, 2023. Accessed August 29, 2024 (“The 15% share that is restricted to abatement uses is subject to a recordkeeping and transparency requirement”). ↑
To Incentivize Cities and Counties to Use and Report Direct Distributions from Opioid Settlements by Meeting the OAA “Gold Standard.” (OAA Gold Standard). Virginia Opioid Abatement Authority. Accessed September 1, 2024 (“Participating cities and counties shall not supplant funding of an existing program nor collect indirect costs”). ↑
MOU B.5(b). The MOU does not identify the entity or entities permitted to do the requesting. ↑
OAA Position on Whether Law Enforcement, EMS, and Fire Services Expenses Qualify as “Gold Standard” Uses of Opioid Settlement Funds. OAA. June 14, 2024. Accessed September 1, 2024 ↑
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