72.5% West Virginia First Foundation Share
Where do these monies live?
The West Virginia First Foundation is a non-profit organization created to hold 72.5% of the state’s opioid settlement funds.[1] The Foundation’s share is subdivided as follows:
80% Board share (58% of total funds statewide). Most of the Foundation share is disbursed by the Foundation’s Board of Directors.[2]
20% regional share (14.5% of total funds statewide). During the first seven years of the Foundation’s funding (through approximately 2030),[3] 20% of its annual budget will be spent on West Virginia’s six regions and disbursed using fixed Regional Share Calculations.[4]
What can this share be spent on?
In general, and with limited exceptions,[5] the Foundation’s share must be spent on the approved purposes described in Exhibit A of West Virginia’s MOU,[6] which mirrors much of the national settlement agreements’ Exhibit E but differs from it in key respects, including but not limited to its omission of syringe service programs from its “Core Strategies” list and the inclusion of an extra law enforcement category of funding to curtail the oversupply of “licit and illicit opioids.”[7]
In addition to the Foundation’s mandatory regional allocations for its first seven years of funding,[8] it may also spend its share on “statewide programs, innovation, research, and education.”[9]
Who ultimately decides how to spend this share (and how)?
West Virginia First Foundation Board of Directors and regions decide, panels guide. The West Virginia First Foundation is governed by its Board of Directors,[10] and the Board is responsible for establishing procedures to disburse the Foundation’s 72.5% share of funds.[11] A Board-appointed Expert Panel is responsible for assisting the Board with its decision-making and advising the state’s six regions on spending settlement funds.[12]
80% Board share: Board decides. The Board will ultimately decide specific expenditures of its non-regional, Board-controlled share, which is disbursed by the Board “based on an evidence-based evaluation of need after consultation with the Expert Panel.”[13] The Foundation will distribute at least part of this share via a competitive grantmaking process.[14]
20% regional share: Regions decide. Regions are required to create governance structures to ensure that local governments “have input and equitable representation regarding regional decisions including representation on the board and selection of projects to be funded” from their regional shares.[15]
Regional Panels. The Foundation’s Expert Panel Policy requires the creation of 6 Regional Panels,[16] who are each responsible for assessing and communicating regional needs to the Foundation’s Expert Panel,[17] as well as “review[ing] all grant applications originating from their Region and submit[ting] their findings and recommendations to the [Expert] Panel.”[18] The Expert Panel reviews the input from the Regional Panels to determine funding recommendations that are submitted to the Foundation Board.[19]
Recommendations submitted by the Expert Panel and Regional Panels are not binding on the Board’s decision-making.[20]
Are supplantation uses prohibited for this share?
No, supplantation is not prohibited. Like most states, West Virginia does not explicitly prohibit supplantation uses of its opioid settlement funds. This means that the Foundation share may be spent in ways that replace (or “supplant”) — rather than supplement — existing resources.
Can I see how this share has been spent?
Eventually (public reporting required). Expenditures from this share will likely be published on the Foundation’s website. State law and the MOU require the West Virginia First Foundation to publish an annual report detailing expenditures from this share.[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
West Virginia First Memorandum of Understanding (MOU) B.2(b)(ii) (“The Foundation will receive 72.5% of the Net Opioid Funds (‘Foundation Share’)”). W Va. Code Sec. 5-31-2 (“‘Foundation’ means the West Virginia First Foundation created under the memorandum of understanding”) and Sec. 5-31-3 (state law recognizing the West Virginia First Foundation, and stipulating that it will have “a governing board, an expert panel, and other additional and regional entities necessary for the purpose of receiving and disbursing opioid funds and other purposes set forth in the order and the memorandum of understanding”). Articles of Incorporation of West Virginia First Foundation, Art. V (“The Corporation is organized as a non-profit”). ↑
MOU C.11(d) (“After the Regional Shares are distributed as set forth in Section 11(c), the Disbursement of Funds from the Foundation Share approved for disbursement by the Board for Approved Purposes shall be disbursed based on an evidence-based evaluation of need after consultation with the Expert Panel. The Parties do not intend to require any specific regional allocation of the Foundation Share other than those distributed pursuant to Paragraph 11(c)”). ↑
The Foundation’s Articles of Incorporation were filed on May 18, 2023. ↑
MOU C.11(c) (“The Foundation shall spend 20% of its annual budget in the six regions during the Foundation's first seven years of funding to be divided according to each Region's fixed Regional Share Calculation. After seven years, all regional spending will be as set forth in Section 11(d)”). See also MOU A.7 (providing that Regional Share Calculations are made by combining local government’s individual shares in Exhibit C for all of the subdivisions in each county listed in Exhibit B) and MOU A.15 (defining “regions” as “the division of the Local Governments into six (6) separate areas as set forth in Exhibit B”). But see Notice of Questions and Responses Regarding RFPs, Q. II.4. West Virginia First Foundation (Foundation). January 19, 2024. Accessed September 1, 2024 (“Under the MOU, the Foundation has certain mandatory distributions to the regions for the first seven years. The Foundation anticipates that there will be additional distributions and expenditures from the Foundation to the regions based upon the various grant applications, evaluations, and approvals”). ↑
MOU A.8 (defining “Net Opioid Funds” to exclude “Opioid Seed Fund payment”), MOU A.17 (providing that the seed funds “are available for use in proper creation and documentation of the West Virginia Opioid Foundation and to fund their start-up work, and subsequent operation”), and MOU B.2(a) (“Subject to relevant approvals, the State shall pay into the West Virginia Seed Fund the $10,000,000 received from McKinsey & Company as a result of the February 3, 2021, consent judgment with the State”) and MOU D (“Payment of all Attorneys' Fees and Litigation Expenses shall be awarded consistent with the orders of the Court and upon recommendation of Judge Christopher Wilkes (WVMLP Special Master). Such award shall be final and non-appealable”), Articles of Incorporation of West Virginia First Foundation, Art. IX.A (describing Foundation’s power to “pay reasonable compensation for services rendered”). See also Articles of Incorporation of West Virginia First Foundation, Art. X.G (“The Board may provide Directors with reasonable allowance for expenses actually incurred in connection with their duties”) and Art. XIII (describing Foundation’s ability to purchase insurance “on behalf of the Directors or officers of the Corporation”). ↑
MOU A.1 (defining “Approved Purpose(s)” to mean “evidence-based strategies, programming and/or services used to expand the availability of treatment for individuals affected by substance use disorders and/or addiction, to develop, promote and provide evidence-based substance use prevention strategies, to provide substance use avoidance and awareness education, to engage in enforcement to curtail the sale, distribution, promotion or use of opioids and other drugs, to decrease the oversupply of licit and illicit opioids and to support recovery from addiction to be performed by qualified providers as is further set forth in Exhibit A and Paragraph B(3)”), MOU B.3 (“All Net Opioid Funds, regardless of allocation, shall be used in a manner consistent with the Approved Purposes definition”), and MOU C.10 (“All expenditures [from the Foundation Share] must be consistent with the categories of Approved Purposes as set forth in Exhibit A hereto”). See also MOU C.11(c) (“Regions may, after consulting with the Expert Panel, expend the sums received under this Section 11(c) for any Approved Purposes”). ↑
MOU Exhibit A Schedule A (“Core Strategies” generally) and Exhibit A Sec. I(1) (“Funding for law enforcement efforts to curtail the sale, distribution, promotion or use of opioids and other drugs to reduce the oversupply of licit and illicit opioids, including regional jail fees”). Compare with the national settlement agreements’ Exhibit E, Schedule A Sec. H(1) (“Provide comprehensive syringe services programs with more wrap-around services, including linkage to OUD treatment, access to sterile syringes and linkage to care and treatment of infectious diseases”). ↑
MOU C.11(c) (“The Foundation shall spend 20% of its annual budget in the six regions during the Foundation's first seven years of funding to be divided according to each Region's fixed Regional Share Calculation. After seven years, all regional spending will be as set forth in Section 11 (d)). ↑
MOU C.11(b). ↑
See generally W. Va. Code Secs. 5-31-3 and 5-31-4, MOU C.1 (governing board), and MOU C.5 (referring to board members as the Foundation’s fiduciaries). See also Articles of Incorporation of West Virginia First Foundation, Art. X.A (“The affairs of the Corporation shall by managed by and under the authority of the Board of Directors”). ↑
MOU C.11(a) (“The Foundation Board shall develop and approve procedures for the disbursement of Opioid Funds of the Foundation consistent with this Memorandum of Understanding”). ↑
MOU C.9 (“The Board shall appoint the Expert Panel. The Expert Panel should include experts in the fields of substance abuse treatment, mental health, law enforcement, pharmacology, finance, and healthcare policy and management. The purpose of the Expert Panel is to assist the Board in making decisions about strategies for abating the opioid epidemic in local communities around the state”), MOU C.11(f) (“The [Board’s] proposed procedures shall set forth the role of the Expert Panel in advising the Regions and the Board concerning disbursements of Opioid Funds of the Foundation as set forth in this MOU”). See also Emily Rice. Foundation Director Challenges Opioid Settlement Board To Distribute Funds Before 2025 (“The board appointed members of its Statewide Expert Panel, as required by the legislature, at its monthly meeting Thursday Aug. 1”). West Virginia Public Broadcasting. August 2, 2024. Accessed September 1, 2024; Steven Allen Adams. West Virginia First Foundation introduces expert panel (describing Foundation’s expert panel has having been “officially introduced to the public [on September 17, 2024]”). News and Sentinel. September 18, 2024. Accessed September 1, 2024. ↑
MOU C.11(d) (“After the Regional Shares are distributed as set forth in Section 11 (c), the Disbursement of Funds from the Foundation Share approved for disbursement by the Board for Approved Purposes shall be disbursed based on an evidence-based evaluation of need after consultation with the Expert Panel”). ↑
West Virginia First Foundation Grants and Requests for Proposals. West Virginia First Foundation website. Accessed September 1, 2024. See also Articles of Incorporation of the West Virginia First Foundation, Art. VIII.D (“the purposes of the Corporation are … To fund the programs and services described in Section 1.5(b)(i) above by disbursing through a competitive grant process funds to private organizations and government agencies engaged in such program”). ↑
MOU C.2 (“Each Region shall create their own governance structure, ensuring that all Local Governments have input and equitable representation regarding regional decisions including representation on the board and selection of projects to be funded from the Regional Share Calculation”). ↑
Expert Panel Policy I.C. West Virginia First Foundation. Accessed September 1, 2024. ↑
Expert Panel Policy III.D-E. West Virginia First Foundation. Accessed September 1, 2024. ↑
Expert Panel Policy III.G. West Virginia First Foundation. Accessed September 1, 2024. ↑
Expert Panel Policy IV.F. West Virginia First Foundation. Accessed September 1, 2024. ↑
Expert Panel Policy III.I and IV.H. West Virginia First Foundation. Accessed September 1, 2024. ↑
W. Va. Code Sec. 5-31-5(b) and MOU C.14. ↑
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