45% State Share

Where do these monies live?

The state’s 45% share is placed in the Opioid Settlement Restricted Fund,[1] and about 5% of its value is distributed to the Opioid Crisis Recovery Fund each year.[2]

What can this share be spent on?

In general, and with limited exceptions,[3] this share must be spent on opioid related expenditures,[4] which the state defines in general to mean the national settlement agreement’s (non-exhaustive) Exhibit E, which includes prevention, harm reduction, treatment, recovery, and other strategies.[5]

Monies from the Opioid Crisis Recovery Fund monies may be used to reimburse prior abatement costs.[6] The Recovery Fund must also be spent to prioritize evidence-based statewide and regional programs, including those that treat opioid use disorder and co-occurring substance use disorders and mental health conditions; provide connections to care; address the needs of those involved in the criminal legal system; address the needs of pregnant or parenting women and their families; support efforts against overprescribing, discourage “misuse,” reduce overdose deaths “or other opioid-related harms”; educate law enforcement; and provide support services for first responders who experience secondary trauma.[7] The state share may also be spent on research.[8]

Who ultimately decides how to spend this share (and how)?

State legislature decides. The Recovery Fund is appropriated by the New Mexico state legislature, which ultimately decides how the Recovery Fund is spent on statewide and regional abatement programming.[9]

Is this share attached to an explicit bar against supplantation?

No, supplantation is not prohibited. Like most states, New Mexico does not explicitly prohibit supplantation uses of its opioid settlement funds. This means that the 45% state share may be spent in ways that replace (or “supplant”) — rather than supplement — existing resources.

Can I see how this share has been spent?

No (neither public nor intrastate reporting required). Opioid settlement expenditures are not officially published in a centralized location for this share.[10]

Visit OpioidSettlementTracker.com’s Expenditure Report Tracker for an updated collection of states’ and localities’ available expenditure reports.

What else should I know?

Several of New Mexico’s opioid settlements were reached as the result of the Attorney General’s use of private law firms.[11] This approach incurred “significantly higher [attorneys’] fees” than states participating in national settlement accords and drew the attention of the state’s Legislative Finance Committee, among others.[12] In November 2023, the former Attorney General penned a response to these concerns.[13]

Citations

1. Agreement B.3 (“45% to the State of New Mexico (‘State Share’)”). N.M. Stat. Ann. Sec. 6-4-28(A) (“The ‘opioid settlement restricted fund’ is created as a nonreverting fund in the state treasury, separate and distinct from the general fund” and “consists of money, other than attorney fees and costs, paid to the state”) and Sec. 6-4-28(C) (“Opioid funds designated by the New Mexico opioid allocation agreement to be distributed to local governments shall not be deposited into the fund”). The Restricted Fund may also receive monies appropriated to it by the legislature. See N.M. Stat. Ann. Sec. 6-4-28(B). ↑
2. N.M. Stat. Ann. Sec. 6-4-28(D) (“Appropriations from the opioid settlement restricted fund shall only be made to the opioid crisis recovery fund and shall not be made for any other purpose”). Under state law, the first of these distributions was to occur July 1, 2024 and be equal to “five percent of the average year-end market value of the opioid settlement restricted fund for the immediately preceding fiscal year.” N.M. Stat. Ann. Sec. 6-4-28(E). In July 2025, the distribution is calculated based on the preceding two calendar years and beginning in July 2026 and thereafter, the distribution is equal to 5% of the average of the year-end market values of the Restricted Fund for preceding three calendar years. N.M. Stat. Ann. Sec. 6-4-28(F)-(G). ↑

3. Agreement B.1 (describing settlement administrator costs as divided evenly between the state’s share and localities’ share) and Agreement D.5 (“No funds from the State Share shall be used to pay Local Governments’ attorneys’ fees and no funds from the State Share shall be paid to the New Mexico Backstop Fund”). See also LFC Hearing Brief. New Mexico Legislative Finance Committee. May 16, 2024. Accessed August 11, 2024 (“New Mexico will pay $249.4 million in outside counsel fees, 28.2 percent of total opioid settlement revenues”). The controversy around the significant funding directed to outside counsel costs led the former New Mexico Attorney General to write a responsive op-ed. Hector Balderas and Brian McMath. New Mexico Deserves the Facts, Communities Will Receive Vital Treatment Dollars from Opioid Litigation. Rio Grande Sun. November 22, 2023. Accessed August 11, 2024. ↑
4. N.M. Stat. Ann. Sec. 6-4-29(B) (“Money in the opioid crisis recovery fund may only be expended upon appropriation by the legislature and shall only be opioid remediation expenditures”) and Agreement B.6 ("100% of the State Share and the LG Share, regardless of allocation, shall be utilized only for Opioid Related Expenditures"). ↑
5. N.M. Stat. Ann. Sec. 6-4-29(F)(3). The New Mexico law that defines “opioid remediation” for the state’s share of expenditures mirrors language in the national settlement agreements. See Distributor Settlement Agreement I.SS. See also Agreement A.3 (defining "Opioid Related Expenditure” to mean “an expenditure consistent with the categories enumerated in Exhibit E to the Distributor Master Settlement Agreement and the J&J Master Settlement Agreement ... attached hereto as Exhibit B"). ↑
6. Compare Agreement C.2 (“For avoidance of doubt, funds in a LG Abatement Fund may not be expended for costs, disbursements, or payments made or incurred prior to the Settlement”) with N.M. Stat. Ann. Sec. 6-4-29(F)(3) (defining “opioid remediation expenditure” to mean “expenditures on care, treatment and other programs, including reimbursement for past programs or expenditures…”) (emphasis added). ↑
7. N.M. Stat. Ann. Sec. 6-4-29(D)(1)-(9). ↑

8. N.M. Stat. Ann. Sec. 6-4-29(E) (“[A] portion of the money may be allocated toward research on opioid abatement or evaluations of effectiveness and outcomes reporting for substance use disorder abatement infrastructure, programs, services, supports and resources for which money from the opioid crisis recovery fund was disbursed, such as the impact on access to harm reduction services or treatment for substance use disorders or a reduction in drug-related mortality”). ↑

9. N.M. Stat. Ann. Sec. 6-4-29(B) (“Money in the opioid crisis recovery fund may only be expended upon appropriation by the legislature and shall only be opioid remediation expenditures. Priority shall be given to appropriations that support evidence-based statewide and regional programs that seek to abate opioid use disorders and any co-occurring substance use disorders or mental health conditions”). ↑

10. Individual resources may summarize some of the legislative appropriations from this share. For example, this Legislative Finance Committee hearing brief (describing appropriations of $21M in FY24, including $9 million to improve direct service provision, investments in medication-assisted treatment ($4.5 million) and behavioral health initiatives ($2.5 million), and $12 million “to enhance systems designed to address consequences of the opioid crisis”). LFC Hearing Brief. New Mexico Legislative Finance Committee. May 16, 2024. Accessed August 11, 2024. ↑
11. See OpioidSettlementTracker.com’s Global Settlement Tracker. New Mexico hired private law firms to pursue its lawsuits against Walmart, Walgreens, CVS, Kroger, and Albertsons, incurring higher attorneys’ fees than the majority of states that opted to participate in national settlement agreements with these entities. As a result, of the total monies New Mexico recovered from the Distributors settlement and the settlements with Walmart, Walgreens, CVS, Kroger, and Albertsons, 28.2% will be paid to outside counsel. See LFC Hearing Brief. New Mexico Legislative Finance Committee. May 16, 2024. Accessed August 11, 2024. ↑
12. See LFC Hearing Brief. New Mexico Legislative Finance Committee. May 16, 2024. Accessed August 11, 2024. See, e.g., Curtis Segarra. New Mexico to use over one fourth of opioid settlement fees on outside lawyers, according to LFC. KRQE News. May 17, 2024. Accessed August 11, 2024. ↑
13. Hector Balderas and Brian McMath. New Mexico Deserves the Facts, Communities Will Receive Vital Treatment Dollars from Opioid Litigation. Rio Grande Sun. November 22, 2023. Accessed August 11, 2024. ↑