The West Virginia First Foundation is a non-profit organization created to hold 72.5% of the stateâs opioid settlement funds.[1] The Foundationâs share is subdivided as follows:
80% Board share (58% of total funds statewide). Most of the Foundation share is disbursed by the Foundationâs Board of Directors.[2]
20% regional share (14.5% of total funds statewide). During the first seven years of the Foundationâs funding (through approximately 2030),[3] 20% of its annual budget will be spent on West Virginiaâs six regions and disbursed using fixed Regional Share Calculations.[4]
In general, and with limited exceptions,[5] the Foundationâs share must be spent on the approved purposes described in of West Virginiaâs MOU,[6] which mirrors much of the national settlement agreementsâ but differs from it in key respects, including but not limited to its omission of syringe service programs from its âCore Strategiesâ list and the inclusion of an extra law enforcement category of funding to curtail the oversupply of âlicit and illicit opioids.â[7]
In addition to the Foundationâs mandatory regional allocations for its first seven years of funding,[8] it may also spend its share on âstatewide programs, innovation, research, and education.â[9]
West Virginia First Foundation Board of Directors and regions decide, panels guide. The is governed by its ,[10] and the Board is responsible for establishing procedures to disburse the Foundationâs 72.5% share of funds.[11] A Board-appointed Expert Panel is responsible for assisting the Board with its decision-making and advising the stateâs 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 âbased on an evidence-based evaluation of need after consultation with the Expert Panel.â[13] The Foundation will distribute at least part of this share via a .[14]
20% regional share: Regions decide. Regions are required to create governance structures to ensure that local governments âhave input and equitable representation regarding regional decisions including representation on the board and selection of projects to be fundedâ from their regional shares.[15]
Recommendations submitted by the Expert Panel and Regional Panels are not binding on the Boardâs decision-making.[20]
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 âsupplantâ) â rather than supplement â existing resources.
Eventually (public reporting required). Expenditures from this share will likely be published on the Foundationâs . State law and the MOU require the West Virginia First Foundation to publish an annual report detailing expenditures from this share.[21]
Visit OpioidSettlementTracker.comâs for an updated collection of statesâ and localitiesâ available expenditure reports.
Not applicable.
(âThe Foundation will receive 72.5% of the Net Opioid Funds (âFoundation Shareâ)â). W Va. Code Sec. 5-31-2 (ââFoundationâ means the West Virginia First Foundation created under the memorandum of understandingâ) and Sec. 5-31-3 (state law recognizing the West Virginia First Foundation, and stipulating that it will have âa 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 understandingâ). (âThe Corporation is organized as a non-profitâ). â
(âAfter 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)â). â
MOU C.11(c) (âThe 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)â). See also MOU A.7 (providing that Regional Share Calculations are made by combining local governmentâs individual shares in Exhibit C for all of the subdivisions in each county listed in Exhibit B) and MOU A.15 (defining âregionsâ as âthe division of the Local Governments into six (6) separate areas as set forth in Exhibit Bâ). But see Notice of Questions and Responses Regarding RFPs, Q. II.4. West Virginia First Foundation (Foundation). January 19, 2024. Accessed September 1, 2024 (âUnder 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 approvalsâ). â
MOU A.8 (defining âNet Opioid Fundsâ to exclude âOpioid Seed Fund paymentâ), MOU A.17 (providing that the seed funds âare available for use in proper creation and documentation of the West Virginia Opioid Foundation and to fund their start-up work, and subsequent operationâ), and MOU B.2(a) (âSubject 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 Stateâ) and MOU D (âPayment 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-appealableâ), Articles of Incorporation of West Virginia First Foundation, Art. IX.A (describing Foundationâs power to âpay reasonable compensation for services renderedâ). See also Articles of Incorporation of West Virginia First Foundation, Art. X.G (âThe Board may provide Directors with reasonable allowance for expenses actually incurred in connection with their dutiesâ) and Art. XIII (describing Foundationâs ability to purchase insurance âon behalf of the Directors or officers of the Corporationâ). â
MOU A.1 (defining âApproved Purpose(s)â to mean âevidence-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)â), MOU B.3 (âAll Net Opioid Funds, regardless of allocation, shall be used in a manner consistent with the Approved Purposes definitionâ), and MOU C.10 (âAll expenditures [from the Foundation Share] must be consistent with the categories of Approved Purposes as set forth in Exhibit A heretoâ). See also MOU C.11(c) (âRegions may, after consulting with the Expert Panel, expend the sums received under this Section 11(c) for any Approved Purposesâ). â
MOU Exhibit A Schedule A (âCore Strategiesâ generally) and Exhibit A Sec. I(1) (âFunding 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 feesâ). Compare with the national settlement agreementsâ Exhibit E, Schedule A Sec. H(1) (âProvide 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 diseasesâ). â
MOU C.11(c) (âThe 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)). â
MOU C.11(b). â
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 Foundationâs fiduciaries). See also Articles of Incorporation of West Virginia First Foundation, Art. X.A (âThe affairs of the Corporation shall by managed by and under the authority of the Board of Directorsâ). â
MOU C.11(a) (âThe Foundation Board shall develop and approve procedures for the disbursement of Opioid Funds of the Foundation consistent with this Memorandum of Understandingâ). â
MOU C.9 (âThe 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 stateâ), MOU C.11(f) (âThe [Boardâs] 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 MOUâ). See also Emily Rice. Foundation Director Challenges Opioid Settlement Board To Distribute Funds Before 2025 (âThe board appointed members of its Statewide Expert Panel, as required by the legislature, at its monthly meeting Thursday Aug. 1â). West Virginia Public Broadcasting. August 2, 2024. Accessed September 1, 2024; Steven Allen Adams. West Virginia First Foundation introduces expert panel (describing Foundationâs expert panel has having been âofficially introduced to the public [on September 17, 2024]â). News and Sentinel. September 18, 2024. Accessed September 1, 2024. â
MOU C.11(d) (âAfter 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 Panelâ). â
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 (âthe 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 programâ). â
MOU C.2 (âEach 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 Calculationâ). â
Expert Panel Policy I.C. West Virginia First Foundation. Accessed September 1, 2024. â
Expert Panel Policy III.D-E. West Virginia First Foundation. Accessed September 1, 2024. â
Expert Panel Policy III.G. West Virginia First Foundation. Accessed September 1, 2024. â
Expert Panel Policy IV.F. West Virginia First Foundation. Accessed September 1, 2024. â
Expert Panel Policy III.I and IV.H. West Virginia First Foundation. Accessed September 1, 2024. â
W. Va. Code Sec. 5-31-5(b) and MOU C.14. â
This 24.5% local share is distributed directly to participating counties, cities, villages, and towns according to the default allocations in Exhibit C of West Virginiaâs MOU.[1] Counties and their municipalities can agree to allocate the funds differently than according to the default in Exhibit C.[2] Each county and municipality receiving funds is required to set up a separate account to hold their opioid settlement proceeds separate from their general coffers.[3]
In general,[4] this share must be spent on the approved purposes described in Exhibit A of West Virginiaâs MOU,[5] which mirrors much of the national settlement agreementsâ Exhibit E but differs from it in key respects, including but not limited to its omission of syringe service programs from its âCore Strategiesâ list and the inclusion of an extra law enforcement category of funding to curtail the oversupply of âlicit and illicit opioids.â[6]
Localities may use up to one-half of their settlements funds to reimburse for past abatement expenditures (including past âlaw enforcement and regional jail feesâ), provided that these uses are recorded via resolution or similar government action.[7]
Local governments decide autonomously. Local officials in the counties, cities, villages, and towns will ultimately decide for themselves how to spend their monies on approved purposes but must report its uses to the West Virginia First Foundation.[8]
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 local share may be spent in ways that replace (or âsupplantâ) â rather than supplement â existing resources.
Eventually (public reporting required). Expenditures from this share will likely be published on the Foundationâs . State law and the MOU require local governments to submit an annual report to the West Virginia First Foundation specifying their expenditures on approved purposes.[9] The Foundation is then required to publish a consolidated report of opioid settlement expenditures.[10]
Visit OpioidSettlementTracker.comâs for an updated collection of statesâ and localitiesâ available expenditure reports.
Not applicable.
(â24.5% of the Net Opioid Funds shall be allocated as LG Shares. These LG Shares shall be allocated amongst the Local Governments using the default percentages set forth in Exhibit Câ) and W. Va. Code Sec. 5-31-1(d) (legislature finding that â[a]ll 55 counties and virtually all participating municipalities, representing 99.6 percent of the population of West Virginia, have executed the memorandum of understandingâ). See also (defining âLocal Government(s)â to mean âall counties, cities, villages, and towns located within the geographic boundaries of the Stateâ) and (âIf a Local Government for any reason is excluded from a specific Settlement or Judgment, the allocation percentage for that Local Government shall be redistributed among the participating Local Governments for that Settlement or Judgmentâ). â
. â
Here are the entities that ultimately decide how each of West Virginiaâs opioid settlement shares are spent:
72.5% West Virginia First Foundation share: and regions decide
24.5% local share: local officials for counties, cities, towns, and villages
See, e.g., (âPayment 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-appealableâ). â
(defining âApproved Purpose(s)â to mean âevidence-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)â) and B.3 (âAll Net Opioid Funds, regardless of allocation, shall be used in a manner consistent with the Approved Purposes definitionâ). â
(âCore Strategiesâ generally) and (âFunding 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 feesâ). Compare the national settlement agreementsâ (âProvide 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 diseasesâ). â
(âThe LG Share may be used as restitution for past expenditures so long as the past expenditures were made for purposes that would have qualified or were consistent with the categories of Approved Purposes listed in Exhibit A. Prior to using any portion of the LG Share as restitution for past expenditures, a Local Government shall pass a resolution or take equivalent governmental action detailing and explaining its use of the funds for restitution. Moreover, up to one-half of the LG Share may be used to provide restitution for monies that were previously expended on opioid abatement activities, including law enforcement and regional jail feesâ). See, e.g., Toni Milbourne. . The Journal. April 16, 2024. Accessed September 2, 2024 (âAttorney Stephen Skinner also told commissioners that the memorandum of understanding they signed allows the [Jefferson County] commission to use the funds to âreimburseâ themselves for past payments of Eastern Regional Jail fees. The explanation given for that use of the funds was that perhaps the county had to forgo given projects, because it had to pay required jail feesâ). â
(requiring local governments to spend their shares on approved purposes, decide their own intra-county allocations, decide reimbursement uses of funds, and otherwise providing for localitiesâ ability to autonomously spend their shares). See also Attorney General Morrisey, Auditorâs Office, Partner to Ensure Opioid Settlement Money Used Accordingly. Attorney General press release. December 21, 2023. Accessed September 2, 2024 (âLocal governments have broad discretion to decide which approved uses are best to spend their share of the settlement money. See, e.g., Eric Aryes. . The Intelligencer Wheeling News-Register. May 17, 2024. Accessed September 2, 2024 (ââThe state of West Virginia received an opioid settlement of just under $1 billion, of which 22% was distributed to local cities and counties, for use a determined by the county commission â or in this case â city council,â Wheeling City Manager Robert Herron saidâ). â
W. Va. Code Sec. 5-31-5(b) and . â
W. Va. Code Sec. 5-31-5(b) and . â