Let the sunshine in
Opioid settlement funds must be more transparent
The funds received by the state of Pennsylvania and its counties as part of the landmark settlement with opioid manufacturers and marketers may not come directly from taxpayers, but they are meant to be used for the public good. The state’s Opioid Misuse and Addiction Abatement Trust must therefore conduct its business in full view of the public, including abiding by all the rules imposed by the Sunshine Act, as required in the court order that created the trust to begin with.
This transparency will both allow for public accountability and ensure funds are used in the most effective waypossible.
Unfortunately, since first convening in July of 2022, under the leadership of Tom VanKirk — the chief legal officer for Pittsburgh-based Highmark Health who was appointed to lead the board by former Gov. Tom Wolf — the trust has consistently skirted, and sometimes brazenly disregarded, state transparency laws. If the board will not abide by the rules imposed on it, accountability must come from elsewhere — in this case, Gov.Josh Shapiro, who has the power toremove Mr. VanKirk at any time.
Meanwhile, Allegheny County does have a public dashboard to track its settlement expenditures, but its decision-making is also opaque, and its public reporting comes with scanty details.
This all makes it difficult for experts and on-the-ground practitioners to understand what’s driving these decisions, and to contribute to ensuring these funds — which are extensive but not limitless — help as many people as possible.
Creating the trust
The Pennsylvania Commonwealth Court created the Opioid Misuse and Addiction Abatement Trust by court order on July 12, 2022. The trust is meant to collect and oversee the distribution of over $1 billion allotted to the commonwealth as part of the $26 billion settlement reached by dozens of states the year prior.
Inorder to avoid the absurdities that followed the $200 billion tobacco settlement in 1998 — which included states using the funds for public infrastructure, tax relief and in one case marketing for, yes, tobacco farmers — opioid settlement funds can only be used for purposes listed in a document known as “Exhibit E.” The list is long, in order to accommodate different realities and priorities in different regions, which means that thorough and strategic planning is necessary to ensure funds reach their life-saving potential.
Mr. Shapiro, along with other state attorneys general who negotiated the settlement, set a target to use 85% of funds specifically for treatment and prevention of opioid use disorder. In Allegheny County, that would mean over $75 million of the $90 million that will be disbursed to the county over the next 15 years.
In the shadows
But from the beginning, tracking plans for Pennsylvania’s share has proven difficult. According to extensive reporting by the investigative agency SpotlightPA and Pittsburgh’s NPR affiliate WESA, the trust’s board met privately and without public notice for the first several months of its existence. This occurred despite the express directive in the Commonwealth Court’s order that “the proceedings and meetings of this Trust shall be governed by the Sunshine Act.”
And then, once meetings finally became public, the board prohibited public comment — another Sunshine Act violation.
Perhaps most troublingly of all, however, the trust’s business is about to kick into high gear just this week. March 15 is the deadline for all county recipients of settlement funds to report their expenditures to the trust, who will judge the suitability of each county’s spending — and can dock funding to counties whose work it doesn’t approve.
But rather than making these monumental decisions in full public view, as the court clearly intended, Mr. VanKirk has proposed considering the counties’ submissions in private “working groups” before presenting recommendations to the full board, which will almost certainly rubber stamp them. SpotlightPA and WESA report that Mr. VanKirk has not bothered to offer even a fig-leaf legal justification for this maneuver, which directly violates the Sunshine Act.
The best disinfectant
The people of Pennsylvania must have confidence that this potentially transformative billion-dollar infusion of funding is not going to waste. In this, they must count on Mr. Shapiro, who took a leading role in the litigation that led to the settlement as attorney general — but who also has a spotty record on transparency. But these funds are a significant part of his legacy: He has nothing to lose and much to gain from communicating to Mr. VanKirk that he will not tolerate skirting or ignoring the Sunshine Act in the trust’s business.
In Allegheny County, meanwhile, decisions about funding are completely opaque. A more public process would ensure a broader variety of input to steer funds toward their most effective uses.
On the bright side, a public dashboard does give reasonably detailed information about where funds are budgeted, and where they’ve been spent. From this dashboard, for instance, we can see that nearly 30% of expenditures so far have been for “research,” leaving only 70% for treatment and prevention. Now, if this research is meant to provide data to drive future funding decisions, it may be worthwhile, but the current dashboard only gives vague category designations.
Pennsylvanians deserve firm commitments to transparency and accountability from the state opioid settlement trust and from Allegheny County officials. We must not look back, decades from now, at this historic influx of life-saving resources thatwere not used to save lives.