Navigating Settlement Fund Decision-Making with Integrity, Transparency, and Accountability
By: Madison Fields
The Addiction and Public Policy Initiative at the O’Neill Institute for National and Global Health Law at Georgetown Law has produced multiple documents on opioid litigation proceeds, focusing primarily on governance. The latest document, “Conflicts of Interest and Opioid Litigation Proceeds: Ensuring Fairness and Transparency,” hones in on the need for ethical standards and transparency in opioid litigation boards and commissions.
In 2021 and 2022, National Settlements resolved legal claims against pharmaceutical manufacturing and distribution companies stemming from actions that fueled the opioid epidemic. At least 85% of proceeds from both National Settlements will go directly to participating states and local political subdivisions, and must be used for abatement of the opioid epidemic. Though the definition of “abatement” is loose, funds should go to care, treatment, and other programs or expenditures to address opioid misuse and abuse, treat or mitigate related disorders, and mitigate other effects of the opioid epidemic. States have convened experts across various fields establishing decision-making or advisory councils to oversee funds allocation. What makes them experts, however, is their engagement with the addiction field which can, in some instances, create conflicts of interest when assigning funds to programs they have connections to.
A conflict of interest is generally described as a financial association involving a council member or the member’s immediate family that has the potential to influence a council member’s actions, recommendations, or decisions relating to the task at hand – in this case, the disbursement of opioid litigation proceeds and other council activity. Here, allocating funds appropriately and effectively requires engaging subject matter experts in the substance use intervention and recovery fields. However, there is a high probability of conflicts of interest because their experience and involvement with addiction-related organizations is likely to inform their decision-making and recommendations on which organizations should receive funds. Establishing clear conflicts of interest protocol is imperative to navigating the disbursement of opioid litigation proceeds with integrity, while still appreciating the need for subject matter experts and an understanding of organizations eligible for funding.
States established Opioid Settlement Remediation Advisory Committees, but councils vary in size, makeup, authority, and appointment processes. Members generally fall into the following categories: law enforcement and criminal justice, elected officials, government representatives, medical and social service providers, public health and human services, private health and human services, and lived or shared experience. Ratios in which they are represented vary, and a heavy presence of one specific group may influence their recommendations, corroborating the need for conflicts of interest protocol that help ensure the funds are disbursed based on the needs of the community, not on the self-interest of members. Diverse representation that reflects the community is also important in these efforts.
Transparency and accountability principles ensure the enforcement of these conflict of interest protocols, and guidance for when recusal is required. Public trust and engagement in the expenditures of opioid litigation proceeds is essential to the appropriate disbursement of funds and to maximize impact.
Disclosure and recusal have been the minimum actions for state conflicts of interest protocol, but states have gotten creative with how to further address, and even avoid, conflicts of interest. South Carolina’s Opioid Recovery Fund Board, for example, objectively scores applications for organizations using a rubric. Applications are scored on technical proposal, qualifications and experience, and budget, with descriptors for scoring criteria on the rubric. Many states have also adopted their protocol in complement with, and to improve upon, state ethic codes and statutes. Establishing a robust standard for conflicts of interests, along with transparency and accountability principles, allows opioid settlement remediation councils to be successful in their efforts to disburse funds appropriately and effectively.
O’Neill’s, “Conflicts of Interest and Opioid Litigation Proceeds: Ensuring Fairness and Transparency” further details potential conflicts of interests within decision-making and advisory councils, identifies best practices from states with extensive protocols for conflicts of interest, and provides the following recommendations based on these findings:
- Disclosure and Recusal: Disclose conflict of interest, and recuse from votes involving organizations with a conflict of interest.
- Transparency: Meetings should be open to the public, available on the internet, and materials posted.
- Diversity and Representation: Prioritize a diverse makeup of decision-making and advisory councils.
- Core Strategies: Identify core strategies to guide decision-making and advisory councils, or follow the nationally recognized Principles for the Use of Funds from the Opioid Litigation published by Johns Hopkins Bloomberg School of Public Health.
- Prioritize ethical standards: provide ongoing training and a mechanism by which to receive guidance.
- Enforce ethical standards: Establish a mechanism for reporting potential ethics violations.
About the Author:
Madison Fields is a Law Fellow with the Addiction and Public Policy Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center. Fields received her Juris Doctor from Elon University School of Law in Greensboro, North Carolina. While in law school, Fields served as a full-time resident at the ACLU of North Carolina, a legal extern for the Civil Liberties Defense Center, and a research assistant primarily focusing on public health policy and model legislation. Her work at the ACLU focused on the rights of incarcerated people, primarily on access to healthcare, as well as the rights of people arrested for protesting police violence in North Carolina. Outside of her professional experience, Fields has engaged in several social justice initiatives, including initiatives for reproductive rights, racial equity, and incarcerated persons rights. Fields was a board member of her school’s Innocence Project, and received pro bono recognition for her service.