April 14, 2023

City Administrator Kevin Donahue
John A. Wilson Building
1350 Pennsylvania Avenue, NW, Suite 513
Washington, DC 20004
VIA ELECTRONIC MAIL

Dear City Administrator Donahue:

I am writing to express my serious concerns with the Executive’s proposal in the Fiscal Year 2024 budget, now before the Council, to sweep $2,082,410 from the Opioid Abatement Fund.1 Without a clear indication of how these swept funds are going to be used for opioid abatement, the proposal is likely unlawful, violates the terms of settlement agreements to which the District is a signatory, and should not have been transmitted to the Council.

By way of background, the District is set to receive approximately $50 to $110 million from major national opioid litigation settlements over the next 18 years, and we have already received several million dollars. These settlements, against the country’s largest opioid manufacturers and distributors, represent the second largest civil litigation settlements in U.S. history. Their terms require states and the District to create a structure to receive, manage, expend, and oversee the settlement proceeds before any funds can be expended, which the Council did last session in Bill 24-952, the Opioid Litigation Proceeds Amendment Act of 2022.2 The terms also require that the funds themselves be used for opioid abatement purposes, with narrow exceptions, which is further elaborated upon in the legislation.3 This is the source of my concern. It is unclear to me how the Executive is using these funds, other than to balance the overall budget.

In my Committee Report on Bill 24-952,4 I expressly noted that the bill’s extensive and comprehensive fund management and oversight provisions were intended to protect opioid settlement proceeds from “inappropriate diversion”, with the District’s past failures in stewarding the tobacco settlement proceeds from the 1990s “serv[ing] as a cautionary tale for plaintiff jurisdictions receiving opioid litigation proceeds”.

But it was only 12 days after this bill became law that the proposed budget including the sweep from the Opioid Abatement Fund was transmitted to the Council.

This is not a bureaucratic budgeting disagreement. It is a legal requirement on all branches of our government to use these monies for opioid abatement, and it is also quite literally a matter of life and death. I am not exaggerating when I say that the District – and Ward 6, in particular – has been devastated by opioid-related overdoses and fatalities. In 2022, there were 448 opioid-related fatal overdoses in the District, with an average of 37 deaths per month. This is more than twice the number of homicides last year. And we have had three fatal overdoses in the Southwest community of Ward 6 within the last two weeks alone. The monies from these settlements will be transformative across the District and in my Ward, when appropriated and overseen lawfully and responsibly.

I am requesting the following by the close of business next Monday, April 17:

(1) A detailed description of the proposed uses for the swept funds and to where they were transferred;
(2) The date by which the Executive will submit a reprogramming to the Council of the Opioid Abatement Fund balance from DC Health to the Department of Behavioral Health, which is required before B24-952 can be implemented;
(3) A description of the Executive’s implementation planning underway for the funds and standing up the Opioid Abatement Advisory Commission and Office of Opioid Abatement created in B24-952; and
(4) A description of the Executive’s efforts prior to the sweep to consult with the Office of the Attorney General and Office of the Chief Financial Officer to ensure that the sweep comported with the settlement terms and B24-952.

Without this information, approving the Fiscal Year 2024 budget is likely unlawful. If the sweep is indeed to support opioid abatement, I look forward to receiving a clear description of that plan and where the funds were loaded. Thank you in advance for your responses.

Sincerely,

Councilmember Charles Allen
Chairperson, Committee on Transportation & the Environment
Vice Chair, Metropolitan Washington Council of Governments

Cc: Jenny Reed, Director, Office of Budget and Performance Management, Office of the City Administrator
Barbara Bazron, Director, Department of Behavioral Health
Sharon Lewis, Interim Director, DC Health
Chief Financial Officer Glen Lee
Attorney General Brian Schwalb
Chairman Phil Mendelson
Councilmember Christina Henderson, At-Large & Chairperson, Committee on Health
Councilmember Brooke Pinto, Ward 2 & Chairperson, Committee on the Judiciary & Public Safety
Members, Committee on Health and Committee on the Judiciary & Public Safety

1 See sec. 7042 of the Fiscal Year 2024 Budget Support Act of 2023, https://lims.dccouncil.gov/downloads/LIMS/52613/Introduction/B25-0202-Introduction.pdf.
2 https://lims.dccouncil.gov/downloads/LIMS/51068/Meeting2/Enrollment/B24-0952-Enrollment1.pdf.
3 See sec. 202(c).
4 https://lims.dccouncil.gov/downloads/LIMS/51068/Committee_Report/B24-0952-Committee_Report1.pdf.