808 cmr 00: compliance, reporting and auditing for human and social services

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1.01:   Purpose, Application and Authority

1.02:   Definitions

1.03:   General Provisions

1.04:   Recordkeeping and Reporting Requirements

1.05:   Non Reimbursable Costs

1.06:   Price Authorization for M.G.L. c. 71B Approved Private School Programs

1.07:   Severability
1.01:   Purpose, Application and Authority
(1)   Purpose. 808 CMR 1.00 governs contract compliance, financial reporting and auditing requirements applicable to all procurements of Human and Social Services and to M.G.L. c.71B Approved Private Schools subject to the authority of the Division of Purchased Services (DPS). 808 CMR 1.00 also describes the methods used by DPS in authorizing prices for M.G.L. c. 71B Approved Private School special education Programs.
(2)   Application. 808 CMR 1.00 applies to Contractors and Subcontractors providing Human and Social Services to any Department and to all Contractors operating Programs approved by the Department of Education (DOE) under M.G.L. c. 71B and to their independent auditors, and to any Executive Office, Department, Agency, Board, Commission or Institution of the Executive Department, but excluding the Legislative and Judicial Branches, the Constitutional Offices, the Public Institutions of Higher Education and independent public authorities. Where a Contractor utilizes a Subcontractor to provide some or all of the Human and Social Services or in a Program approved by DOE under M.G.L. c. 71B, the subcontract between the Contractor and the Subcontractor shall require that all provisions of 808 CMR 1.00 shall apply to the Subcontractor as well. As 808 CMR 1.00 applies to services purchased pursuant to M.G.L. c. 71B, it also applies to Commonwealth Local Education Authorities (LEAs). DPS shall issue policies, procedures, and forms related to contract compliance, accounting principles, auditing standards, and pricing as may be determined necessary by DPS to implement the provisions of 808 CMR 1.00 and 801 CMR 21.00, which are in addition to the terms of 808 CMR 1.00.
(3)   Authority. 808 CMR 1.00 is adopted pursuant to M.G.L. c. 29, § 29B and St. 1993, c. 110, § 274, as amended, and any successor provision thereto.
1.02:   Definitions
Unless the context requires otherwise, terms used in 808 CMR 1.00 shall have the following meaning:
Administration and Support Costs. Administration and Support Costs (management and general) include expenditures for the overall direction of the organization, general record keeping, business management, budgeting, general board activities, general legal expenses and related purposes. "Overall direction" includes the salaries and expenses of the chief officer of the organization and the chief officer's staff. If such staff spends a portion of its time directly supervising fundraising or Program service activities, such salaries and expenses are considered indirect fundraising or Program costs and should be prorated (allocated) among those functions by position title or type of expense.
Authorized Price. A price which has been agreed upon in a contract or, in the case of M.G.L. c. 71B Programs, the price authorized by DPS. For health care services (including Title XIX), as defined in M.G.L. c. 118, § 2 (b), the Authorized Price shall be set by the Division of Health Care Finance and Policy or the Division of Medical Assistance.
Base Year. The Fiscal Year which may be designated by DPS for the purpose of its Program pricing activity under 808 CMR 1.06.

1.02:   continued

Capital Item. A Capital Item is:

  1. an asset or group of assets of nonexpendable personal property having a useful life of more than one year and an acquisition cost which equals or exceeds the capitalization level established and certified by the Contractor in accordance with generally accepted accounting principles for financial statement purposes; or

(b)   a repair, betterment or improvement or a group of repairs, betterments or improvements of non-movable assets which costs more than $500 in aggregate and which adds to the permanent value of an asset or prolongs its useful life for more than one year.

Client. An individual, group of individuals, or the family or other person who provides support to such individuals, who is eligible for or receiving Human and Social Services. Also referred to as a consumer.
Client Resources. Revenue received in cash or in kind from Clients to defray all or a portion of the cost of services. These may include supplemental social security income received by the Contractor to defray the room and board expense of residential Clients, Clients' food stamps, or payments made by Clients according to ability to pay, such as a sliding fee scale.
Commercial Fee. A prospectively negotiated earnings allowance derived from a net surplus of Contract Revenue and reimbursable operating costs associated with Human and Social services provided by a for-profit contractor to the Commonwealth pursuant to 808 CMR 1.00. Payments and related expenses received from other governmental payors, allocated administrative revenue and payments from the general public derived from clients, parents or guardians for services rendered to clients not Sponsored by any governmental entity are not considered in the establishment of the for-profit earnings allowance.
Commercial Income. The difference between gross revenues and gross expenses resulting from the production of commercial products and services by Clients.
Contractor. An individual or organization which enters into a contract with a Department or the State to provide Human or Social Services or which operates Programs approved by the Department of Education under M.G.L. c. 71B.
Contract Revenue. Revenue derived from payments for Human and Social services furnished in Commonwealth supported programs from the Commonwealth purchasing department, client resources and third party payments made on behalf of the client from Medicaid, Medicare, insurance companies, health maintenance organizations and other payors.
Days. Calendar days, unless otherwise specified.
Department. Any Executive Office, Department, Agency, Office, Division, Board, Commission or Institution within the Executive Branch, excluding the Legislative Branch, Judicial Branch, Constitutional Offices, Elected Offices, Public Institutions of Higher Education, the Military Division and Independent Public Authorities. The term also includes Massachusetts Local Education Authorities (LEAs) when purchasing M.G.L. c. 71B Approved Private School Programs.
Department of Education (DOE). The Massachusetts Department of Education established by M.G.L. c. 15, § 1, including its departments and divisions.
Division of Purchased Services (DPS). The office within the Operational Services Division of the Executive Office for Administration and Finance.
Fiscal Year of the Commonwealth. The 12 month period beginning on July 1 and ending on June 30th.
1.02:   continued
Human and Social Services. Services provided by a Contractor to assist, maintain or improve the personal, mental or physical well-being of Clients. This may include, but is not limited to, social, habilitative, rehabilitative, health, mental health, mental retardation, special education, vocational, employment and training and elder services.
Local Education Authority (LEA). A local school district or public school defined pursuant to M.G.L. c. 71B.
M.G.L. c. 71B Approved Private School. A private day or residential school approved in accordance with DOE regulation 603 CMR 18.00 or successor thereto. Also referred to as Approved Private School.
Maximum Obligation. The maximum dollar amount of the Department's contract to pay for Human and Social Services.
Off Setting Revenue. The sum of the following revenues and support items. These revenues and support items must be received during the price year and must be dedicated for use in the same Program that also receives Commonwealth funds.
(a)   any Contractor revenues and support (including but not limited to public and private grants, gifts, contributions, bequests, or any income therefrom, income from endowments, funds received from the Massachusetts Department of Education's Bureau of Nutrition, or similar funding) to the extent that revenues and support are restricted to use in the Program;

(b)   the amount of unrestricted revenues and support voluntarily designated by the Contractor to defray the cost of Program services to a Department;

(c)   the fair market value of any public employees assigned to work in the Contractor's Program (including salaries, fringe benefits and travel allowances) and/or the occupancy of public facilities to the extent that they are available to the Program without charge or at less than fair market value;

(d)   any revenues and support (including but not limited to Supplemental Social Security Income, Food Stamps, Emergency Aid to the Elderly, Disabled and Children (EAEDC), reimbursements from third party payers, Client sliding fee scale payments) received by or available to the Contractor on account of Clients;

(e)   the amount of Commercial Income that the Contractor or Department may designate;

(f)   the value of revenues and support used to defray non-reimbursable costs; and

(g)   not-for-profit Contractor surplus revenue retention funds accrued in excess of the limitations of 808 CMR 1.03(7) which may be utilized at the discretion of the Department to reduce the Authorized Price or Maximum Obligation of the Commonwealth.
Office of Child Care Services (OCCS). An office of the Commonwealth established by M.G.L. c. 28A.
Program. The delivery of one or more discrete services in an organized and coordinated fashion in order to achieve contract objectives or a M.G.L. c. 71B private special education Program approved by DOE.
Reimbursable Operating Costs. Those costs reasonably incurred in providing the services described in the contract and/or, in the case of a Program approved under the provisions of M.G.L. c. 71B, in providing the services mandated by DOE or specifically included in an Authorized Price, with the exception of costs enumerated in 808 CMR 1.05 and costs excluded in the Authorized Price. Operating costs shall be considered “reasonably incurred”

only if they are reasonable and allocable using the standards contained in Federal Office of Management and Budget Circular A-122 or A-21, or successors thereto.

Related Party. Any person or organization satisfying the criteria for a Related Party published by the Financial Accounting Standards Board in Statement of Financial Accounting Standards No. 57 (FASB 57).
1.02:   continued
Restricted Funds. Those temporarily and permanently Restricted Funds derived from charitable contributions, as defined in the Uniform Financial Statements and Independent Auditor’s Report (UFR), which have been designated to a specific use by their donor. Funds which have been restricted as to application by the Contractor’s governing body are not considered restricted.
Sponsored. The financing of the delivery of a program of Human and Social services or a Human and Social service to a Client.
Subcontractor. An individual acting as a sole proprietor of an organization or organization which provides some or all of the needed Human or Social Services or operates a Program on behalf of a Contractor, provided, however, that the term Subcontractor does not include an individual (including a client) or a firm providing personnel services or non-direct client services, unless specifically provided for in the service contract or agreement. This term also includes sub-Subcontractors. The term human and social service as used in 808 CMR 1.02: Subcontractor does not include management and business support activities.
Submit or Submission. Unless otherwise provided, to deliver a document electronically, by hand or by depositing it with the US Post Office or other delivery service, postage pre-paid.
Uniform Financial Statements and Independent Auditor's Report (UFR). A uniform reporting system, established by DPS, consisting of basic financial statements prepared and audited in accordance with generally accepted accounting principles (GAAP) and generally accepted governmental auditing standards (GAGAS), supplemental schedules and other information as deemed necessary.
1.03:   General Provisions
(1)   Client Identification. No documents submitted to DPS shall include information that identifies a Client by name or by other means that includes personally identifiable information. Client identification numbers or another numbering scheme should be utilized.
(2)   Waiver of Regulations. Upon request, DPS may consider waiving the applicability of one or more provisions of 808 CMR 1.00, provided that all such requests: are in writing and signed by an authorized signatory; specify the transactions to which such waiver would apply and the specific provisions of 808 CMR 1.00 which are to be waived; and are accompanied by documentation and justification deemed sufficient by DPS to support the need for relief. Waivers do not affect the responsibility of a Department or Contractor to comply with other applicable regulations or statutes.

  1. CMR 1.00 Prohibitions. The failure of a Department or DPS to identify violations of 808 CMR 1.00 in determining or authorizing a price shall not be deemed a waiver of violations of 808 CMR 1.00 which are identified later.

(4) Price Limitations. The Commonwealth cannot be charged a rate or authorized price which is higher than the lowest fee charged to the general public or third party payor for human and social services except as follows:

  1. Where a client receiving Sponsored services from the department is charged a fee that the contractor has collected and the fee is calculated based upon that department’s approved sliding fee scale; or

  2. Where a provider has sufficient restricted charitable contributions designated by their donor to be used to offset the difference between the fee charged to a private paying client and the rate charged to the Commonwealth.

1.03:   continued
(5)   Reimbursement as Full Payment. Each Contractor shall, as a condition of accepting payment made by one or more Departments for services provided, accept the Authorized Price as full payment and discharge of all obligations for the services provided. There shall be no duplication or supplementation of payment from sources other than those expressly recognized or anticipated in the determination of the Authorized Price. Any Client Resources or third party payments made on behalf of a Client, not expressly recognized or anticipated in the computation of the Authorized Price, shall reduce the amount of the appropriate Department’s obligation for payment.

  1. Commercial Fee. For-profit contractors with authorized prices furnished via all compensation structures in all types of contracts are to be reimbursed in an amount not to exceed the contract reimbursable operating costs incurred by the contractor for the services provided to the Department pursuant to 808 CMR 1.00. Departments are permitted to prospectively negotiate a for-profit earnings allowance for the purpose of furnishing a Commercial Fee to for-profit contractors, which is in excess of the contract reimbursable operating costs for the services being procured. Departments are not required or expected to furnish a Commercial Fee, which is in excess of contract reimbursable operating costs to for-profit Contractors. Each contract executed between a department and a for-profit contractor must either a) explicitly indicate when a Commercial Fee has not been established by indicating that the earnings allowance is zero or b) clearly indicate the amount of the negotiated earnings allowance, by percentage or dollar amount, in the contract. If a contract contains language that does not establish either an earnings allowance of zero or a specific negotiated earnings allowance, then the for-profit contractor may not retain a Commercial Fee from such a contract. In addition, the for-profit contractor may not retain a Commercial Fee from a contract with deficit results of operations or from a cost reimbursement contract. Departments shall consider several approaches in developing a reasonable for-profit earning allowance in accordance with DPS policies and procedures issued pursuant to 808 CMR 1.00 and 801 CMR 21.00. The provisions of this language also apply to M.G.L. c. 71B approved private special education Programs and contracts that utilize non-negotiated unit rates established by Departments and the Division of Health Care Finance and Policy. DPS shall determine the Commercial Fee, if any, prospectively for M.G.L. c. 71B approved private special education Programs. Departments shall monitor the amount of Commercial Fee from the net surplus from Contract Revenues (or revenues received by M.G.L. c. 71B private special education Programs) and reimbursable costs retained by each for-profit Contractor in any given year and recoup funds or reduce future prices when appropriate in accordance with this regulatory provision and other guidance issued by DPS.

(7)   Not-for-Profit Contractor Surplus Revenue Retention. If, through cost savings initiatives implemented consistent with programmatic and contractual obligations, a non-profit Contractor accrues an annual net surplus from the revenues and expenses associated with services provided to Departments which are subject to 808 CMR 1.00, the Contractor may retain, for future use, a portion of that surplus not to exceed 5% of said revenues. The cumulative amount of a Contractor’s surplus may not exceed 20% of the prior year’s revenues from Departments. Surpluses may be used by the Contractor for any of its established charitable purposes, provided that no portion of the surplus may be used for any non-reimbursable cost set forth in 808 CMR 1.05, the free care prohibition excepted. DPS shall be responsible for determining the amount of surplus that may be retained by each Contractor in any given year and may determine whether any excess surplus shall be used to reduce future prices or be recouped.

(8)   Procurement of Contractor Furnishings, Equipment and Other Goods and Services. All procurements of furnishings, equipment and other goods and services by or on behalf of a Contractor shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. Capital Items, as defined in 808 CMR 1.02, shall be acquired through solicitation of bids and proposals consistent with generally accepted accounting principles.

1.03:   continued

(9) Fiscal Conduits Prohibited. No procuring Department or Contractor providing social, rehabilitative, health or M.G.L. c. 71B approved private special education services for the Commonwealth shall enter into any written or verbal agreement to award a contract or use or modify the terms or intent of an existing contract:
(a) to acquire any goods for the Procuring Department’s use;

(b) to defray the expenses of services rendered by individuals hired or supervised in the daily performance of their work by personnel in the classified service of the Commonwealth; or

(c) solely to acquire payroll or fiscal management for a Program of Client services operated by the Commonwealth or any third party. This third party exclusion shall not apply to entities that provide payroll or fiscal management to programs directly operated by the Contractor.
OSD may refer matters concerning Departments, Contractors, or individuals determined to be responsible for entering into such agreements for investigation pursuant to M.G.L. c. 266, ss. 67A, 67B and other applicable laws.
1.04:   Recordkeeping and Reporting Requirements
(1)   Recordkeeping. The Contractor and its Subcontractors shall keep on file all data necessary to satisfy applicable reporting requirements of the Commonwealth (including DPS, the Division of Health Care Finance and Policy and Departments), and financial books, supporting documents, statistical records, and all other records which reflect revenues associated with and costs incurred in or allocated to any Program of services rendered under the Contract. The Contractor and its Subcontractors shall maintain records of all types of expenses and income or other funds pertaining to the Program paid to the Contractor by every source, including from each Client. Books and records shall be maintained in accordance with generally accepted accounting principles as set forth by the American Institute of Certified Public Accountants (AICPA); which for not-for-profit Contractors shall be the Industry Audit Guide for Audits of Voluntary Health and Welfare Organizations, unless otherwise provided in the UFR. In addition, personnel records shall be maintained for each employee in accordance with generally accepted accounting principles recommended by the AICPA and sufficient to meet the requirements of M.G.L. c. 151, the Fair Labor Standards Act of 1938 and contract terms. If the Contractor or a Subcontractor receives any federal funds from the Commonwealth, directly or through subcontracts, the Contractor or Subcontractor shall also keep data necessary to satisfy Federal Office of Management and Budget (OMB) Circular A-133, or successor provision and shall also maintain books and records in accordance with OMB Circular A-110 and OMB Circular A-122, or successor provisions.
(2)   Annual Audit. Each Contractor and Subcontractor shall, on or before the 15th day of the fifth month after the end of its fiscal year, Submit electronically to DPS a UFR or a certification of exemption, in accordance with the standards and instructions contained in the UFR. The UFR and related materials submitted by a Contractor to DPS shall be certified under pains and penalties of perjury as true, correct and accurate by a Massachusetts independent public accountant engaged by the Contractor or by an authorized signatory for the Board of Directors or officers of the corporation, the Executive Director, or Chief Financial Officer of the Contractor.

  1. Other Reporting Requirements. In addition to reports required by contract, secretariats are authorized to develop and implement procedures and reporting requirements for Contractor qualification and risk management purposes.

(4)   Related Party Transactions. Notice of all Related Party transactions (including the relationship of the Related Party and a description of the nature and amount of the transaction) shall be made in writing to DPS and the Department(s) prior to their execution. In the case of an M.G.L. c. 71B Approved Private School Program, notification shall be given to DPS and DOE. If disclosure was made through a response to a Request for Response pursuant to 801 CMR 21.00, within an executed contract, or through other formal means, such disclosure will satisfy the requirements of 808 CMR 1.04(4). Prior written disclosure

1.04:   continued
shall not be required where the total value of transactions with a Related Party is less than $100 within the year, and shall not be required where the transaction is a gift to the Contractor from an official, administrator or manager of the Contractor.

(5)   Inventory of Equipment and Furnishings and Other Goods. Any Contractor in possession of Capital Items, as defined in 808 CMR 1.02 shall label, maintain and keep on file a written inventory of the property in accordance with generally accepted accounting principles. The Department may specify additional inventory requirements for Capital Items acquired with funds from the Commonwealth. Upon termination of the Contractor’s contracts with the Department, Capital Items acquired with Commonwealth funds under a capital budget shall be subject to the following disposal standards:

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