(a) If an Approved Private School Program is located outside of the Commonwealth of Massachusetts in a state which has an established state rate or price setting mechanism,
DPS will authorize as the price to be paid by Commonwealth Departments the price established, authorized or approved by the state in which the Program is located, provided that the price is the lowest charged by the Contractor for the Program. In order for DPS to authorize a price, the following must be submitted to DPS by the Contractor:
A UFR or certificate of exemption for the most recent reporting year, in accordance with the UFR instructions;
A certification from the Contractor that the price requested to be authorized is the lowest charged by the Contractor for the Program; and
A copy of the price authorization or approval by the state in which the Program is located, including the effective dates of the price.
If the requested price is not the lowest charged by the Contractor for the Program, the Contractor must identify the amount of the lowest price charged, which will then be authorized by DPS.
(b) If an Approved Private School is located outside the Commonwealth of Massachusetts in a state where there is no established state rate or price setting mechanism, DPS will determine and authorize a Program price pursuant to the provisions of 808 CMR 1.06(1) or (3), as applicable.
(3) Price Authorization For New or Reconstructed M.G.L. c. 71B Approved Private School Programs. (a) Upon the request and recommendation of DOE, DPS will review a proposed Program price for a new or reconstructed M.G.L. c. 71B Approved Private School Program. A new Program is one approved by DOE for the first time as such. A reconstructed Program is one currently approved by DOE but the service configuration of which has been altered and those alterations have been approved by DOE. DPS may require that information sufficient for its review, including format of the information, be submitted with the DOE request and recommendation. After review, DPS may authorize the proposed price, authorize an adjusted price, or suspend action pending the receipt of additional information.
If the proposed price is for a reconstructed M.G.L. c. 71B Approved Private School Program, the school must notify all entities, including state departments and superintendents of Local Education Authorities, which currently purchase the Program, that it will be requesting an increase, including the amount of the requested price, by October 1. DPS will authorize an adjusted price no earlier than July 1 of the following fiscal year upon receipt of DOE approval and a completed application from the Approved Private School program. If the application process continues into a subsequent fiscal year(s) and the reconstruction includes changes which result in a price higher than the original requested tuition price, an additional notification process to all entities named above must occur by October 1 for each subsequent year until the price is authorized by DPS.
A price authorized under the provisions of 808 CMR 1.06(3) for a new M.G.L. c. 71B Approved Private School Program is subject to review and adjustment after six months based upon a review and analysis of the Contractor’s actual expenditures. Within 60 days of the last day following the sixth month of the effective date of the price, or the date that the Program becomes operational, whichever is later, the Contractor must submit, in UFR
format, actual expenditure and revenue reports according to the instructions in the UFR, including an accountant’s review report (AICPA Professional Standards Statement on Auditing Standards No. 71 (SAS No. 71)). Within 60 days of the receipt of the required materials, DPS shall notify the Contractor of any adjustments to be made to the Authorized Price.
(4) Price Adjustment for M.G.L. c. 71B Approved Private School Programs - Extraordinary Relief.
(a) Conditions for Consideration of Extraordinary Relief. Where an Approved Private School experiences additional expenses for its Program during the price year which are necessary for the provision of the mandated program of services and which it cannot absorb within its Authorized Price, the Contractor may apply to DPS for a price adjustment for the Program during the price year if the expenses are necessary to:
1. meet federal or state statutory, or local regulatory requirements, including DOE or OCCS regulations and licensing requirements not currently included in the Authorized Price, or
account for unanticipated emergencies beyond the reasonable control of the
(b) To be eligible for consideration for extraordinary relief the conditions described in 808 CMR 1.06(4)(a) must have resulted from unforeseen events occurring after July 1 of the current Fiscal Year.
(c) Required Documentation. To be eligible for consideration for extraordinary relief, the Contractor’s request must include the following:
1. a detailed description of the situation which has caused the Contractor to seek extraordinary relief;
2. price year income and expenses to date for the Approved Private School Program(s) for which extraordinary relief is being sought;
3. a copy of the Contractor’s most recently completed fiscal year UFR;
4. a copy of the Approved Private School Program budget(s) for the current fiscal year using the components contained in the UFR and instructions thereto;
5. a listing of the Approved Private School Program purchasers for the current Fiscal Year, including the number of students for each purchaser;
6. the average enrollment, by month, of the Approved Private School Program(s) for the most recently completed 12 month period;
7. substantial evidence that the Contractor’s resources are insufficient to cover the expenses for which extraordinary relief is sought, including substantial evidence that the Contractor has exhausted all programmatic and financial resources. For the purposes of 808 CMR 1.06(4)(c)(7), “programmatic and financial resources” shall not include unrestricted funds or revenues as defined in the instructions to the UFR which have not been specifically designated for use by the Approved Private School Program by the Contractor, but shall include, and not be limited to, surplus revenues as determined by DPS under 808 CMR 1.03(7).
9. citations or notices of violations of federal, state or local statute or regulation supporting the request, or a statement from the appropriate authority that it requires
the expense or item for which extraordinary relief is being sought;
10. documentation that the current operating expenses are in compliance with the reimbursable cost standards contained in 808 CMR 1.02 and 1.05;
11. the Contractor’s requested price;
12. documentation that the Contractor has notified all entities which currently purchase the Approved Private School Program that it has requested extraordinary relief, and the amount of the requested price; and
13. where a Contractor’s request includes expenses for additional Approved Private School Program staff, a staff listing, prepared using position titles contained in the instructions to the UFR and containing the number of proposed full time equivalents for each position title. Such a staff listing shall include a statement, signed by an authorized representative of DOE and/or OCCS indicating that the agency’s regulation requires the listed staffing level and the number of students the staffing is intended to serve.
(d) Submission. The Contractor shall Submit its request, together with all the required documentation under 808 CMR 1.06(4)(c)(1) through (13) to DPS, with a copy to DOE. A request will be deemed incomplete until all of the required documentation is submitted, and no action will be taken by DPS on an incomplete application. DPS may request additional or clarifying information from the Contractor. Should these requests not be satisfied within 21 Days of the postmark of such request, extraordinary relief shall not be granted.
(e) Adjusted Price. DPS will take action on a complete request within 60 Days of the receipt of materials required under 808 CMR 1.06(4)(d). Should DPS determine that the Contractor’s request meets the requirements of 808 CMR 1.06(4)(a), (b) and (c) and that extraordinary relief should be granted, DPS will develop and authorize a price subject to the following conditions:
1. any requested expenses which do not qualify under 808 CMR 1.06(4)(a)(1) or (2) will not be included;
2. any requested expenses which are deemed to be non-reimbursable by DPS using the criteria contained in 808 CMR 1.05 will not be included;
3. any requested adjustments to administrative expenses will not be included;
4. the additional amount included in any adjusted price for any given item will not exceed the amount of the difference between the Contractor’s expense for the item in the most recently completed Fiscal Year, and the current year’s anticipated expense, on a per student basis; and
5. no adjusted price will be effective prior to the date of authorization, and no price shall include expenses incurred prior to the date of authorization.
(5) Administrative Review.
(a) DPS may conduct a review of Approved Private School Programs and/or Authorized Prices for good cause, including but not limited to the following reasons: failure to incur costs for items included in the initial price authorization process or later adjustments, failure to provide the approved or required Program services, failure to implement approved or required programmatic or non-programmatic changes included in the price year Reimbursable Operating Costs, or use of Department funds on non-reimbursable costs as defined in 808 CMR 1.05, as determined by DPS.
(b) DPS shall initiate administrative review by notifying the Contractor that it intends to conduct an administrative review and the reason(s) for the review. DPS may require the Contractor and/or Department(s) to Submit books, records and other information it deems necessary for its review. Such requests shall be in writing, and requested materials shall be submitted to DPS within 21 Days of the request.
(c) DPS shall notify the Contractor and the Department(s) of the results of the administrative review. The review may result in an amendment to an Authorized Price.
(6) Contractor Right to Appeal.
Any Contractor aggrieved by the action of DPS relative to action taken under 808 CMR 1.06(1), (2), (3), (4) or (5)(c), who desires a review thereof, may file an appeal with the Division of Administrative Law Appeals within 30 Days of notice of DPS’s action. The question on appeal shall be whether DPS, in taking the challenged action, has properly applied its regulations.
(b) The pendency of an appeal under 808 CMR 1.06(6) does not limit DPS’s right to undertake an administrative review of any Authorized Price or to take any other corrective action.
(7) Price Authorization in Special Cases.
Individual Prices. DPS will develop, issue, and amend, as necessary, instructions for the authorization of individual prices for services to students enrolled in Approved Private School Programs when that student has a need for additional or unique services which are not provided by the Approved Private School Program.
Specialized Placement Price Authorization. DPS will develop, issue and amend, as necessary, instructions for the development and authorization of prices for individual students who are placed, after approval by DOE pursuant to 603 CMR 28.500 or successor provisions thereto, by a Department in a private school which has not been
approved under M.G.L. c. 71B. These placements are also referred to as “sole source” placements.
Special Circumstances. With the consent of DOE and the Contractor, DPS may authorize a price determined in any manner consistent with St. 1993, c. 110, § 274, as amended, should DPS determine that price determination methods under 808 CMR 1.06 are inapplicable to the private school or produce a result which is inconsistent with St. 1993, c. 110, § 274, as amended.
Critical Direct Care Positions for M.G.L. c. 71B Approved Private School Programs. Upon application to DPS by an Approved Private School Program, DPS may adjust the current Authorized Price to accommodate compensation adjustments for the following direct care positions, as defined in the Fiscal Year 1999 UFR Audit and Preparation Manual:
Direct Care/Program Staff I;
Direct Care/Program Staff II;
Direct Care/Program Staff Supervisor;
Special Education Teacher.
All Authorized Price adjustments will be governed by the DPS Critical Direct Care Staff Compensation Policy for M.G.L. c. 71B Approved Private School Programs. All requests for Authorized Price adjustments under 808 CMR 1.06(7)(d) will include a statement, signed by an authorized representative of DOE, indicating that the number of staff in each position for which an adjustment in compensation is sought is consistent with DOE approval.
Any funds received pursuant to an adjustment in the Authorized Price made under 808 CMR 1.06(7)(d) will be used for the purpose requested. Any such funds not so used, as determined by DPS through the Administrative Review process set forth in 808 CMR 1.06(5), will be subject to recoupment.
1.07: Severability The provisions of 808 CMR 1.00 are severable. If any provision of 808 CMR 1.00 or its application is held to be illegal, unenforceable or void, Departments and Contractors shall be relieved of the obligations under that provision and all other provisions shall remain in full force and effect. Such invalidity shall not be construed to affect the application of the provision under circumstances other than those held invalid.
808 CMR 1.00: M.G.L. c. 29, § 29B; St. 1993 c. 110, § 274, as amended by St. 1993, c. 151, § 113, St. 1993, c. 296, § 3 and St. 1993, c. 495, § 99.
Effective 11/17/06 Reprintedfrom the official Secretary of the Commonwealth version.