Adoption Date: 5/3/2011


On July 29, 2009, the State Education Department (SED) issued a memorandum on contracts for instruction that stated districts cannot contract with private entities to deliver "core educational programming/instructional services" to students. Subsequently, on June 2, 2010, SED issued a new question and answer guidance document for school districts to use as a resource for planning for the school year.

Core Instructional Services

Generally, core instructional services comprise those instructional programs which are part of the regular curriculum of the School District and to which students are entitled as part of a free public education. This would include both general and special education programs and related services which school districts are required by law to provide as part of a program of public education and for which a certification area exists and to which tenure rights apply pursuant to Education Law and/or Commissioner's Regulations.

Therefore, core instructional services include those in which students are provided classroom instruction to meet State learning standards in the seven general curriculum areas: English language arts; mathematics, science and technology; social studies; languages other than English; the arts; health, physical education and family and consumer sciences; and career development and occupational studies. Instruction in courses for which credit is awarded toward a high school diploma would also constitute "core instructional services." Core instruction includes special classes for students with disabilities.

Core instruction does not include other supplemental instructional services, such as tutoring and enrichment programs that are not offered for high school credit; advanced courses such as college courses that are beyond the regular high school curriculum; and services, such as online instructional services and distance learning, that assist teachers in providing instruction in their classrooms.

Contracts with a Non-Profit or Other Entity

The District may contract with a non-profit or other entity to provide distance or online learning provided that the distance or online learning program is used as a supplementary or additional resource to assist the District's certified teachers in delivering instruction. In these situations, the distance or online program itself would not constitute "core instruction" as described above.

The School District may contract with certain entities where specifically authorized by statute or regulation, or where contracting is necessary to carry out duties imposed on the School District by State or federal law.

Contracts for the Provision of Special Education "Related Services" for which a Certification

Area Exists and to which Tenure Rights Apply Pursuant to Education Law and/or

Commissioner's Regulations

The District may contract for the provision of special education "related services" for which a certification area exists and to which a tenure are applies but only in limited circumstances and with qualified individuals over whom the District has supervisory control.

Pursuant to the federal Individuals with Disabilities Education Act (IDEA), the School District is required to provide students with disabilities with a free appropriate public education (FAPE). The Board of Education must provide related services as part of the continuum of special services and programs available to students with disabilities to enable such students to benefit from instruction. Related services include: audiology, counseling including rehabilitation counseling services, occupational therapy, physical therapy, speech pathology, certain medical services, psychological services, school health services, school nurse services, school social work, assistive technology services, interpreting services, orientation and mobility services, parent counseling and training and other appropriate developmental, corrective or other support services and appropriate access to recreation.

However, the District also has obligations under the IDEA and Article 89 of the Education Law to deliver the services necessary to ensure that students with disabilities receive FAPE. SED recognizes that there will be situations in which school districts will not be able to deliver FAPE to students with disabilities without contracting with independent contractors. Where a School District is unable to provide the related services on a student's individualized education program (IEP) in a timely manner through its employees because of shortages of qualified staff or the need to deliver a related service that requires specialized expertise not available from School District employees, the Board of Education has authority under Education Law to enter into contracts with qualified individuals as employees or independent contractors to provide those related services. Commissioner's Regulations requires that related services be provided by individuals with appropriate certification or license in each area of related service.

In order to ensure that such arrangements are not used to circumvent New York State's teacher tenure laws, the District must document that it would retain supervisory control over the individual and that, despite reasonable efforts, it has been unable to provide such services by hiring new employees or utilizing existing employees, or through any of the contractual arrangements authorized by Education Law, including contracts with other school districts, BOCES, approved state or state-supported schools, and approved private residential and nonresidential schools both inside and outside New York State.

Finally, if the District, after exhausting the steps outlined above, finds it necessary to contract with individuals, it should do so only for a period of one school year at a time. Before any such contract can be extended, or a new contract entered, the District must again take reasonable efforts to provide such services as described above.

Other Contracts for Instruction

This policy is not intended to be an exhaustive analysis, nor is it intended to cover every possible situation and/or educational program in which contracts may be contemplated.

The District will review all contractual or informal arrangements with its school attorney(s) to ensure that it is in compliance with applicable law and/or regulations.

Policy References:
20 United States Code (USC) Section 1401(26)
Education Law Sections 1604(30), 1709(33), 1804(1), 1805, 1903(1), 2503(1), 2503(3), 2554(1), 2554(15)(a),
4401(2), 4401(2)(k), and 4402(2)(b)
8 New York Code of Rules and Regulations (NYCRR) Sections 100.1, 100.2, 100.3, 100.4, 100.5, 200.1(qq),
and 200.6(b)(3)

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