Office of Instructional Support
In June 2009, the Department issued a Memorandum to provide clarifying information related to contracts for core instruction. In 2010, a Questions and Answers (Q&A) document was released to provide additional information.
In light of recent regulatory amendments related to virtual instruction, the changes to the educational and technological landscape since 2009, and continued questions on this subject, the Department has revised the 2010 Q&A document to provide updated guidance on this important topic. This Q&A document supersedes the June 2010 Q&A document titled Q&A Related to Contracts for Instruction.
Consistent with case law, school districts and BOCES do not have the authority to contract with independent contractors for instructional services which are the very core and function of a school district (see Board of Cooperative Educational Services for the Second Supervisory District of Erie, Chautauqua and Cattaraugus Counties, et al. v. University of the State of New York, et al., 40 AD3d 1349; Appeal of Boyd, 51 Ed Dept Rep, Decision No. 16,364; Appeal of Barker, et al., 45 id. 430, Decision No. 15,375; Appeal of McKenna, et al., 42 id. 54, Decision No. 14,774).
As with the prior Q&A, this document 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.
It is recommended that school and district leaders utilize this guidance for planning purposes, and to review contractual arrangements with their local attorneys to ensure they are in compliance with the law. If questions arise on specific contracts or agreements, school and district leaders should consult with their attorneys.
- For information on virtual learning, please see the Office of Educational Design and Technology’s website, or contact the office at edtech@nysed.gov or 518-474-5461.
- For information on K-12 educational program requirements, please see the Office of Standards and Instruction’s website or contact the office at P12StandardsInstruction@nysed.gov or 518-474-5922.
- For information on special education program requirements for students with disabilities, please contact the Office of Special Education at speced@nysed.gov or 518-473-2878.
- For information on English as a New Language and Bilingual Education services, please contact the Office of Bilingual Education and World Languages at obewl@nysed.gov or 518-474-8775.
- For information on home, hospital, or institutional (formerly homebound) instruction, or instruction for students who have been suspended, please see the Office of Student Support Services’ website, or contact the office at StudentSupportServices@nysed.gov or (518) 486-6090.
We thank you for all that you do to ensure a high-quality, culturally and linguistically responsive, equitable education for the students of New York State.
THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234
QUESTIONS AND ANSWERS RELATED TO CONTRACTS FOR CORE INSTRUCTION
Updated September 2024
Q1. What is “core instruction?”
A1. Generally, core instruction comprises those courses and instructional programs which are part of the regular educational program of the school district, and to which students are entitled as part of a free public education. This includes 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.
The Commissioner has found that “establish[ing], conduct[ing], manag[ing] and maintain[ing] a course of instruction in general academic fields … is the very core function of a school district” (Appeal of McKenna, et al., 42 Ed Dept Rep 54, Decision No. 14,774). Therefore, core instruction is classroom instruction to meet State learning standards in the curriculum areas as defined by Commissioner’s regulations (see 8 NYCRR §§100.1, 100.2, 100.3, 100.4, 100.5). Core Instruction includes instruction for grades K-8, special classes for students with disabilities and courses for which credit is awarded toward a high school diploma.
Core instruction does not include other supplemental instructional services, such as tutoring, enrichment programs, or before or after care, or courses that are not offered for high school credit, or services that assist teachers in providing instruction in their classrooms (see Appeal of McKenna, et al., 42 Ed Dept Rep 54, Decision No. 14,774 [core instruction does not include “peripheral services such as security services or a recreational program …”]).
Q2. Can a school district contract with private entities to provide core instruction through employees of that private entity?
A2. No. School districts lack the authority to contract with a private entity to provide core instruction (as described in A1) through employees of that private entity (Appeal of Boyd, 51 Ed Dept Rep, Decision No. 16,364; Appeal of McKenna, et al., 42 id. 54, Decision No. 14,774). This includes social work services (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375), psychological services (Matter of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236), or substitute teachers (Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422; pet. to review disms’d, Kelly Services, Inc. v. USNY, et al., Sup Ct Albany County, 5/22/07, Index No. 7512-06).
Q3. Can a school district contract with a private entity to provide virtual core instruction through employees of that private entity?
A3. No. Just as with traditional in-person (also referred to as “face-to-face”) instruction, school districts lack the authority to contract with a private entity to provide core instruction (as described in A1) through employees of that private entity (as described in A2) in a virtual or blended modality.
Q4. Can a school district contract with a private entity to provide virtual instructional services (e.g., digital texts, audio, photos, video), applications, learning management systems, complete digital curricula and courses, and supplemental instruction)?
A.4. Yes. Districts are allowed to contract with a private entity to provide virtual instructional services, provided the virtual instructional services are used as a supplementary or additional resource to assist an appropriately certified teacher employed by the school district, another school district pursuant to a shared service agreement, or a Board of Cooperative Educational Services (“BOCES”) pursuant to a contract as authorized by Education Law §1950, in providing the delivery of instruction, as required by 8 NYCRR 100.2(u)(4). Virtual instructional services may include (but are not limited to) digital curricular materials, digital content (e.g., digital texts, audio, photos, video), applications, learning management systems, complete digital curricula, and supplemental instruction). These supplementary and additional resources are not considered core instruction as described in A1.
Q5. Can a school district contract with a private entity to provide temporary virtual core instruction through employees of that private entity in circumstances when there is a documented teacher shortage, and/or the district is unable to fill a teaching position despite best efforts?
A5. No. Even in temporary situations, districts do not have the authority to contract with private entities to provide core instruction, whether in-person, virtual or blended modality, as described in A2 and A3 above.
Q6. Can school districts contract with other NYS public school districts or BOCES to provide core virtual instruction?
A6. Yes. Pursuant to Commissioner’s regulations, districts may contract with a BOCES, where authorized pursuant to Education Law §1950, and/or enter into shared service agreements with other districts to provide core instruction through virtual learning, provided the instruction is aligned with Commissioner’s regulations.
Q7. When can school districts contract with a non-profit or other entity?
A7. School districts 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. Examples of specific statutes and regulations authorizing contracting with other entities include:
- Education Law §3202(6) requires that children cared for in a hospital or other institution for the care, custody and treatment of children, other than a school, must be provided with educational services by their school district of residence. This provision authorizes such school districts to provide these services by a tutor employed by the district, by contract with a school connected with such hospital or institution, or by contract with the local public school district in which such hospital or institution is located.
- Education Law §3602-e authorizes school districts with approved pre-kindergarten program plans to enter into any contractual or other arrangement necessary to implement such plans. Eligible agencies that may provide pre-kindergarten services pursuant to an approved pre-kindergarten program plan include a provider of childcare and early education, a day care provider, early childhood program or center, or certain community-based organizations.
- Education Law §§4401(2) and 4402(2)(b) authorize school districts to enter into contracts for special education services or programs, including related services, with other school districts, BOCES, State-operated and State-supported schools, approved private residential and nonresidential schools both inside and outside New York State, and the State University at Binghamton for non-residential special education at the Children’s Unit.
- Education Law §4401(2)(n) authorizes school districts to enter into agreements for the provision of transition services (as defined in Education Law §4401[9]) in programs such as vocational training programs approved by the Department or by another State agency.
- Section 100.2(q)(2) of the Commissioner’s Regulations authorizes arrangements with institutions of higher education to provide advanced courses which convey high school credit and college credit.
Q8. Can school districts contract 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?
A8. Yes, but only in limited circumstances and with qualified individuals over whom the district has supervisory control.
Under the federal Individuals with Disabilities Education Act (“IDEA”), school districts are required to provide students with disabilities with a free appropriate public education (“FAPE”). A 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 (see Education Law §4401[2][k]; 8 NYCRR §200.1[qq]). 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 (20 USC §1401[26]; Education Law §4401[2][k]).
In Appeal of Barker and Pitcher, the Commissioner held that school districts do not have general authority to contract with private independent contractors to provide school social work services (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375). However, that case involved a school district that abolished a tenured school social worker position and then contracted with a for-profit corporation to provide similar services (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375). Thus, the decision was based on both: (1) the board of education’s need to exercise supervisory control over instructional staff; and (2) the replacement of a tenured position, in short order, with contracted, private services. Contracting cannot be used as a vehicle for evading the tenure laws or teacher certification requirements.
However, school districts have obligations under the IDEA and Article 89 of the Education Law to deliver the services necessary to ensure that students with disabilities receive FAPE. The Department 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 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 §§1604(30), 1709(33), 2503(3), 2554(15)(a) and 4402(2)(b) to enter into contracts with qualified individuals as employees or independent contractors to provide those services (see also §§1804[1], 1805, 1903[1], 2503[1], 2554[1]). Section 200.6(b)(3) of the Commissioner’s regulations require that providers of related services hold appropriate certification.
Q9. What documentation should be created to ensure contracts are not being used to circumvent New York State’s teacher tenure laws?
A9. In order to ensure that such arrangements are not used to circumvent New York State’s teacher tenure laws, a school district should, on a yearly basis, document: (1) how it will retain supervisory control over the individual; and (2) its prior efforts to secure such services by hiring new employees, utilizing existing employees, or utilizing contractual arrangements authorized by Education Law §4401(2) (e.g., contracts with other school districts, BOCES, approved state or state-supported schools, and approved private residential and nonresidential schools inside and outside New York State). Any contract with qualified individuals should not exceed one school year. Please note that before any such contract can be extended, or a new contract entered, school districts must again take reasonable efforts to provide such services as described above.
Q10. Can districts contract for the provision of special education related services, such as occupational therapy and physical therapy (“OT/PT”), for which a certification area does not exist and to which tenure rights do not apply pursuant to Education Law and/or Commissioner’s regulations?
A10. Yes. The related services of OT/PT are not delivered by certified personnel who have tenure rights under Education Law. Therefore, the considerations underlying the contracting limitations described above do not apply to related services such as OT/PT and other specialized services (Education Law §§1604(30), 1709(33), 2503(3), 2554(15)(a) and 4402(2)(b); see also §§1804[1], 1805, 1903[1], 2503[1], 2554[1]).
Q11. Can districts contract for the provision of transition services for students with disabilities with IEPs?
A11. Yes. Pursuant to Education Law §4401(2)(n), special education includes “formalized agreements” for the provision of transition services in programs such as career and technical education programs (previously referred to as vocational training programs) approved by the Department or by another State agency (see A6). Other transition services might include job coaching and work-based learning.
Q12. Can school districts contract for the provision of English as a New Language and Bilingual Education services for which certification areas exist and to which tenure rights apply pursuant to Education Law and/or Commissioner’s regulations?
A12. Yes, but only in limited circumstances and with qualified individuals over whom the district has supervisory control.
Under Title VI of the Civil Rights Act of 1964, school districts are required to take affirmative steps to address language barriers so that English Language Learners (ELLs) may participate meaningfully in their schools’ educational programs. A school district must provide a program of bilingual education or English as a New Language to enable such students to benefit from instruction (see Education Law §3204(2-a); 8 NYCRR § 154-2.3).
The Department recognizes that there will be situations in which school districts will not be able to deliver language acquisition services to English Language Learners without contracting with independent contractors. Where a school district is unable to provide ENL or Bilingual Education services in a timely manner through its employees because of shortages of qualified staff, the board of education has authority under Education Law §§1604(30), 1709(33), 2503(3), 2554(15)(a) and 3204(2-a) to enter into contracts with qualified individuals as employees or independent contractors to provide those services. Section 154-2.2(p)-154-2.2(r) of the Commissioner’s regulations require that providers of home language arts instruction and ENL services hold appropriate certification. In order to ensure that such arrangements are not used to circumvent New York State’s teacher tenure laws, a school district should, on a yearly basis, document: (1) how it will retain supervisory control over the individual; and (2) its prior efforts to secure such services by hiring new employees, utilizing existing employees, or utilizing contractual arrangements authorized by Education Law §3204(2-a)(2) (e.g., contracts with other school districts or BOCES). Any contract with qualified individuals should not exceed one school year.
Q13. Can districts contract for the instruction of suspended students?
A13. Yes, but only in limited circumstances and with qualified individuals over whom the district has supervisory control.
Education Law §3214(3)(e) requires school districts to provide alternative instruction to students of compulsory school age who are suspended from school. Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of J.B.W., 62 Ed Dept Rep, Decision No. 18205; Appeal of S.U., 57 id. Decision No. 17,159; Appeal of R.S., 48 id. 215, Decision No. 15,841), and equivalency will be determined on a case-by-case basis (Appeal of J.B.W., 62 Ed Dept Rep, Decision No. 18205; Appeal of D.F.B., 43 id. 496, Decision No. 15,064; Appeal of A.L., 42 id. 368, Decision No. 14,883).
Because alternative instruction is the only form of instruction that suspended students will receive during the term of the suspension, this constitutes core instruction for which the district cannot contract with a private entity (see A1, A2). Where a school district provides alternative instruction within its school building(s), such instruction must be provided by appropriate, qualified district staff. However, under limited circumstances in which alternative instruction for suspended students is either not offered within a district’s school building(s) or the district lacks qualified staff or is otherwise unable to assign existing qualified staff to provide such instruction at an alternate location (e.g., the student’s home or through virtual learning), it may be necessary for the district to contract with a qualified individual to provide such instruction. Because districts are required by state law to provide resident students with a free public education, a school district’s authority to enter into contractual arrangements where necessary to deliver such services would be grounded in Education Law §§1604(30), 1709(33) and 2503(3), which authorize boards of education to “have all powers reasonably necessary … to discharge duties imposed expressly or by implication” by statute (see also §§1804[1], 1805, 1903[1], 2503[1], 2554[1], 2554[15][a]).
Before contracting to employ qualified individuals to provide instruction to suspended students, a school district is required to satisfy, and should document, the requirements described in A9 above on a yearly basis.
Q14. Can districts contract for the provision of instruction for students in a home, hospital, or institutional setting other than a school (previously known as homebound instruction)?
A14. Yes, but only in limited circumstances and with qualified individuals over whom the district has supervisory control.
When students are unable to participate in regular classroom instruction due to illness, injury, and/or disability, they may require that instruction be provided at their home or another alternate location, or through virtual learning. Under limited circumstances in which the district lacks qualified staff or is otherwise unable to assign existing qualified staff to provide such instruction at the student’s home or another alternate location, or through virtual learning, it may be necessary for the district to contract with a qualified individual to provide such instruction. Because districts are required by state law to provide resident students with a free public education, a school district’s authority to enter into contractual arrangements where necessary to deliver such services would be grounded in Education Law §§1604(30), 1709(33) and 2503(3), which authorize boards of education to “have all powers reasonably necessary … to discharge duties imposed expressly or by implication” by statute (see also §§1804[1], 1805, 1903[1], 2503[1], 2554[1], 2554[15][a]).
Before contracting to employ qualified individuals to provide instruction to students in a home, hospital, or institutional setting, a school district is required to satisfy, and should document, the requirements described in A9 above on a yearly basis.