Alternative Instruction, how many hours do suspended students need?

Starting in July of 2023, the hours a District is required to provide tutoring to students in a home, hospital or institutional setting other than a school increased to two (2) hours per day for elementary students and three (3) hours per day for secondary school students; an increase of one hour per day. This increase is memorialized in the Commissioner’s Regulations at 8 NYCRR 100.22. In response to a question about why this change is necessary, NYSED issued a statement that, in sum and substance, the increase is necessary to provide these students with the “opportunity to continue to progress at a similar rate to their peers” who are attending school on a daily basis.

Section 3214 of the N.Y. Education Law has long required students of compulsory age suspended from school to receive alternative instruction. The Commissioner has held that such instruction must be substantially equivalent to the instruction the student would receive if attending school. The Commissioner has determined a number of times over the years that five hours per week for elementary students, preferably one hour per day, and ten hours per week for secondary students, preferably two hours per day, was the minimum standard. With the promulgation of the new Regulation on home instruction, however, we advised clients that we anticipated these same increases in minimum hours of instruction to apply to students suspended from school for disciplinary reasons. Now, that forecast has proven true.

On October 10, 2023, NYSED’s Office of Counsel issued Formal Opinion of Counsel No. 243, addressing tutoring hours for suspended students. The Opinion of Counsel declares that it makes sense to apply the reasoning for the addition in tutoring hours for instruction provided to students in home, hospital or institutional settings to students missing school due to suspension. As was always the case, the new tutoring hours are a floor, not a ceiling and actual alternative instruction should be determined on a case-by-case basis. Based on the Opinion of Counsel, suspended students should now receive, at a minimum, two hours of tutoring a day for elementary students and three hours of tutoring a day for secondary students. According to the Office of Counsel, prior opinions of the Commissioner are inconsistent with the new Regulation.

While the basis for the change is understandable, this could prove difficult for Districts to implement. Some students may not be able to maintain attention for two or three hours of tutoring per day. The Regulation for home, hospital and institutional instruction allows for the minimum hours of instruction to be reduced based on the individual student’s needs and abilities and allows for parents to work with educators to create a plan for instruction. The Opinion of Counsel does not address whether such reduction would be permissible for suspended students, however it does recognize that alternative instruction for students medically unable to attend school should be determined on a case-by-case basis. The strong presumption is going to be for the minimum required hours; any deviation based on individual student need will require documentation of the rationale.

For students with disabilities suspended from school, remember that there also may be need for special education services and the Interim Alternative Educational Setting (“IAES”). Any related services provided to a student suspended or removed from school will be in addition to the minimum required alternative instruction. Related services time is not carved out of the tutoring hours.

We understand that this change will not be easily implemented, finding tutors is difficult and the new hour requirements could make it more of a challenge. If you have any questions about tutoring requirements for suspended students, please give us a call.