The Private Tutor Option

Although most families in Pennsylvania homeschool under the PA Home Education Law, there are several other options. Perhaps the most popular is the PA private tutor provision, which, unlike the home education law, does not require standardized testing or routine portfolio review. Parents who hold a PA teaching certificate, or who hire a private tutor who does, might qualify to use this provision. Read on for details.

The law says:

"…Regular daily instruction in the English language, for the time herein required, by a properly qualified private tutor, shall be considered as complying with the provisions of this section.

For the purposes of this section, "properly qualified private tutor" shall mean
a person who is certified by the Commonwealth of Pennsylvania to teach in the public schools of Pennsylvania;
who is teaching one or more children who are members of a single family;
who provides the majority of the instruction to such child or children;
and who is receiving a fee or other consideration for such instructional services.

No person who would be disqualified from school employment by the provisions of subsection (e) of section 111 may be a private tutor, as provided for in this section.
The private tutor must file a copy of his Pennsylvania certification and the required criminal history record with the student's district of residence superintendent.

Now, I'd love to give you a quick and easy rundown on this option, but it's not that simple. Unfortunately, there are significantly different interpretations of this law, depending on who you talk to. You, the PDE, HSLDA, and your school district may all have very different ideas as to what the law requires. If you and your district agree, then you're probably OK, even if the PDE has a different interpretation, as long as the district's position doesn't change (which it sometimes does when a new administrator is hired). If you and the PDE agree, but your district does not, then you, with the PDE's help, can usually convince your district to go along with the PDE's interpretation. To make it even more complex, HSLDA has an entirely different interpretation of what is required of private tutors.

Confused? So am I. So let's start with the basics - the PDE's interpretation.

In October 2004, the PA Department of Education (PDE) changed their regulations (which are part of what's called "The Code"), in an attempt to clarify the procedures for private tutoring. Because many homeschoolers and school district employees may be unaware of these changes and may still be operating based on the older version of the code, there is likely to be some confusion about private tutoring. To help, I’ve prepared the following summary of the new regulations. Note that this summary is based on the PDE's interpretation of the law.

~ To qualify, the tutor must
1) hold a PA teaching certificate,
2) teach one or more children who are members of a single family,
3) provide the majority of the instruction to these children, and
4) receive a fee or other consideration for their services. 

Private tutors may have a Level I or Level II teaching certificate. The PDE previously took the position that the tutor must keep their certificate active by meeting the continuing education requirements in Act 48. However, as of July 2011, the PDE's private tutor web page states "The law specifically exempts evaluators and private tutors from having to maintain an active status for Act 48 Continuing Professional Development. This means a private tutor does not have to maintain Act 48 hours. See 24 P.S. § 12-1205.1. " (Note that this is different from home education program evaluators, who are clearly specifically exempted from Act 48 requirements. See More About Act 48.) Either way, some school districts do not challenge private tutors who have inactive certificates. If yours does, contact the PDE.

~ At the beginning of each school year,

In a significant change from the old regulations, as of 2004 the PDE regulations state that the superintendent does not have the right to approve or disapprove the tutor.

In the past, the PDE said that the parent must notify the district that their child(ren) will be privately tutored, and provide a copy of the tutor’s PA teaching certification and criminal history record. (Some districts require the criminal history record annually, some require it only once every five years.) The PDE suggests that the notification letter should contain the names of the children. The PDE believed that, in order to fulfill the compulsory education law, this notification must be done annually.

NOTE--> As of June 2011, on their web site, the PDE states that, in accordance with 24 P.S. § 13-1332, "The private tutor is to report to the district the lists of the names and residences of all children between six (6) and eighteen (18) years of age they are tutoring, report when they cease to tutor these students, and notify the district of any such child who has been absent three (3) days, or their equivalent, during the term of compulsory attendance, without lawful excuse." (Note that in the normal course of things, absences or sick days are likely to be of the "excused" variety, and thus not subject to this notification. Note also that "absence" in a homeschooling situation is a subjective concept at best.)
This notice should be given "at the beginning of such private teaching." The relevant BEC can be found here or here; note that it expires June 20, 2011. This requirement was not mentioned when I spoke to Sarah Pearce of the PDE extensively about the private tutor provision in 2005.

So the tutor needs to

"...furnish ... the names and residences of all children between six (6) and eighteen (18) years of age" who are being tutored,
"at the beginning of such private teaching", and

"file a copy of his Pennsylvania certification

and the required criminal history record

with the student's district of residence superintendent."

If the tutor provides all of this, the parent need not supply anything to the district at the beginning of the year. The parent must, however, provide the end-of-year letter.

I have created a ready-to-use packet including the tutor's beginning-of-year notification letter, the parent's end-of-year assurance letter, and copies of the relevant law and code. It is here, in .doc form, and here, in .pdf form. If you are concerned that your district may be unaware of the 2004 regulations, and you'd like to inform them, include the copies of the law and code with your correspondance with the school district.

~ During the school year, the instruction must include certain required subjects. The subjects are slightly different from those included in the home education law. Elementary students must study English (including spelling, reading and writing), arithmetic, science, history of the United States and Pennsylvania, geography, civics (including loyalty to the State and National government), safety (including fire safety), health (including physical education and physiology), music, and art. Secondary students must study English, mathematics, science, social studies (including PA, US, and world history and civics), health, physical education, art, and music. Instruction must be given for 180 days, or 900 hours (elementary) or 990 hours (secondary).

~ At the end of each school year, the parent must provide the district with written assurance that the instructional requirements have been met. Note that previously, this assurance had to be provided in advance. This change was subtle -- the language in the regulations changed from " …written assurance from the parent that the instructional requirements listed in this section shall be met” to "The parent shall provide written assurance that the instructional requirements listed in this section have been met.” (Emphasis mine.) Note that it is the parent, not the private tutor, who must privide this.

Again, see my handy-dandy packet for a ready-to-use letter. It is here, in .doc form, and here, in .pdf form.

~ Documentation: In the past, the documentation requirements for privately tutored students were unclear. The old regulations stated that the superintendent could, at the end of the year, require evidence that demonstrated that the student was making satisfactory progress and that the required subjects were taught for the time prescribed. In practice, some districts did not require any documentation; others expected the same type of extensive documentation from privately tutored students as they received from home-educated students. 

Under the new 2004 regulations, privately tutored students do not have to routinely provide extensive documentation showing that they have met the subject and instructional time requirements. The parent’s annual written assurance that the instructional requirements have been met is sufficient. However, if the superintendent receives a complaint “...that a student is not being provided instruction for the time prescribed or that a student is not making satisfactory progress in the tutoring program, the superintendent may request evidence of student academic progress and documentation that instruction is provided for the required number of days and hours. Evidence of satisfactory progress may include samples of student work, assessments, progress reports, report cards and evaluations. Documentation of instructional time may include logs maintained by the tutor or parent, attendance records or other records indicating the dates and time instruction was provided.”

Thus while privately tutored students are not required to submit documentation routinely to the district, they are expected to be able to produce such records if there is a complaint. Note that the due process procedure in the home education law (which allows for a hearing) does not apply to privately tutored students.

~ Home Education Law Change of October 2014: The October 2014 change to the home education law, which eliminates the superintendent's review of the portfolio, changes the due process procedures, and addresses various issues around high school diplomas, does NOT apply to privately tutored students.

~ Special Education: If the parents have concerns that their child might have special needs, the child has the right to evaluation (by federal law) and the results of the evaluation will be discussed with the parent. However, the student does not have the right to special ed services from the school district. Unlike home education programs, there is no pre-approval requirement for students who have already been identified as special ed. 

~ Tutoring students from more than one family: Sarah Pearce at the PDE has stated "A person who is private tutoring under the law, 24 P.S. Sec. 13-1327, is to tutor only children from a single family. If a tutor wishes to teach children from multiple families, the families should file under the home education law, 24 P.S. Sec. 13-1327.1. The supervisor of a home education program is responsible for the provision of instruction, but is not required to be the teacher for all subjects." 

~ Other Requirements: There is no requirement that privately tutored students take standardized tests, nor do they need to be evaluated. There is no special procedure for students who have been identified as special ed. Parents need not submit educational objectives. There are no medical requirements. Parents need not have a high school diploma. Some PA diploma programs, such as Erie, can be used by privately tutored students; others, such as PHAA, can not. 

~ There is some controversy as to whether the private tutor option can be used by a parent to tutor their own children.
Nothing in the law states that a parent cannot be the private tutor for their own children. Unfortunately, even with the new regulations there is still disagreement as to whether a parent who holds a PA teaching certificate is eligible to tutor their own children under this part of the law. Some families have been doing this for many years without difficulty; some have changed their district's position with a letter explaining their own interpretation of the law, a very few have had serious problems around this issue. (See this case from HSLDA.) In the past, the PDE has not taken a position on this; rather, they have stated that each school district, in consultation with their solicitor, must determine their own position. 

The issue generally hinges on the requirement that the tutor receive “a fee or other consideration” for their services. Some districts take the position that it is not possible for one parent to pay the other. Tutoring families handle the payment requirement in many ways - from taking the parent-tutor out to dinner once a month, to making monthly contributions to the parent-tutor's Individual Retirement Account, to having grandparents pay the tutor a nominal fee.

Now, as I mentioned above, all of this is the PDE's interpretation of the law and the Code. As I understand it (and remember, I am not a lawyer and boy is this stuff confusing), HSLDA has a significantly different interpretation. They take issue with whether there is statutory authority to issue regulations (the Code) governing a properly qualified private tutor. They feel some of the requirements in the Code are contrary to or not supported by the law. And they feel the Code is unconstitutionally vague about the standards for determining satisfactory student progress. If you feel the requirements in the Code are unacceptable to you, you might wish to contact HSLDA.

If you are considering tutoring your own children, I suggest you do the following:
-- First, familiarize yourself with the law and the regulations, by reading this page, including the references below.
--Then, contact the PDE, to understand their current interpretation and clarify anything you are unsure of.
--Ask around in your district to see if other families are using this option, and if so how the district is handling it. Your district may or may not be familiar with the private tutor provision. Even if they are, they may not be familiar with the 2004 changes.
--You may wish to make it clear in your notification letter that the tutor meets the requirements in the law. You may also wish to include copies of the law and code, if you feel it would be to your benefit for the district to be familiar with them. See my ready-to-use letters, here, in .doc form, and here, in .pdf form; copies of the law and code are included.
--Note that if your district believes that you cannot tutor your own children, you can try to change their mind - see my district problems page. These disagreements can often be solved with a letter explaining your interpretation of the law.

My impression is that in most cases, there are no serious issues with parents tutoring their own children. If you qualify to privately tutor, you are, after all, a trained, certified, professional educator. You will be giving individualized instruction to a small group of children, based on their needs and abilities. I have given you all of the tedious details of the law so that you have the knowledge and tools to advocate for your position should you be challenged, not to discourage you from choosing tutoring!

REFERENCES:

~ The law regarding private tutoring can be found at the end of 24 PS 13-1327 Compulsory school attendance:

"…Regular daily instruction in the English language, for the time herein required, by a properly qualified private tutor, shall be considered as complying with the provisions of this section. For the purposes of this section, "properly qualified private tutor" shall mean a person who is certified by the Commonwealth of Pennsylvania to teach in the public schools of Pennsylvania; who is teaching one or more children who are members of a single family; who provides the majority of the instruction to such child or children; and who is receiving a fee or other consideration for such instructional services. No person who would be disqualified from school employment by the provisions of subsection (e) of section 111 may be a private tutor, as provided for in this section. The private tutor must file a copy of his Pennsylvania certification and the required criminal history record with the student's district of residence superintendent."

~ The new regulations regarding private tutoring can be found in 22 Pa. Code § 11.31. Pupils not enrolled in public schools due to private tutoring. Note that the superintendent can no longer approve the tutor, and can ask for extensive documentation only if there is a complaint. This is a significant change. Note also the subtle change from requiring “…written assurance from the parent that the instructional requirements listed in this section shall be met”, (to be submitted as part of the approval process at the beginning of the year), to “The parent shall provide written assurance that the instructional requirements listed in this section have been met”, (presumably provided at the end of the year). Note also that, in cases where the superintendent asks for further documentation, the private tutor option does not include the extensive due process guidelines offered by the home education law.

These regulations were enacted in October of 2004. It is likely that it will take some for the 501 school districts to become aware of the changes.  Here is the text of the code:

EXCUSALS FROM PUBLIC SCHOOL ATTENDANCE

§ 11.31. Students not enrolled in public schools due to private tutoring.

(a) Private tutoring requirements.

(1) The instruction of students not enrolled in public schools due to private tutoring by a qualified tutor under section 1327 of the Public School Code of 1949 (24 P. S. § 13-1327) must include for elementary school level students: English, including spelling, reading and writing; arithmetic; geography; the history of the United States and Pennsylvania; science; civics, including loyalty to the State and National government; safety education, including regular and continuous instruction in the dangers and prevention of fires; health, including physical education and physiology; music; and art.

(2) For secondary school level students, the instruction must include: art; English; health; mathematics; music; physical education; science; and social studies, including civics, world history, United States and Pennsylvania history.

(3) The instruction may include, at the discretion of the tutor, economics, biology, chemistry, foreign languages, trigonometry or other age appropriate planned instruction as contained in Chapter 4 (relating to academic standards and assessment).

(4) The instruction must be given during the school year for a minimum of 180 days of instruction or for a minimum of 900 hours of instruction for an elementary level student and a minimum of 990 hours of instruction for a secondary level student as the equivalent of 180 days of instruction.

(b) Documentation regarding private tutoring.

(1) School district approval is not required to commence private tutoring.

(2) The parent shall provide written assurance that the instructional requirements listed in this section have been met.

(3) When a superintendent receives a complaint that a student is not being provided instruction for the time prescribed or that a student is not making satisfactory progress in the tutoring program, the superintendent may request evidence of student academic progress and documentation that instruction is provided for the required number of days and hours.

(4) Evidence of satisfactory progress may include samples of student work, assessments, progress reports, report cards and evaluations.

(5) Documentation of instructional time may include logs maintained by the tutor or parent, attendance records or other records indicating the dates and time instruction was provided.

~ The old regulations regarding private tutoring said:

EXCUSALS FROM PUBLIC SCHOOL ATTENDANCE § 11.31.

Pupils not enrolled in public schools due to private tutoring.

(a) Private tutoring by a properly qualified tutor shall be subject to the annual approval of the district superintendent of schools. The instruction shall include for elementary school level students: English, including spelling, reading and writing, arithmetic, geography, the history of the United States and Pennsylvania, science, civics, including loyalty to the State and National Government, safety education, and the humane treatment of birds and animals, health, including physical education and physiology, music and art. For secondary school level students, the instruction shall include: art, English, health, mathematics, music, physical education, science and social studies, including United States and Pennsylvania history.
The instruction shall be given during the school year for a minimum of 180 days of instruction or for a minimum of 900 hours of instruction for an elementary level student and a minimum of 990 hours of instruction for a secondary level student as the equivalent of 180 days of instruction.

(b) The superintendent’s approval of the tutor shall be by acceptable evidence of the tutor’s ability to teach the program to the pupil and by written assurance from the parent that the instructional requirements listed in this section shall be met. If approval is granted, the superintendent may afterwards also require evidence deemed necessary to demonstrate that the pupil is making satisfactory progress in the tutoring program and that the required subjects are being taught for the time prescribed.

More About Act 48 and Act 35: 

Act 48 sets forth continuing education requirements that teachers must meet in order to keep their PA certification active. The PDE, in the past, believed that since the tutor must be "...a person who is certified by the Commonwealth of Pennsylvania to teach in the public schools of Pennsylvania...", they must meet the Act 48 requirements in order to qualify as a private tutor.

Some school districts do not challenge tutors who have inactive certificates, generally either because they are unaware of this interpretation of the law, because they interpret the law differently (see About Act 35), or (especially in smaller districts) because they feel that the particular tutor is competent to do the job. My impression is that quite a few people who have inactive certificates act as private tutors. It is only an issue if the local school district decides to make it one. If you decide to tutor with an inactive certificate, be sure to be aware of the laws and to understand that you may have problems if the district decides to enforce the PDE's previous interpretation of the law.

If your certificate is inactive, but you'd still like to tutor, I suggest you talk to the PDE to verify/understand their current interpretation of Acts 35 & 48. You will also want to read About Act 48 & 35.

If you like, you can ask your district about it, to get their interpretation of the law. (Be aware that, especially if you are the first in your district to use the private tutor option, they may know less about the law than you do.) Be aware that they may then call the PDE for help interpreting the law. Or you just can go ahead and file a notification letter and not make an issue of the Act 48 credits and hope that the district doesn't either. (If they do, you can try arguing that Act 35 does apply to private tutors - see below - just be aware that the PDE may not back you up on this.) Be aware that you may have problems if the school district decides to challenge your qualifications (perhaps due to a change in district personnel). It may be wise to at least begin the process of re-activating your certificate.

Why is this so complicated? Mainly because there is some confusion/disagreement over the Act 48 regulations as they apply to private tutors - please read the section below.

About Act 35 & Act 48: Tutors vs. Evaluators

When reading the Act 48 regulations, you will come across some confusing language. To understand the following, remember that privately tutored students and home educated students are different, non-overlapping categories in PA law. 

After Act 48 was passed, Act 35 was passed to clarify some things. Act 35 included a clause that was apparently intended to exempt home education program evaluators from the Act 48 requirements. This clause says:

"(e) The requirements of this section and section 1205.2 do not apply to a professional educator not employed by a school entity

who serves as an evaluator of a home education program authorized under section 1327.1(e)(2)

or who provides private tutoring services as part of a home education program under section 1327.1."

Unfortunately, the last part of this clause was poorly worded, causing some confusion. From what I understand, the PDE, in the past, believed this clause, "who provides private tutoring services as part of a home education program under section 1327.1.", does NOT apply to certified teachers working under the private tutor law - they still have to meet the Act 48 requirements. This is because the tutoring services they provide are NOT part of a home education program under 24 PS 13-1327.1 Home Education Program (which is the home education law). Instead, privately tutored students fall under 24 PS 13-1327 Compulsory school attendance, section (a).

In fact, the clause actually makes no sense whatsoever, because people who provide "private tutoring services as part of a home education program under section 1327.1.", that is, people who tutor students who are under the home education law (not the private tutor law) do not have to meet any particular requirements anyway -- they need not even be certified teachers. Students who are under the home education law may be taught/tutored by anyone their parents choose to hire.

Regardless of this interpretation, it is possible that a particular school district may interpret this clause to mean that private tutors do not need to meet the Act 48 requirements, and you can certainly encourage your district to do so.

It's difficult to find specific information and references about this online. See Act 48 Q&A, question 20 (from the PDE), and Senate Bill 485 Bill Information (Act 35 - see page 10 of the latest "as printed" version.), but your best bet if you need further information or verification is to contact the PDE.

I again remind you that all of this is the PDE's interpretation of the law. If you and your school district have a different interpretation, and you both agree, then there should be no problem, unless the school district changes their interpretation mid-stream (often because of changes in personnel).

The Code and the Law:

Homeschoolers and school districts generally must follow both the PA Law and the PA Code. Here's how it works, as I understand it: Laws are enacted by the state legislature. The PDE has the authority to adopt regulations based on those laws, and based on any court cases that have clarified the laws. These regulations make up the Code. (This is why it’s important for any proposed new homeschooling law to include as much detail as possible, as those details which are left out will be filled in by the PDE via regulations.) As I understand it, in a court of law, the regulations in the code have essentially the same effect as laws.

See also:

-- My ready-to-use notification letters, here, in .doc form, and here, in .pdf form, including copies of the relevant law and code.

-- This article from HSLDA, referring to problems in '02-'03 and presumably written before the October 2004 changes to the Code. As I understand it, HSLDA has similar objections to the new Code.

-- This information from PHEA, which, as of 8/06, is mainly a discussion of the legal underpinnings (or lack thereof) of the pre-2004 Code's 'superintendent approval of the tutor' clause. As noted above, this clause is no longer in the Code (possibly because of the reasons given in this article). Be sure to read the current version of the Code before using the Private Tutor option!

-- And here is some information from the PDE about Teaching in PA, and about PA Teaching Certification. Here are some Updated Act 48 Questions and Answers (PDF).

-- Here is a nice printable version of the code and law in .pdf form or in .doc form, so you can include it with your correspondence with the school district.