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In an attempt to respond to confusion about鈥攐r resistance to鈥攖he tutoring requirements of the No Child Left Behind Act, the U.S. Department of Education issued guidance last week outlining what it expects states and school districts to do in supplying the help to needy children.

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The department issued the nonregulatory guidance in the wake of mounting questions about who should implement various parts of the law, and how. The 55-page document marks the first update since August 2003 of guidance on the free 鈥渟upplemental educational services鈥� that districts must offer to poor children in schools that have failed to make enough academic progress for three years in a row.

Key areas covered include those that have sparked high-profile disagreements between the federal government and states or districts, and those that have prompted ethical questions.

For example, districts found to be 鈥渋n need of improvement鈥� after they have begun serving as tutors must stop using federal Title I money to do so by the end of the semester in which they are notified of their status, the guidance says. The Chicago school district faced off with the Education Department over that issue earlier this year, but agreed to use other money to keep its tutoring program afloat. (鈥淐hicago, Ed. Dept. Settle Tutoring Dispute,鈥� February 9, 2005.)

The new guidance disappointed large urban districts that had hoped for more flexibility in being allowed to operate tutoring programs, even though they had failed to meet state benchmarks for adequate yearly progress, said Michael D. Casserly, the executive director of the Council of the Great City Schools, a Washington-based advocacy group.

鈥淚t is a major setback that we are very troubled by,鈥� Mr. Casserly wrote in an e-mail.

Nina S. Rees, the assistant deputy secretary in charge of the Education Department鈥檚 office of innovation and improvement, said in an interview that the issuance of the new guidance was driven in part by the need to more clearly define states鈥� and districts鈥� roles in tutoring programs. States must approve tutoring providers, who then contract with districts to operate their programs. Providers market themselves to parents, who then enroll their children.

鈥淥ne key area that was very clear to us was the fact that districts were involved in activities that were the states鈥� responsibility,鈥� she said.

Teacher Qualifications

While districts designated as in need of improvement can鈥檛 run their own supplemental-services programs, individual schools in those districts may do so if they have not been similarly labeled, the new guidance says. The new guidance clarifies that providers are free to employ teachers in districts or schools in need of improvement, but states may not require providers to hire teachers who are considered 鈥渉ighly qualified鈥� under the No Child Left Behind law.

One new section in the guidance arose from concerns about how to ensure ethical business practices by private companies or groups that provide tutoring. The special commissioner of investigation for the New York City school district is probing some companies鈥� allegedly improper use of inducements to persuade families to choose those providers鈥� programs.

The Education Department suggests that states adopt policies governing the use of financial incentives or gifts by providers. It says states 鈥渕ight want to allow鈥� them to offer 鈥渘ominal鈥� incentives to parents for attending information sessions or provider fairs, or to students for attending tutoring sessions regularly or performing well.

But states 鈥渕ight want to prohibit鈥� providers from giving incentives to students or parents for enrolling in their programs, or to schools for signing up students for those programs, the guidance says. States should make sure, it says, that providers don鈥檛 engage in false advertising or give 鈥渒ickbacks鈥� to district or school officials who encourage parents to choose their programs.

States also must make sure that districts don鈥檛 adopt practices that favor their own programs, or those of certain providers, such as giving some tutors free space in school buildings, the document says.

Steven Pines, the executive director of the Education Industry Association, a Potomac, Md.-based group that represents private education companies, praised the Education Department for offering guidelines on, among other matters, how states might decide whether providers applying for approval have a 鈥渄emonstrated record of effectiveness,鈥� and how to judge their proposed pay rates and program designs.

鈥淭his provides important clarity for all the various actors in this important system,鈥� Mr. Pines said.

Much of the new guidance details what states should do in implementing and monitoring tutoring programs, and what districts should not do.

States, for instance, may establish program-design criteria in such areas as student-tutor ratios and acceptable fees. But they must take care to set forth ranges, rather than specifying figures, to ensure a 鈥渂alanced variety of programs鈥� in the market and maximum parental choice. States must also be able to document that districts are meeting the demand for tutoring before districts are allowed to reallocate Title I funds intended for that purpose.

The guidance wades into the debate about how states should evaluate providers鈥� effectiveness, saying they could consider academic gains of students in the program. But it does not define what measures might be used to determine those gains. States could also consider whether providers delivered the programs promised in their application, and what parents and students thought about the programs, it says.

States may ask districts to supply data to be used in evaluating providers. But in cases where districts themselves are also providers, states might want to avoid involving districts in the process because it could create a conflict of interest, the guidance says.

Districts may not interfere with state-approved providers鈥� program designs or pass judgment on the effectiveness of providers working in their schools. They may not refuse to let a state-approved provider work with their students, even if they have concerns about program design, the department says.

Informing Parents

The guidance outlines roles for both states and districts in making sure parents are informed about tutoring. States could work with parent groups to get the word out, encourage districts to hold provider fairs, and consider developing a uniform contract that all districts could use to avoid districts 鈥渕arginalizing鈥� some providers, the document says.

Districts鈥� responsibilities in parent outreach are greatly expanded and detailed in the new guidance. They should 鈥渆ntice鈥� parents to sign their children up for tutoring, it says, by clearly explaining programs鈥� availability and benefits and undertaking an intensive publicity campaign using letters home, radio and television ads, or notices in shopping malls or houses of worship. The guidance also suggests that districts set up telephone help lines to answer questions.

Some observers said last week that the guidance maximizes states鈥� and providers鈥� authority over tutoring at the expense of districts鈥�. Mr. Casserly called it 鈥渙ne more nail in the coffin of local control of schools.鈥�

Jack Jennings, the president of the Center on Education Policy, a Washington-based research group that is tracking the implementation of the 3-year-old No Child Left Behind Act, praised the guidance as being 鈥渄etailed and useful.鈥� But he said the distribution of responsibilities and restrictions 鈥渓eaves districts at the bottom of the heap.鈥�

鈥淭his guidance is not oriented toward helping school districts improve themselves,鈥� said Mr. Jennings, a former top Democratic congressional aide on education. 鈥淚t鈥檚 oriented toward helping providers provide services.鈥�

States鈥� responsibilities for the program are broad, he noted, but many states, especially large ones, lack the resources to monitor districts and evaluate providers the way the law and guidance envision.

Kay Kammel, who oversees Florida鈥檚 supplemental services as the chief of the state department of education鈥檚 bureau of family and community outreach, said with a laugh that reviewing the list of state duties in the new guidance 鈥渕ade me think we might need a larger staff.鈥�

She and two other employees manage the state鈥檚 responsibilities for supplemental services in the 11 districts that offered such services this school year. But that oversight will expand next year, as 66 of the state鈥檚 67 districts are likely to be required to offer tutoring, she said.