QUESTION PRESENTED
You asked whether Utah recognizes online schools as educational institutions (“EIs”)
within the meaning of section 202(d)(7) of the Social Security Act (“the Act”), 42
U.S.C. § 402(d)(7). If so, you asked us to provide the pertinent requirements; if
not, you asked us to provide the state’s basic educational requirements for any school.
SHORT ANSWER
The State of Utah recognizes online public schools as EIs within the meaning of the
Act. Utah does not specifically address whether private schools may offer online curriculum;
however, our view is that “regularly established” private online schools that satisfy
the same requirements as “regularly established” traditional private schools qualify
as EIs under Utah law. Likewise, a home school that primarily uses a private online
school or program to instruct students should be considered an EI, if the home school
satisfies all state requirements.
BACKGROUND
The Program Operations Manual System (“POMS”) defines an EI as “a school that provides
elementary or secondary education . . . as determined under the law of the State or
other jurisdiction in which it is located.” POMS RS 00205.200. A draft provision regarding online schools, POMS RS 00205.295, provides that a child is a full-time student if (among other things) “[t]he law
of the State in which the student resides recognizes online schools as [EIs,]” and
“[t]he online school the student attends meets the requirements of State law in which
the student lives.” You requested formal legal opinions on these issues for each state
in Region VIII.
Requirements for Child’s Benefits
Section 202(d) of the Social Security Act provides that child’s insurance benefits
usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6)-(7). Entitlement to child’s benefits may continue, however,
if (among other things) the child is “a full-time elementary or secondary student
and ha[s] not attained the age of 19.” Id. § 402(d)(1).
A full-time elementary or secondary student is an individual who is in full-time attendance
as a student at an elementary or secondary school, as determined by the Commissioner
in light of the standards and practices of the schools involved. See id. § 402(d)(7)(A). An elementary or secondary school is defined as “a school which provides
elementary or secondary education, respectively, as determined under the law of the
State or other jurisdiction in which it is located.” Id. § 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a); POMS 00205.200 (defining an EI). As noted above, draft POMS
RS 00205.295 requires an adjudicator to determine whether the state where a student resides recognizes
online schools as EIs, and whether the online school in question is an EI in that
state.[1]
DISCUSSION
The State of Utah recognizes three types of educational entities: public schools (including
state acknowledged charter schools), regularly established private schools, and home
schools. See Utah Code Ann. §§ 53A-11-101.5, -1a-505, -1a-15; Utah Admin. Code r. 277-438-1(C),
(J).
Public Online Schools
Utah recognizes public online schools as EIs. An online school means a school that
provides the same number of classes consistent with the requirement of similar resident
schools, that delivers course work via the internet, that has designated a readily
accessible contact person, and that provides the range of services to public education
students required by state and federal law. Id. r. 277-438-1(H).
In 2006, Utah established the Electronic High School (“EHS”) Act. EHS “means a rigorous
program offering grade 9-12 level courses delivered over the Internet and coordinated
by the [State] [B]oard [of Education].” Utah Code Ann. § 53A-15-1002(2); Utah Admin.
Code r. 277-419. The Utah State Office of Education EHS Principal must consult with
school district personnel and Utah State Office of Education specialists to determine
curriculum and course offerings consistent with state core curriculum requirements
(discussed below). Id. r. 277-725-4(A). All EHS teachers must be licensed Utah educators. Id. r. 277-725-8(A).
The Utah Virtual Academy is an authorized charter school that is part of the public
school system. See UVA, http://www. k12.com/utva/ (last visited March 5, 2010). Like public schools, charter schools
must operate in accordance with state laws applicable to public schools, unless the
school applies to the State Board of Education for waiver of a rule “that inhibits
or hinders the school . . . from accomplishing its mission or educational goals set
out in its strategic plan or charter.” Utah Code Ann. § 53A-1a-511 (also lists State
Board of Education rules that do not apply to charter schools). Absent evidence to
the contrary, online public schools are per se EIs under state law. POMS RS 00205.250(B)(1).
Regularly Established Private Schools
Utah’s compulsory education statute requires that the parent of a school-age minor
(a child under the age of 14) enroll and send the school-age minor to a public or
regularly-established private school. Id. §§ 53A-11-101.5(2), (1)(d). While Utah does not specifically provide that a nonpublic
school may offer online curriculum, the state does not prohibit it either. Further,
the state specifically recognizes public online schools, indicating general acceptance
of online instruction. Therefore, we see no reason to conclude that a regularly-established
private online school would not qualify as an EI, as long as it satisfies the same
requirements as traditional regularly-established private schools.
Traditional regularly-established private schools are required to provide equivalent
instruction required in public schools (discussed below); employ teachers able to
provide the same quality of education as public school teachers (but there is no requirement
that private school teachers be licensed); be maintained by private individuals or
corporations and not operated at public expense; be generally supported, at least
in part, by tuition fees or charges; be established to operate independently and indefinitely,
i.e., not dependent on the age of available students or family situations; and be
licensed as a business by the Utah Department of Business Regulation. Utah Admin.
Code r. 277-438-1(J). [2]
Core Curriculum, Minimum School Day/Instructional Hours, and Records Maintenance
The Utah State Office of Education has established the following minimum core curriculum
for public school secondary students: language arts (3 units of credit), mathematics
(2 units of credit), science (2 units of credit), social studies (2.5 units of credit),
the arts (1.5 units of credit), physical and health education (2 units of credit),
career and technical education (1 unit of credit), educational technology (.5 unit
of credit), general financial literacy (.5 unit of credit), and library media skills
(integrated into the subject areas). Id. r. 277-700-6(C)(1)-(10). [3] For the 2010-2011 school year, the minimum core curriculum requirements will change
as follows: language arts will increase to 4 units of credit), mathematics will increase
to 3 units of credit, and science will increase to 3 units of credit. Id. r. 277-700-7(C)(1)-(10).
A minimum school day for secondary school students is four hours per day, excluding
lunch periods and pass time between classes. Id. r. 277-419-1(N)(1)-(2). Public schools are required to “conduct school for at least
990 instructional hours and 180 school days each school year . . . .” Id. r. 277-419-3(A); see also POMS PR 0790.049 (Status of Educational Institution in
the State of Utah). Public schools are also required to keep records of attendance,
and to conduct a minimum of one attendance check each school day. Utah Admin. Code
r. 277-419-3(B)(1), (3); ); see also POMS PR 0790.049 (Status of Educational Institution in the State of Utah).
While Utah law does not specifically provide that a nonpublic school may offeronline
curriculum, the state does not prohibit it either. Further, the state specifically
recognizes public online schools, indicating general acceptance of online instruction.
Therefore, we see no reason to conclude that regularly established private online
schools that satisfy all of the above requirements are not EIs under Utah law.
Home Schools
A student who attends a qualified home school is exempt from Utah’s compulsory education
requirements. Utah Code Ann. § 53A-11-102(b). A Utah home school must provide instruction
“(i) in the subjects the State Board of Education requires to be taught in public
schools in accordance with the law; and (ii) for the same length of time as minors
are required by law to receive instruction in public schools . . . .” Id. Parents of home-schooled students are “solely responsible for: (i) the selection
of instructional materials and textbooks; (ii) the time, place, and method of instruction,
and (iii) the evaluation of the home school instruction.” Id. § 53A-11-102(c). Thus, parents who home school are not required by law to be their
child’s primary instructor, and instruction is not restricted to the parent’s residence.
Additionally, parents are not required to maintain records of instruction or attendance,
and a local school board may not require credentials for individuals providing home
school instruction, inspect home facilities, or require standardized or other testing
of home school students. Id. § 53A-11-102(d).
A home school that uses online instruction in the minimum required core curriculum
established by the State Board of Education, and that conducts school for 990 instructional
hours and 180 school days each school year should be considered an EI under Utah law.
See POMS PR 08005.049 (Requirements for Home Schooling in Utah). [4]
CONCLUSION
Utah recognizes online public schools as EIs within the meaning of the Act. Absent
evidence to the contrary, EHS approved programs and the UVA are per se EIs. While
Utah does not specifically address whether regularly established private schools may
offer online enrollment, regularly established private online schools that comply
with state law as described above and qualified home schools that use regularly established
private online schools or programs to provide instruction also should be considered
EIs under Utah law.
Donna L. C~
Acting Regional Chief Counsel, Region VIII
By_________________
Yvette G. K~
Assistant Regional Counsel