QUESTIONS PRESENTED
This memorandum responds to your request for an opinion regarding whether two claimants
who have attained the age of eighteen and who attend an Arkansas-based online school
qualify as full-time students of a secondary school (also referred to as an educational
institution). You have asked this because if the claimants are full-time students
of a secondary school, they are eligible to receive continued child’s insurance benefits
(also referred to as student benefits) under the Social Security Act (Act) on the
number holders’ earnings records. See 42 U.S.C. § 402(d)(1)(B), (7); 20 C.F.R. §§ 404.350(a)(5), 404.367; Program Operations
Manual System (POMS) RS 00205.295. Specifically, you asked whether the Arkansas Virtual Academy, based in Arkansas,
is an educational institution and whether two claimants, L~ (C1) and T~ (C2), who
attend the online school, meet the full-time attendance requirements for student benefits.
ANSWER
We believe that the agency could reasonably conclude that the Arkansas Virtual Academy
qualifies as an educational institution because it is an online open-enrollment public
charter school for grades K-12 that complies with Arkansas law. Additionally, we believe
that the agency could reasonably conclude that C1 and C2 meet the full-time attendance
requirements for student benefits.
BACKGROUND
A. The Arkansas Virtual Academy
The Arkansas Virtual Academy’s website describes the Academy as “a publicly-funded
online charter school” for grades K-12. See http://arva.k12.com/who-we-are/letter.html (last visited August 9, 2017). Financial statements provided on the school’s website
explain that the Arkansas Virtual Academy is a nonprofit organization incorporated
under Arkansas laws in 2003, and that the Arkansas State Board of Education granted
its original charter on October 8, 2007, to operate as an open-enrollment charter
school. See http://arva.k12.com/content/dam/schools/arva/files/arva_fs_2015.pdf (last visited August 9, 2017). The Arkansas State Board of Education renewed the
school’s charter effective July 1, 2015, for a five-year period. See id. at 7.
As reflected in a Report of Contact, the J~ Field Office contacted the Arkansas Virtual
Academy on January 12, 2007, for additional information on the school as it related
to C1’s claim for student benefits. In response, on March 15, 2017, S~, Ed.D., who
identified himself as “Head of School,” provided a link to the Arkansas Department
of Education’s website, which lists state-approved charter schools and indicates that
the Arkansas Virtual Academy is a state-approved, open-enrollment charter school.
See http://www.arkansased.gov/contact-us/charter-schools/charter_school_categories/open-enrollment (last visited August 9, 2017).
As reflected in a Report of Contact, the Fayetteville Field Office contacted M~, an
office administrator at the Arkansas Virtual Academy, on May 23, 2017, for more information
on the school as it related to C2’s claim for student benefits. M~ stated that the
school taught all subjects as in a traditional school setting. She stated that all
students are required to spend at least 30 hours per week on their studies and to
track online the time they spend on their studies. Some classes are taught by video
instruction, while others are based on independent reading assignments and tests.
The school conducts all standardized testing the state requires and is required to
meet all state guidelines as if it were a brick and mortar facility. Students interact
with each other via the Blackboard computer system.
B. C1’s Attendance at the Arkansas Virtual Academy
As we understand the facts, C1 was entitled to child’s benefits on the number holder
L~’s (her disabled father’s) account. C1 resides in J~, Arkansas, and turned 18 in
June 2017. To prevent the termination of her benefits, C1 completed a Form SSA-1372-BK
(the Form) page 2, Student’s Statement Regarding School Attendance, on November 8,
2016. She submitted the Form to the J~ Field Office on January 12, 2017. In the Form,
C1 represented that the 2016-2017 school year began on August 15, 2016, and that she
expected to graduate at the end of the school year, on May 20, 2017. She reported
that she attended the school for 30 hours per week. On November 8, 2016, guidance
counselor C~ signed and dated the Form page 3, Certification by School Official, certifying
that the information C1 provided was correct and that the school’s course of study
was of at least 13 weeks’ duration, operating on a quarterly/semester basis.
C. C2’s Attendance at the Arkansas Virtual Academy
As we understand the facts, C2 was entitled to child’s insurance benefits on the number
holder D~’s (C2’s deceased mother’s) account. C2 resides in S2~, Arkansas, and turned
18 in July 2017. C2 completed the Form pages 2-3, Student’s Statement Regarding School
Attendance Outside the United States,[1] on May 17, 2017, which he submitted to the Fayetteville Field Office on May 23, 2017.
C2 represented in the Form that he attended the Arkansas Virtual Academy for 33.75
hours per week during the 2016-2017 school year, from August 15, 2016, through May
26, 2017, and that his expected graduation date was June 2018. On May 18, 2017, guidance
counselor C~ signed and dated the Form page 4, Certification by School Official, certifying
that the information C2 provided was correct and that the school’s course of study
was of at least 13 weeks’ duration, operating on a quarterly/semester basis.
ANALYSIS
A. Entitlement to Student Benefits
Section 202(d)(1)(B) of the Act provides for the payment of child’s insurance benefits
on the earnings record of an insured individual entitled to old-age or disability
insurance benefits, or who has died, to certain applicants age eighteen or older,
who are full-time elementary or secondary school students. See 42 U.S.C. § 402(d)(1)(B), (6)(A)(i), (7); 20 C.F.R. §§ 404.350(a)(5), 404.351(a),
404.367. The SSA’s POMS refers to these benefits as student benefits. See POMS RS 00205.001.
In general, the agency considers a claimant to be a “full-time elementary or secondary
school student” for student benefit purposes if:
(a) the student attends a school that provides elementary or secondary education as
determined under the law of the state in which the school is located and that complies
with state law;
(b) the student is in full-time attendance in a day or evening non-correspondence
course of at least 13 weeks’ duration and carries a subject load considered full-time
for day students under standards and practices set by the state in which the student
resides;
(c) the student attends school at least 20 hours per week (subject to exceptions);
(d) the student is not being paid while attending the school by an employer that required
or requested that the student attend the school;
(e) the student is in grade 12 or below; and
(f) the student is not subject to provisions relevant to nonpayment of benefits to
prisoners.
See 20 C.F.R. § 404.367; see also POMS RS 00205.001 (eligibility for student benefits). The focus of your legal opinion request is upon
the requirements of section 404.367(a)-(c).[2]
As this matter concerns an online school, we note that SSA’s policy recognizes that
online schools that meet state law requirements can be educational institutions (elementary
or secondary schools) for SSA’s student benefit purposes.[3] See POMS RS 00205.295 (a child attending an online school is a full-time student if (1) the student meets
the standards for full-time attendance, and (2) the online school is consistent with
the law of the state in which the school is located).[4] Because the Arkansas Virtual Academy is located in Arkansas, we consider Arkansas
law in determining whether there is legal support to find that this online school
is an educational institution and whether C1 and C2 meet the full-time attendance
requirements. See 20 C.F.R. § 404.367(a)-(c); POMS RS 00205.295.
B. The Arkansas Virtual Academy is an Educational Institution in Compliance with Arkansas
Law
We first address whether the Arkansas Virtual Academy is an educational institution
that complies with Arkansas law. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.200, RS 00205.250, RS 00205.295. We conclude that it is a charter school operating in compliance under Arkansas law.
As described in the background section, the Arkansas Virtual Academy’s website describes
itself as “a publicly-funded online charter school” for grades K-12. Arkansas statutory
law authorizes the creation of charter schools (conversion public charter schools
and open-enrollment public charter schools) and sets forth specific requirements for
obtaining and maintaining a charter from the State. See Ark. Code Ann. §§ 6-23-101 to 6-23-1008 (the Arkansas Quality Charter Schools Act
of 2013, amending the Arkansas Charter Schools Act of 1999). As noted, the school’s
website explains that the Arkansas State Board of Education granted the Arkansas Virtual
Academy its original charter on October 8, 2007, to operate as an open-enrollment
public charter school. The Arkansas State Board of Education renewed the school’s
charter effective July 1, 2015, for a five-year period. The Arkansas Department of
Education’s website currently lists the Arkansas Virtual Academy as an open-enrollment
charter school, which originally opened in 2007. See http://www.arkansased.gov/contact-us/charter-schools/charter_school_categories/open-enrollment (last visited July 26, 2017). Thus, the Arkansas Virtual Academy appears to be operating
under a current charter in compliance with Arkansas law.
Arkansas requires that all children between the ages of five and seventeen be enrolled
in a public, private, parochial, or home school. Ark. Code Ann. § 6-18-201(a). Under
Arkansas law, an open-enrollment charter school is specifically defined as a public
school. Ark. Code Ann. § 6-23-103; see also http://www.arkansased.gov/divisions/learning-services/charter-schools (last visited July 26, 2017) (The Arkansas Department of Education states that “[p]ublic
charter schools are public schools of choice that operate with freedom from many of
the regulations that apply to traditional public schools,” and that “[t]he charter
establishing each such school is a performance contract detailing the school’s mission,
program, goals, students served, and methods of assessment.” Further, “[p]ublic charter
schools are accountable to the State Board of Education.”).
Accordingly, we believe that the agency could reasonably conclude that the Arkansas
Virtual Academy, an open-enrollment, online public charter school for grades K-12
in compliance with Arkansas law, is an educational institution for SSA student benefit
purposes. See 20 C.F.R. § 404.367(a); POMS RS 00205.250 (SSA assumes that public schools in the United States are educational institutions).
C. C1 and C2 Meet the Standards for Full-Time Attendance
We also address whether C1 and C2 meet the federal and state standards for full-time
attendance. See 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300(A), RS 00205.350(A). To meet the federal standards, the student must be scheduled for attendance at
the rate of at least 20 hours per week (subject to exceptions), enrolled in non-correspondence
courses, and enrolled in a course of study that is of at least 13 weeks’ duration.
See 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300(C). As detailed in the background section, C1 reported that she attended the school
30 hours per week for the school year from August 2016 through May 2017, and C2 stated
that he attended the Arkansas Virtual Academy 33.75 hours per week for the school
year from August 2016 through May 2017. The school’s guidance counselor, C~, certified
that this information was correct and also certified that the school’s course of study
was of at least 13 weeks’ duration, operating on a quarterly/semester basis. Office
administrator M~ told SSA that all students were required to track the time spent
online, that attendance logs were maintained, and that all students must complete
at least 30 hours of study per week. Finally, it is our understanding that this online
open-enrollment public charter school is not a correspondence school. See POMS RS 00205.330 (a correspondence school is a school that teaches by mailing lessons and exercises
to the student, which the student then completes and returns to the school for grading).
Based on this evidence, we believe that the agency could reasonably find that C1 and
C2 both meet the federal standards for full-time attendance.
A school meets the state’s attendance requirement if it considers the student to be
full-time based on the school’s standards and practices for day students. See 20 C.F.R. § 404.367(b); POMS RS 00205.300(B). Arkansas law requires specific hour attendance requirements only in cases where
the child does not attend public school. See Ark. Code Ann. § 6-18-201. Because the Arkansas Virtual Academy is a public school
under Arkansas law, state law does not impose a specific hour attendance requirement.
However, as noted, the school’s office administrator, M~, advised SSA that students
were required to attend the school for at least 30 hours per week. She also stated
that the school was required to meet all state guidelines as if it were a regular,
brick and mortar facility. As an approved open-enrollment public charter school, it
would appear that the Arkansas Virtual Academy’s attendance standards comply with
Arkansas law. C1 reported that she was in full-time attendance (30 hours per week),
and the school’s guidance counselor confirmed this was accurate. Similarly, C2 reported
that he was in full-time attendance (33.75 hours per week), and the school’s guidance
counselor confirmed this was accurate. Thus, the school considers both claimants to
be full-time students. Based on this evidence, we believe that the agency could reasonably
find that they meet the state standards for full-time attendance.
CONCLUSION
We believe that the agency could reasonably conclude that the Arkansas Virtual Academy,
an on-line open-enrollment public charter school for grades K-12 that complies with
Arkansas law, qualifies as an educational institution for SSA student benefit purposes.
We also believe that the agency could reasonably find that both C1 and C2 meet the
full-time attendance requirements for SSA student benefit purposes.