You previously requested our opinion as to whether the Missouri "Virtual Instruction
Program" (or, "MoVIP") qualifies under section 202(d)(7) of the Social Security Act
(the Act), 42 U.S.C. § 402(d)(7), as a school that provides elementary or secondary
education in accordance with the laws of the state. We advised that the MoVIP program,
either used alone or in conjunction with an otherwise-qualified school or home school
program, may be used to confer full-time attendance (FTA) status to a student. Now,
you have requested further opinions about similar programs in the other states of
our region.
The region's state programs vary widely in the types of classes offered and the degree
of state government oversight. Kansas and Missouri programs meet the requirements
of § 202(d)(7), either alone or in conjunction with traditional classroom instruction.
Iowa has a state-run "virtual" Internet program, but it is essentially used only to
offer additional classes to students physically attending a traditional school. Nebraska
has passed legislation demonstrating intent to begin a state-run virtual school program,
but it does not have such a program at this time.
Legal Background
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) and (7). Entitlement to child's benefits may continue, however,
if (among other things) the child "was a full-time elementary or secondary student
and had not attained the age of 19." 42 U.S.C. § 402(d)(1). A full-time elementary
or secondary student is defined as an individual who is in full-time attendance as
a student at an elementary or secondary school, as determined by the Commissioner
in the light of the standards and practices of the schools involved. See id. at § 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. at § 402(d)(7)(C)(i). See also POMS RS 00205.200 (defining "educational institution). Except for two specific exceptions noted in
the Social Security regulations, the student must be scheduled to attend school for
at least 20 hours per week in order to be considered in full-time attendance. See 20 C.F.R. § 404.367(c) (2007). In order to qualify for benefits, a full-time student
may attend a school that provides elementary or secondary education as determined
under the laws of the state where the school is located; or study as a home school
student, a correspondence student, or an independent study. See 20 C.F.R. § 404.367(a).
Iowa
Since 2004, Iowa has had two state-led programs for high school students (grades 9-12),
called "Iowa Learning Online," or ILO, and "Iowa Online AP Academy." ILO is a program
of the Iowa Department of Education, but there is no particular authorizing legislation.
See John W~, and Jennifer R~, et al., Keeping Pace with K-12 Online Learning: a Review of State-Level Policy and Practice
(Keeping Pace), 82-83 (2007) (available at http://www.evergreenassoc.com/documents/KeepingPace2006.pdf ). Instructors are fully accredited by the state. See ILO, Frequently Asked Questions (ILO FAQ), available at http://iowalearningonline.org/faq.cfm . The ILO does not appear to be a large program. One source states that there were
only 250 students enrolled in a recent summer program.
The ILO program expects students to "attend" virtual Internet courses at a school
building. See ILO FAQ. The program contemplates students attending the classes via Internet video
feed in a classroom or computer lab at their school, with additional supervision from
an on-site teacher. Id. It is intended to help students to take particular subjects that may not be offered
in their local school. Id. In other words, the Iowa program appears to be conducted in the same way as normal
school attendance. From SSA's viewpoint, the program should be indistinguishable from
normal schooling. Therefore, a student utilizing ILO for a portion or the whole of
his classes will be attending a school in accordance with the laws of his state, and
he will likely be using combined classroom and virtual teaching to meet the full-time
attendance requirement. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.367(b) (2007) (full-time attendance requirement
met for students in day course of 13 weeks duration, and carrying a subject load which
is considered full time).
Kansas
The Kansas State Department of Education (KSDE) does not conduct a state-led virtual
school program, but it has an extensive program of approved virtual school programs.
KSDE requires that various district and private virtual schools register with the
state, and submit to "perhaps the most-developed and well-documented system for tracking
online programs" if they wish to receive government funding. Keeping Pace at 85. As a result, Kansas "virtual schools" programs are extensive and varied, and
include a number of "cyber charter schools" and online programs run by local districts.
Id. See also 2007-2008 Kansas Virtual Schools, available at http://www.ksde.org/LinkClick.aspx?fileticket=GSr3jZr5PUI=&tabid=455 (PDF file containing 35 currently-registered schools, including both local school
districts and charter-type schools). See also Kan. Stat. Ann. § 72-1903 (providing for "charter schools" to be accredited by the
state). To receive funding, virtual schools must meet all standards required by the
state, including ensuring that students undergo required state assessments for their
grade level, and that courses are aligned to state standards. See Keeping Pace at 86. In addition, Kansas requires verification of "enrolled and attending" students
through an "Academic Activity Log." Id. at 85.
A student may use the KSDE virtual school program to meet the requirements of a "full-time"
student. A student attending a virtual public or charter school which has qualified
for funding is clearly complying with "the law of the State . . . in which it is located."
See 20 C.F.R. § 404.367(a) (2007). According to Kansas statutes, a child under age 16
must attend continuously each school year either a public school or "a private, denominational
or parochial school taught by a competent instructor for a period of time which is
substantially equivalent to the period of time public school is maintained in the
school district in which the private, denominational or parochial school is located."
Kan. Stat. Ann. § 72-1111(a). The Kansas statutes require that a school term must
consist of 186 school days, no less than 6 hours per day for grades kindergarten through
11, and slightly less for grade 12. In the alternative, the school term must consist
of 1,116 hours per year for grades one through eleven, and again, slightly less for
grade 12. Kan. Stat. Ann. § 72-1106(a) and (b) (Supp. 1996). There are different attendance
requirements for religious school or parochial students, which may have virtual school
students, but they are still expected to be engaged in at least five hours of school
work per day. Kan. Stat. Ann. § 72-1111(f). According to a telephone conversation
with Staci W~, Coordinator of Educational Alternatives at KSDE, any student utilizing
a Kansas public virtual school program will comply with public school attendance requirements.
In fact, she mentioned that students' time spent in schooling is often automatically
tracked by their computer. Such a virtual school student will therefore be in compliance
with both Kansas and SSA attendance requirements. Thus, a student will also meet SSA's
20-hour per week attendance requirement. See 20 C.F.R. § 404.367(c) (2007).
Interestingly, Ms. W~ noted that home school students often enroll in virtual school
programs, and that the state then considers such students as normal full-time students
whose time and production is carefully tracked. On the other hand, it is possible
that a student may claim to be a full-time student using a Kansas virtual school program,
but whose school does not appear on the list of virtual schools, cited above. In this
case, it may be that the school has not met the stringent state requirements required
to receive funding. Such a student should be assessed as if he were a home school
student in accordance with the POMS and previous opinions provided by this office.
Missouri
The Missouri virtual school program, or MoVIP, is designed to "offer instruction in
a virtual setting using technology, intranet, and/or Internet methods of communication."
Mo. Rev. Stat. § 161.670.1 (2007). A "full-time equivalent student" is a student who
has "successfully completed the instructional equivalent of six credits per term."
Id. Each "virtual course shall count as one class and shall generate that portion of
a full-time equivalent that a comparable course offered by the school district would
generate." Mo. Rev. Stat. § 161.670.2. In addition, the virtual instruction program
must comply with all laws and regulations applying to schools. See Mo. Rev. Stat. § 161.670.4. The Missouri program is more closely tied to the school
administration program at the state level than the Kansas program. Students participating
in the program are guided in their studies by Missouri certified teachers, and courses
are to be delivered through use of the Internet, including streaming audio and video,
e-mail, chat rooms, bulletin boards, and so on. Teachers are to directly communicate
with students via telephone, e-mail, instant messaging, and discussion forums. See "MoVIP Frequently Asked Questions," http://dese.mo.gov/divimprove/curriculum/movip/faq.html .
As noted in our previous opinion, a student using the MoVIP for all or a portion of
his schooling may clearly be a full-time student under SSA regulations. See, e.g., Chris Harris, "MoVip off to a smooth start," Southeast Missourian (August 27, 2007), available at http://www.semissourian.com/story/1249300.html (students describing using MoVIP for a portion of schooling). As previously noted,
a MoVIP student is attending an educational institution in accordance with the laws
of the state of Missouri. See 20 C.F.R. § 404.367(a)(2). See also POMS RS
00205.285 ("Independent study programs are run by local education agencies . . . in accordance
with specific State law requirements, and the credits earned count toward high school
graduation. The programs involve periodic teacher contact, direction, and testing
on campus, with the student making academic progress generally through independent
study at home."). A student attending MoVIP for all of her schooling is considered
by the state to be full-time if she carries "the instructional equivalent of six credits
per term." Mo. Rev. Stat. § 161.670.2. Therefore, in order to meet the state standard,
the factfinder will have to assess whether the student is receiving the required six
credits. The student must also be attending the school 20 hours per week. See 20 C.F.R. §404.367(b) (2007). Because of the demands of obtaining 6 credits, it appears
likely that any MoVIP student will also be receiving the required 20 hours of instruction
if she is taking the required 6 credits, but both the regulations and POMS state that
such an analysis must be undertaken.
Nebraska
Nebraska does not appear to have a virtual school program at this time. Legislation
was passed in August 2006 to develop infrastructure for such a program, so there may
be one in the future. See Keeping Pace at 93. See also National Council for Online Learning (NACOL), "Nebraska," found at http://www.edgateway.net/cs/nacol/view/states/27 .
The state has two "online learning programs" for high school students but these are
not virtual schools as contemplated by this opinion. A website for one of the schools
uses Internet resources for some limited lesson presentations and parent communications.
See, generally, Westside Community Schools, available at http://www.westside66.org/wcs/site/default.asp . The other program, from the University of Nebraska - Lincoln, offers college preparation
independent courses to be used as a part of a regular school or home school program,
but the program is longstanding, and should be classified as an accredited independent
study program. See University of Nebraska - Lincoln, "Independent Study High School Frequently Asked
Questions," found at http://nebraskahs.unl.edu/faq.shtml . See also POMS RS 00205.285 ("Independent study programs are run by local education agencies . . . in accordance
with specific State law requirements, and the credits earned count toward high school
graduation. The programs involve periodic teacher contact, direction, and testing
on campus, with the student making academic progress generally through independent
study at home."). Therefore, to the extent that Nebraska offers online classes, these
are not virtual school programs that could qualify independently as educational institutions.
Kristi A. S~
Acting Chief Counsel, Region VII
By
Kevin B. M~
Assistant Regional Counsel