QUESTION PRESENTED
You asked whether North Dakota 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 North Dakota recognizes online schools as EIs within the meaning of the
Act. Absent a waiver, the Superintendent of Public Instruction (“the superintendent”)
must approve any public or nonpublic school in the state. State law requires nonpublic
high schools that use telecommunications or other electronic means to deliver curricular
programs and that have an enrollment of 50 or fewer students to undergo additional
approval procedures. Thus, approved nonpublic online schools are EIs within the meaning
of the Act. Moreover, any person who provides courses electronically to a student
in North Dakota must obtain prior approval from the state. A home school under the
supervision of a parent that uses a state-approved nonpublic online school or that
uses state-approved electronic courses to instruct qualifies as an EI under state
law.
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 (“the 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, the draft
POMS provision, RS 00205.295, requires an adjudicator to determine whether the state where a student resides recognizes
online schools as educational institutions, and whether the online school in question
is an educational institution in that state. [1]
DISCUSSION
North Dakota recognizes three types of education entities: approved public schools,
approved nonpublic schools, and home education programs. See N.D. Cent. Code §§ 15.1-20-01, -02.
Public Online Schools
The State of North Dakota recognizes public online schools as EIs. The state is required
to provide through the North Dakota Center for Distance Education (“NDCDE”), a public
online high school, a complete distance education curriculum that must be approved
by the superintendent. See id. § 15-19-01. The center offers full-time online enrollment and issues an accredited
diploma; however, students under age sixteen are required to take NDCDE online classes
at the public school they attend. See NDCE, https://www.ndcde.org/Home.aspx (last visited March 5, 2010). Absent evidence to the contrary, public schools that
offer online courses through NDCDE are per se educational institutions under state
law. See POMS RS 00205.250(B)(1).
Approved Nonpublic Schools
North Dakota’s compulsory attendance law requires a person having responsibility for
a child between the ages of seven and sixteen ensure the child attends a public school
for the duration of each school year. Id. § 15.1-20-01(1). A child who attends “an approved nonpublic school” for the same length
of time as public schools are in session or a child participating in a home education
program is exempt from the state’s compulsory attendance law. See id. §§ 15.1-20-01(3), 15.1-20-02 (a), (e). [2]
Absent a waiver, the superintendent must annually approve all public and nonpublic
schools in the state and may do so only if a school meets the following requirements:
(1) each classroom teacher is licensed or approved to teach by the education standards
and practices board;
(2) unless granted an exception, each classroom teacher teaches only in those course
areas or fields for which the teacher is licensed or has received an exception; (3)
students are offered all subjects required by law; (4) the school is in compliance
with all local and state health, fire, and safety laws; and (5) the school has conducted
all criminal history record checks required by law. Id. § 15.1-06-06; see also id. § 15.1-06-08 (rules governing waiver).
In addition to meeting all statutory requirements regarding subjects to be taught
and length of school year, [3] a nonpublic high school with an enrollment of 50 or fewer students must:
(1) ensure curricular programs delivered by telecommunications or other electronic
means are prepared by individuals holding at least baccalaureate degrees and delivered
in the presence of an individual who holds a North Dakota professional teaching license
or who meets or exceeds the average cutoff scores of states that have normed the national
teacher's examination; (2) the school employs at least one state-licensed high school
teacher to serve in a supervisory capacity for each twenty-five students; (3) the
average composite scholastic achievement test scores of students enrolled in the school
or the students’ scores achieved on comparable standardized tests meet or exceed the
national average test scores; (4) and the school and its employees are governed by
a board of directors that includes parental representation.
Id. § 15.1-06—07. Any approved online private school presumably meets all of the applicable
requirements noted above and, therefore, is an EI within the meaning of the Act. [4] To determine whether a particular nonpublic online school has been approved by the
state or has received a waiver, we recommend you contact Paula M~, Approval & Accreditation,
Administrative Assistant, North Dakota Department of Public Instruction.
Electronic Course Delivery Approval Process
Before “a person” [5] may provide courses electronically to a student in North Dakota, the person must
obtain annual approval from the superintendent of public instruction, who must verify
that: all courses offered by the person in the state are aligned with the state content
and performance standards, and if standards do not exist for a particular course,
the criteria must ensure that the course content is sufficiently challenging for students,
given the grade level at which it is offered; all teachers involved in the electronic
delivery of a course meet or exceed the qualifications and licensure requirements
placed on the teachers by the state in which the course originates; and all students
receiving a course electronically have ongoing contact time with the teachers of the
course. Id. § 15.1-21-15. While the statute specifically provides the approval process does not
apply “to a course provided electronically between approved schools in th[e] state,"
id. § 15.1-21-15(3), this exemption does not cover courses provided electronically by
an approved private online school to home-schooled students.
Home Education Programs
Currently, home education “means a program of education supervised by a child’s parent
. . . .” Id. § 15.1-23-01 (effective through July 31, 2011).[6] Since the statute does not specifically require a parent to instruct his or her child,
we believe a home school that uses a private online school or curriculum approved
by the superintendent to instruct qualifies as an EI under state law, provided instruction
occurs under the supervision of a parent. Similarly, the statute establishing the
center for distance education specifically provides that home education students may
enroll and take courses offered through the center “in their learning environment
under the supervision of a parent.” Id. § 15-19-01.
A home school that uses an approved private online school or curriculum to provide
instruction under the supervision of a parent must satisfy the state’s home education
program requirements, which are set forth in POMS RS DEN 00205.275 and POMS PR 08005.037. We note, however, that the parent qualifications section should be corrected to
reflect that effective July 1, 2009, through July 31, 2011, a parent does not have
to be certified to teach in North Dakota or have a baccalaureate degree to supervise
home education. See N.D. Cent. Code § 15.1-23-03 (effective through July 31, 2011). Through July 31,
2011, a parent who has only a high school diploma or general education development
certificate (“GED”) may supervise home education without being monitored. Id. Until August 1, 2011, only a parent without a high school diploma or GED is required
to be monitored. Id. The POMS currently reads as if a parent with a high school diploma
or GED must be monitored.
Effective July 1, 2009, the legislature amended the required units approved public
and nonpublic high schools must make available to students. (Home education programs
must also provide these course offerings.) The amendments clarified the following:
that English language arts must be “from a sequence that includes literature, composition,
and speech”; that one unit of math must be algebra II and another unit must be a course
“for which algebra II is a prerequisite”; that science must include one unit of physical
science and one unit of biology; that history must include one unit of problems of
democracy or one-half unit of Unites States government and one-half unit of economics,
in addition to one world history unit and one United States history unit; that the
foreign language requirement may be satisfied with a Native American language; that
students must take one unit of an advanced placement course or one unit of a dual-credit
course; and that the career and technical education units must be “from a coordinated
plan of study recommended by the department of career and technical education and
approved by the superintendent of public instruction.” Id. § 15.1-21-01(1); see also 2009 S.D. Sess. Law, ch. 175, § 14. Effective August 1, 2007, the legislature also
required that “each public and nonpublic high school . . . make available to each
student, at least once every two years, one-half unit of North Dakota studies, with
an emphasis on the geography, history, and agriculture of th[e] state.” N.D. Cent.
Code § 15.1-21-01(2); see also 2007 S.D. Sess. Law, ch. 174, § 2. POMS RS DEN00205.275 and POMS PR 08005.037 should be updated to reflect these and the above changes.7
CONCLUSION
The State of North Dakota recognizes approved online public and nonpublic schools
as EIs within the meaning of the Act. An otherwise qualified home school under the
supervision of a parent that uses a state-approved nonpublic online school or electronic
curriculum to instruct qualifies as an EI under state law. As noted above, we recommend
you contact the North Dakota Department of Public Instruction to verify whether the
superintendent has approved a particular online school or electronic curriculum.
Donna L. C~
Acting Regional Chief Counsel Region VIII
By_________
Yvette G. K~
Assistant Regional Counsel