This memorandum is in response to your request for a legal opinion on whether The
Southern Baptist Academy, which offers online high school courses via the Internet
(http:/thesouthernbaptistacademy.org/), meets the definition of an educational institution
under the Social Security Act (Act). [12] We believe that The Southern Baptist Academy online program is not an educational
institution under the Act, and therefore, B~ and A~’s entitlements to child’s insurance
benefits on the number holder’s account stopped once they reached 18 years of age.
BACKGROUND
The facts indicate that in December 1994, B~ and A~ became entitled to child’s insurance
benefits. Both B~ and A~ reside in Arkansas. B~ and A~ turned age 18 in December 2010,
after which the agency terminated their child’s insurance benefits. Prior to turning
age 18, B~ and A~ completed SSA Form 1372, Student’s Statement Regarding School Attendance.
Each stated that she had been attending The Southern Baptist Academy, based in Philadelphia,
Pennsylvania, since September XX, 2009; that she was scheduled to attend classes for
900 hours a year, which averaged 25 hours per week; that her current school year would
end on June 17, 2011; and that she expected to graduate in June 2011.
The Southern Baptist Academy registrar certified that the information B~ and A~ provided
on the SSA Form 1372 was correct. The registrar also stated that the school’s course
of study was at least 13 weeks in duration. Contrary to B~ and A~’s statement that
The Southern Baptist Academy is based in Pennsylvania, however, the registrar sent
the agency a letter on October 6, 2010, stating that the school is registered in Florida.
The Southern Baptist Academy website provides conflicting statements regarding its
location. On one page the website states, “The Southern Baptist Academy is an independent
private Christian K-12 online homeschool program that is registered as a private school
by the Texas Department of Education.” [13] (http://thesouthernbaptistacademy.org/accreditation.php) Elsewhere, however, the website states, “The Southern Baptist Academy is accredited
by the National Association of Private Schools Accreditation Alliance and is registered
with the Florida Department of Education.” (http://thesouthernbaptistacademy.org/faq.php#Is_the_Academy_accredited or_Licensed) Nevertheless, all addresses directing contact with the school are in
Philadelphia, Pennsylvania. [14] (http://thesouthernbaptistacademy.org/faq.php)
The Sherwood, Arkansas, Field Office contacted the Florida Board of Education to ask
whether The Southern Baptist Academy is registered in Florida. The Florida Board of
Education stated that the school appears in their directory as located in Florida,
but they did not have any information about the school operating as an online educational
entity. [15] The Florida Board of Education indicated that it was possible that The Southern Baptist
Academy operates an online school because the school can determine its own method
of instruction. [16]
DISCUSSION
The Act provides for the payment of child’s insurance benefits to certain applicants
over the age of 18 who are full-time elementary or secondary school (educational institution)
students. [17] See 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5); POMS RS 00205.001(A). Under the Act, an educational institution is a school that provides elementary
or secondary education, as determined under the law of the state or other jurisdiction
in which it is located. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.300.
Under the regulations, in order for a child to be eligible for child’s insurance benefits,
she must attend a school that provides elementary or secondary education as determined
under the law of the state in which the school is located. [18] See 20 C.F.R. § 404.367(a). Participation in the following programs also meets the requirements
of 20 C.F.R. § 404.367(a): 1) a student is instructed in secondary education at home
in accordance with the home school law of the State or other jurisdiction in which
she resides [19] ; or 2) a student is a in an independent study secondary education program in accordance
with the law of the State or other jurisdiction in which the student resides and that
is administered by the local school or school district/jurisdiction [20] . 20 C.F.R. § 404.367(a)(1), (2). Accordingly, a student may meet the requirements
set out by 20 C.F.R. § 404.367(a) if either the school itself is deemed an educational
institution in the state in which it is located or the student’s curriculum qualifies
under the law of the state in which the student resides.
In addition to meeting the requirements of 20 C.F.R. § 404.367(a), the student must
be in full-time attendance in a day or evening noncorrespondence course of at least
13 weeks duration and carry a subject load that is considered full-time for day students
under the institution’s standards and practices. 20 C.F.R. § 404.367(b). If the student
is enrolled in the home schooling program discussed in 20 C.F.R. § 404.367(a)(1),
the student must be carrying a subject load which is considered full-time for day
students under standards and practices set by the state in which she resides. 20 C.F.R.
§ 404.367(b). Finally, the student’s scheduled attendance must be at least 20 hours
per week, unless the school attended does not schedule at least 20 hours per week
and going to that particular school is the student’s only reasonable alternative or
the student’s medical condition prevents her from having scheduled attendance of at
least 20 hours per week. 20 C.F.R. § 404.367(c)(1), (2).
The Southern Baptist Academy is not an educational institution because it does not
provide elementary or secondary education, as determined under the laws of the State
in which it is located. 20 C.F.R. § 404.367(a).
We first address the question of whether The Southern Baptist Academy qualifies as
an educational institution under the law of the state where it is located. 20 C.F.R.
§ 404.367(a). There is conflicting evidence regarding where The Southern Baptist Academy
is located. Thus, we will address the state laws of Florida, Texas, and Pennsylvania
because the regulations require us to consider the state laws where the school is
located. [21]
Florida
Florida requires regular school attendance for children ages six through sixteen.
Fla. Stat. § 1003.21 (2011). A child is in regular school attendance if she attends
a public school, a parochial school, a private school, home education, or private
tutoring. Fla. Stat. § 1003.01. Florida law defines a private school as a non-public
school that provides instructional services and is supported in whole or in part by
tuition charges, endowments, or gifts. See Florida Stat. §§ 1002.01, 1003.01(2), 13(c). The Southern Baptist Academy is a private
school, as it is operated through the tuition of its students by a nonprofit organization,
Learning by Grace, Inc. [22]
There is no Florida statutory authority regulating the establishment of private schools
in Florida. See State v. M.M., 407 So.2d 987 (Fla. 1981). However, a private school must file an annual survey form
with the Florida Department of Education to be registered in the state of Florida.
Fla. Stat. § 1002.42. This annual survey form certifies that each of the private schools’
employees are fingerprinted and undergo a criminal background check. See Florida Stat. § 1002.42. The Florida Department of Education does not use this survey
form to “accredit” a private school; rather the Florida Department of Education’s
database of private schools exists solely as a “service to the public, and not to
regulate, control, approve, or accredit private educational institutions.” Florida
Stat. § 1002.42(2)(h).
As of November 10, 2011, The Southern Baptist Academy had not filed its annual survey
form with the Florida Department of Education for the 2011-2012 school year and was
not included in the department’s Private School Database. Therefore, Florida law does
not consider The Southern Baptist Academy a private school and B~ and A~ are not in
regular school attendance, as Florida law defines.
Texas
Texas requires compulsory school attendance for children ages six to eighteen. Tex.
Educ. Code Ann. § 25.085. However, a child is exempt from the requirements of compulsory
school attendance if the child attends a private or parochial school that includes
in its course a study of good citizenship. Tex. Educ. Code Ann. § 25.086. There is
no evidence that the Southern Baptist Academy has a physical location in Texas. The
Southern Baptist Academy lists its degree requirements on its website, but does not
include a course in good citizenship. (http://www.thesouthernbaptistacademy.org/diplomarequire.php) Thus, The Southern Baptist Academy does not satisfy the minimum requirements for
either a private or parochial school in the state of Texas.
Pennsylvania
Pennsylvania requires compulsory school attendance for children ages eight through
seventeen. 24 Pa. Cons. Stat. Ann. §§ 13-1326, 13-1327. A child who attends a private
school can satisfy the compulsory school attendance requirement in one of two ways.
Under the first exception, the child satisfies the compulsory school attendance requirement
if she is enrolled in a day school operated by a bona fide church or other religious
body and that school provides a minimum of 180 days of instruction or 900 hours per
year of instruction at the elementary level or 990 hours per year of instruction at
the secondary level. 24 Pa. Cons. Stat. Ann. § 13-1327. Under the second exception,
the child satisfies the compulsory school attendance requirement if she is enrolled
in a day or boarding school accredited by an accrediting association approved by the
State Board of Education. Id.
The Southern Baptist Academy does not satisfy the first exception because it is operated
by a non-profit corporation, not a bona fide church or other religious body. The school
also only requires 900 hours per year of instruction at the secondary level, falling
short of the 990 hours that Pennsylvania law requires. Finally, the school does not
have a minimum number of days that the child must attend. Thus, the school does not
satisfy the first exception.
The Southern Baptist Academy also does not satisfy the second exception because it
is not listed as a Licensed/Registered School on the Pennsylvania Department of Education
website. (http://www.education.state.pa.us/portal/server.pt/community/list_of_schools/7422) In addition, the Pennsylvania Board of Education has not approved the National Association
of Private Schools Accreditation Alliance, the organization that accredits The Southern
Baptist Academy, as an approved accrediting agency. Id. Regardless, even if The Southern Baptist Academy were registered in Pennsylvania,
Pennsylvania considers internet schools to be the equivalent of correspondence schools.
See 24 Pa. Cons. Stat. Ann. § 6503(a). The agency recognizes that, generally, a student
is not in full-time attendance based on taking correspondence school classes, even
if the correspondence school meets the definition of an educational institution. See POMS RS 00205.330(B). Thus, Pennsylvania does not recognize The Southern Baptist Academy as a private
school that satisfies the state’s compulsory school attendance requirement.
The Southern Baptist Academy does not instruct B~ and A~ in secondary education at
home in accordance with Arkansas home school law. 20 C.F.R. § 404.367(a)(1).
B~ and A~ reside in Arkansas. Thus, we next consider whether The Southern Baptist
Academy provides secondary education at home to B~ and A~ in accordance with Arkansas
home school law. 20 C.F.R. § 404.367(a)(1). While Arkansas recognizes a home school
program as an educational institution that can provide secondary education, we conclude
that Arkansas would not recognize The Southern Baptist Academy as a home school program.
Under Arkansas law, parents and guardians may teach their children in a home school
program. See Ark. Code Ann. §§ 6-15-501, 6-15-503, 6-15-504. Because The Southern Baptist Academy
is not a parent or guardian of the students enrolled in its program, however, it fails
as a threshold matter to qualify as a home school program under Arkansas law. See Ark. Code Ann. § 6-15-501. Furthermore, The Southern Baptist Academy does not qualify
as a home school program under Arkansas law because it does not meet Arkansas statutory
reporting and testing requirements. See Ark. Code Ann. § 6-15-503(a)(1). Under Arkansas law, parents or guardians desiring
to provide a home school for their children must give written notice to the superintendent
of their local school district of their intent to provide a home school for their
children and sign a waiver acknowledging that the State of Arkansas is not liable
for the education of their children during the time that the parents choose to home
school. Ark. Code Ann. §§ 6-15-503, 6-15-504. There is no evidence that anyone gave
written notice to the superintendent of B~ and A~’s local school district regarding
their attending a home school program. In addition, to qualify as a home school program,
each student must take a standardized achievement test that the Arkansas Department
of Education administers each year. Ark. Code Ann. § 6-15-504(b)(1)(A). There is also
no evidence that B~ or A~have taken or will take the Arkansas Department of Education
standardized achievement test. Thus, The Southern Baptist Academy does not qualify
as a home school program under Arkansas law.
The Southern Baptist Academy does not provide B~ and A~ an independent study secondary
education program in accordance with Arkansas law. 20 C.F.R. § 404.367(a)(2).
We next address the issue of whether The Southern Baptist Academy qualifies as an
independent study program [23] under Arkansas law. 20 C.F.R. § 404.367(a)(2). The regulations define an independent
study program as an elementary or secondary education program in accordance with the
law of the state or other jurisdiction in which the student resides which the local
school or school district administers. 20 C.F.R. § 404.367(a)(2). The POMS further
define an independent study program as a program that local education agencies, such
as high schools or school districts, run in accordance with specific state law requirements,
where the credits earned count toward high school graduation. POMS RS 00205.285(A). Independent study programs involve periodic teacher contact, direction, and testing
on campus, with the student making academic progress generally through independent
study at home. Id.
In Arkansas, the Department of Education oversees and coordinates the implementation
of distance learning, [24] which conducts independent study programs, in elementary and secondary public schools
and promulgates rules and regulations to establish appropriate adult supervision in
distance-learning courses. See Ark. Code Ann. §§ 6-47-201(a)-(b), 6-47-302(a). The Department of Education must
approve all distance learning courses, including out-of-state course providers, before
an educational institution may import those courses through distance learning. See Ark. Code Ann. §§ 6-47-201(c)(1), 6-47-302(b)(1); see also RGDL, Rule 4.01. [25] The Department of Education requires that all distance-learning courses have an appropriately
licensed or approved primary instructor; [26] that an adult facilitator [27] must be present when student achievement assessments used to determine a student’s
final grade are administered in a distance-learning course; and that all distance
learning courses must comply with the Arkansas Standards for Accreditation. See RGDL Rules 4.02, 4.04, 4.05. The only representation that The Southern Baptist Academy
program makes is that it is accredited by the National Association of Private Schools
Accreditation Alliance. There is no evidence that the Arkansas Department of Education
has approved The Southern Baptist Academy courses; that The Southern Baptist Academy
has appropriately licensed or approved primary instructors; that The Southern Baptist
Academy has an adult facilitator during student achievement assessments; or that The
Southern Baptist Academy online courses comply with the Arkansas Standards for Accreditation.
Thus, The Southern Baptist Academy does not qualify as an independent study program
under Arkansas law.
B~ and A~ are not in full-time attendance at The Southern Baptist Academy. 20 C.F.R.
§ 404.367(b)-(c).
Next, we address the issue of whether B~ and A~ are full-time students at The Southern
Baptist Academy. 20 C.F.R. § 404.367(b)-(c). As previously noted, in order to be eligible
to receive child’s insurance benefits, an applicant who is 18 years of age but has
not attained age 19 must be a full-time student, based on the agency’s regulatory
standards, at an educational institution. See 42 U.S.C. 402(d)(1)(B); POMS RS 00205.285. The agency considers a student to be a full-time student if she attends a school
that provides a secondary education under the law of the state in which the school
is located and if the student: (1) is in full-time attendance in a day or evening
non-correspondence course of at least 13 weeks duration; (2) carries a subject load
considered full-time for day students under the institution’s standards and practices;
and (3) attends school at least 20 hours a week. See 20 C.F.R. § 404.367(a), (b), (c); POMS RS 00205.300(C). The Southern Baptist Academy requires its students to complete 900 hours within
36 weeks, an average of 25 hours a week. The school records the amount of time that
a student spends online in courses, as well as the offline time the student spends
in “Study Hall.” In addition, the school permits the student to submit a log of up
to 110 hours for participation in “Joy Directed Activities.”
However, there is no specific time that a student must attend school each day or each
week, as each student is permitted to work at her own pace. (http://thesouthernbaptistacademy.org/faq.php#Details_flexible_schedule).
Although B~ and A~ stated that they must average 25 hours of classes a week, the school
does not have any weekly attendance requirement. No documentation shows that B~ and
A~ have attended school for at least 20 hours a week. Thus, the agency cannot conclude
that B~ and A~ are in full-time attendance at The Southern Baptist Academy.
CONCLUSION
In conclusion, The Southern Baptist Academy is not an educational institution under
Florida, Texas, or Pennsylvania. B~ and A~ were not enrolled in home school or an
independent study program under Arkansas law. We also cannot conclude that B~ and
A~ are full-time students at The Southern Baptist Academy. Therefore, B~ and A~ are
not full-time students at an educational institution, and their entitlement to child’s
insurance benefits on the number holder’s account stopped once they turned 18.
Michael McGaughran
Regional Chief Counsel
By_________
James D. Sides
Assistant Regional Counsel