The Arkansas Virtual Academy, an on-line open-enrollment public charter school for grades K-12, complies with Arkansas law and qualifies as an educational institution for SSA student benefit purposes.

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.

Ouachita Hills Academy is an educational institution that provides elementary or secondary education under the Arkansas law.

QUESTION

You have asked whether Ouachita Hills Academy meets the requirements of an educational institution under the Social Security Act (the Act) and whether S~’s attendance at Ouachita Hills Academy qualifies her as a full-time student of an elementary or secondary school.

ANSWER

We believe that Ouachita Hills Academy is an educational institution under the Act because it provides elementary or secondary education under the laws of the State of Arkansas, the state in which Oauchita Hills Academy is located. However, we do not have sufficient information to verify whether S~ is a full-time student of Ouachita Hills Academy because the evidence does not document Ouachita Hills Academy’s standards and practices regarding the course load required for full-time attendance.

BACKGROUND

The facts as we understand them indicate that S~ became entitled to child’s insurance benefits in June 2010 when her father, the number holder, began receiving retirement benefits. S~ resides in Arkansas, and she is not married. After S~ attained age 18 in January 2012, the agency terminated her child’s insurance benefits effective June 2012.

On September 3, 2012, S~ completed SSA Form 1372, Student’s Statement Regarding School Attendance, stating that she was attending Ouachita Hills Academy in Amity, Arkansas. She identified Oauchita Hills Academy as a high school program. S~ stated that the school year began August 20, 2012, and would end May 26, 2013, at which time she would graduate. S~ reported she was scheduled to attend classes for 42 hours a week.

Oauchita Hills Academy’s principal certified that the information S~ provided was correct according to the school’s records. The principal confirmed that Oauchita Hills Academy’s course of study was at least 13 weeks duration and that Oauchita Hills Academy operated on a semester basis with no reenrollment necessary. When the agency contacted the principal for further information, she stated that Oauchita Hills Academy is a privately owned/funded school and that Arkansas does not require a private school to have any accreditation. The principal confirmed that Oauchita Hills Academy does not have any accreditation, and the Arkansas Department of Education does not approve Oauchita Hills Academy’s academics and testing. She stated that Oauchita Hills Academy operates a normal school schedule of Monday through Friday, 8 a.m. to 5 p.m., with holiday closings similar to the public schools. The principal reported that 100% of the student’s education takes place in the classroom, and that the courses Oauchita Hills Academy offers include English Language Arts, Math, Science, Social Studies, Electives, AP courses, and an ACT prep course. The students are not required to take a high school equivalency test to receive a high school diploma; they only have to successfully complete Oauchita Hills Academy’s course work.

ANALYSIS

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.^[5] 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.^[6] See 20 C.F.R. § 404.367(a). A student who participates in one of the following programs may also meet the requirments 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^[7] ; or 2) a student is 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 the local school or school district/jurisdiction administers.^[8] 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 as a home school or independent study 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). 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).

In this case, S~ is not home schooled or enrolled in an independent study program. In addition, there is no evidence that Ouachita Hills Academy does not schedule at least 20 hours per week or that S~ has a medical condition that prevents her from attending school at least 20 hours per week. Thus, we look at whether Ouachita Hills Academy meets the requirements of an educational institution under the Act and whether her attendance qualified her as a full time student under Ouachita Hills Academy’s standards and practices.

Ouachita Hills Academy is an educational institution because it provides elementary or secondary education, as determined under the laws of the state in which it is located, per 20 C.F.R. § 404.367(a)

We first address the question of whether Ouachita Hills Academy qualifies as an educational institution under Arkansas law, where it is located. 20 C.F.R. § 404.367(a).

Arkansas requires that all children between the ages five and seventeen must be enrolled in a public, private, parochial, or home school. Ark. Code Ann. § 6-18-201(a). Here, Ouachita Hills Academy is not a public school, and the evidence you provided does not show that S~ was in a home school program. However, Oauchita Hills Academy can still qualify as an educational institution under Arkansas law if it is a private or parochial school.

Arkansas law neither defines private or parochial schools nor provides any accreditation requirements for a private or parochial school. See Burrow v. State of Arkansas, 669 S.W.2d 441, 483-84 (Ark. 1984) (dissenting opinion).^[9] Further, Arkansas law does not require licensing for a private institution offering instruction at any levels from preschool through twelfth grade. See Ark. Code. Ann. § 6051-603.^[10] Because Arkansas law does not explicitly define private or parochial school and the legislature has not indicated its intent for any specialized definition of the terms, rules of statutory construction dictate that the terms have their common meaning. Thus, we consider a private school to be “a school that is established, conducted, and primarily supported by a nongovernmental agency.” Merriam-Webster’s Collegiate Dictionary 988 (11th ed. 2003). A parochial school is a subset of private schools, defined as “a private school maintained by a religious body usu[ally] for elementary and secondary instruction.” Merriam-Webster’s Collegiate Dictionary 902 (11th ed. 2003).

Here, Ouachita Hills Academy is a private school. As you noted, Oauchita Hills Academy’s website indicates that it is privately owned and funded. See Ouachita Hills Academy, http://www.ouachitahills.org/academy. Oauchita Hills Academy provides secondary instruction and awards high school degrees upon a student’s completion of Oauchita Hills Academy’s curriculum. Id. Although you noted that Ouachita Hills Academy is not accredited through the Arkansas Nonpublic School Accrediting Association (ANSAA), Arkansas law does not require a private school to be accredited through ANSAA. Instead, ANSAA is a nonprofit educational organization that is not connected to any branch of Arkansas government. See ANSAA, History, http://www.ansaa.com/history.htm. ANSAA provides guidance and assistance to nonpublic schools in Arkansas. ANSAA, http://www.ansaa.com. While the Arkansas Department of Education must accredit an Arkansas public school, there is no similar mandatory accreditation requirement for nonpublic schools in Arkansas. See ANSAA, History, http://www.ansaa.com/history.htm. Rather, membership in ANSAA is voluntary for a nonpublic school in Arkansas. Id. Thus, Ouachita Hills Academy’s decision to not seek accreditation through ANSAA does not affect its status as a private school under Arkansas law.

Arkansas law does not make it mandatory for a private school to obtain accreditation; rather, it is optional. In fact, ANSAA indicates that 89 schools are members of the association. ANSAA, http://www.ansaa.com. On the other hand, the Arkansas Department of Education, which collects private school information for inclusion in its Statewide Information System, lists at least 140 private schools in Arkansas. A search of the Arkansas Department of Education’s Statewide Information System lists Ouachita Hills Academy in Amity, Arkansas, as a private school, offering education from kindergarten through twelfth grade. See Ark. Dep’t of Educ., Statewide Information System Reports, http://adedata.arkansas.gov/statewide/Schools/PrivateSchools.aspx?year=22&search=ouachita%20hills%20academy. Despite Oauchita Hills Academy’s lack of any accreditation, we conclude that a child attending Ouachita Hills Academy is attending a private school providing elementary or secondary education that satisfies Arkansas’ law. Thus, Oauchita Hills Academy is an educational institution under the Act.

We do not have sufficient information to determine whether S~ is a full-time student at Ouachita Hills Academy, per 20 C.F.R. § 404.367(b)-(c)

Next, we address the issue of whether S~ is a full-time student at Ouachita Hills 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).

Here, the evidence indicates that S~ satisfies the first and third requirements for a full-time student. 20 C.F.R. § 404.367(a), (c). Ouachita Hills Academy provides in-class, high school education from 8 a.m. to 5 p.m., five days a week. The school year extends from August 2012 to May 2013, with similar holidays as the public schools take. Thus, S~ attends a day, non-correspondence course of at least 13 weeks duration. S~ also certified that she is scheduled to attend Oauchita Hills Academy 42 hours a week. Thus, she attends school at least 20 hours a week.

Although she satisifies the first and third requirements, we cannot determine whether S~ satisfies the second requirement for a full-time student: whether she carries a subject load considered full-time for day students under Oauchita Hills Academy’s standards and practices. 20 C.F.R. § 404.367(b). The evidence provided does not indicate what Oauchita Hills Academy’s standards and practices are regarding the subject load that qualifies a student as being in full-time attendance. We were also unable to locate any information on the Oauchita Hills Academy’s website that described the subject load that Oauchita Hills Academy considered full-time for a day student. However, Oauchita Hills Academy’s student handbook for the academic years 2009 through 2012 states that “a student must be enrolled in a minimum of five classes at all times (excluding choir, music, and vocational training). See Ouachita Hills Academy Student Handbook 2009 through 2012, http://www.ouachitahills.org/academy/templates/oha/docs/OHA_Handbook_09-12.pdf, at 4. To the extent that enrollment in a minimum of five classes excluding choir, music, and vocational training constitutes Oauchita Hills Academy’s current standards regarding full-time attendance, we do not have sufficient information of what classes S~ his taking to determine whether she satisifies Oauchita Hills Academy’s standards. Thus, we cannot provide an opinion at the present time that S~ is a full-time student under the Act. Should you obtain additional evidence regarding whether S~ satisifies Oauchita Hills Academy’s standards for full-time attendance, we would be happy to provide a new opinion on this issue, as warranted.

CONCLUSION

In conclusion, Ouachita Hills Academy provides elementary or secondary education under the Arkansas law. Thus, Oauchita Hills Academy is an educational institution under the Act. However, based on the evidence we have, we cannot conclude that S~ is a full-time student at Ouachita Hills Academy.

Michael McGaughran

Regional Chief Counsel

By: James D. Sides

Assistant Regional Counsel