You requested our advice concerning an individual's entitlement to child's insurance
benefits following her 18th birthday. To answer this question, we were required to
assess whether the individual's coursework through Ombudsman Learning Center entitled
her to benefits pursuant to section 202(d) of the Social Security Act, 42 U.S.C. §
402(d). Our response was delayed because further development was required in order
for us to fully answer your question. Based on the facts of this case, it is reasonable
to conclude that Jessica is entitled to child's benefits as a full-time secondary
school student until May 18, 2004, her last date of full-time attendance at Ombudsman
Learning Center. See 42 U.S.C. § 402(d).
FACTUAL BACKGROUND
The materials you provided indicate that Jessica A~ applied for child's insurance
benefits beyond age 18 based on her attendance at Ombudsman Learning Center. Jessica
was born on December 31, 1985. She turned 18 years old on December 31, 2003. In a
Student's Statement Regarding School Attendance dated July 8, 2004, Jessica indicated
that she attended Ombudsman Learning Center from September 1, 2003, through May 18,
2004. On August 24, 2004, Dr. Perry H~, Director of Alternative Education for the
North Kansas City Missouri School District, signed the statement and verified that
the information Jessica provided was correct.
On August 2, 2004, an employee of the Gladstone, Missouri Field Office spoke with
Dr. H~. Dr. H~ stated that the Ombudsman Learning Center is a private school of a
non-religious setting that offers all of the basic high school subjects. The students
attending there are considered as "enrolled" in the North Kansas City School District.
The students are counted in the North Kansas City School District's pupil numbers
and attendance for state funding purposes. The North Kansas City School District pays
the tuition for the student, and the student must be enrolled "full-time."
Ombudsman Learning Center offers three separate three-hour daily sessions, five days
a week. The student attends these three-hour sessions at the school. In addition to
attending 15 hours in class per week, each student must participate in at least 15
additional hours per week in "outside" approved activities such as employment, volunteer
work, etc. The "outside" activity must be verified by Ombudsman. For example, if the
"outside" activity is work, then a pay stub or a work schedule has to be submitted
to the school for verification.
Each student has a "home school" within the North Kansas City School District. In
this case, Jessica A~ home school was Winnetonka High School. The Ombudsman Learning
Center keeps a record of Jessica's attendance, and they submit the attendance records
to the North Kansas City School District which also keeps a record. The student's
transcript contains only the classroom hours, but the Ombudsman Learning Center must
also certify to the North Kansas City School District that the student met his or
her 15 hours a week of "outside" activity.
On October 20, 2004, Roseann P~, Manager of Student Records for Ombudsman Learning
Center, provided verification that Jessica completed 407 of the 435 hours of "outside"
activity required. Based on this data, Jessica completed 93.6 percent of the hours
of "outside" activity required or 14.04 hours of "outside" activity per week. In a
letter accompanying the report of "outside" activities, Ms. P~ stated
Additional hours can be achieved through a variety of ways, and will only be accepted
if the activity provides learning enrichment and life skills development for the student.
Documentation of the activity with parent signatures and/or a report must be provided
to the center director. Examples of such activities include:
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Community service or volunteer work
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Attending cultural events
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Viewing a documentary pertaining to history or science
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Visiting local government agencies
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At the end of the school year our staff is required to retain the log of the student's
additional hours but not the documentation of the specific activity.
On October 22, 2004, we spoke with Patrick K~, Director of the Ombudsman Learning
Center, regarding Jessica's "outside" activities. Mr. K~ stated that Jessica participated
in a variety of "outside" activities, including community service projects and other
educational activities. On October 29, 2004, we again spoke with Mr. K~ for clarification
as to why Jessica received a diploma when she did not complete all of the hours of
"outside" activity required by the program. Mr. K~ stated that, if a student completes
89 to 99 percent of a requirement, they are deemed to have mastered the requirement.
Because Jessica completed 93.6 percent of the "outside" hours required, she was considered
to have mastered this requirement.
The credits required by the North Kansas City School District for graduation are based
on the North Central Association accrediting requirements. When the student completes
her required credits, she is considered a graduate of her home high school within
the North Kansas City Schwww.nkcsd.k12.mo.usool District.
On North Kansas City High School's website, Ombudsman Program is listed as an alternative
program offered by the high school. The website also indicates that the Ombudsman
diploma is fully accredited with the standards set by the North Central Association
of Colleges and Schools.
On November 3, 2004, we spoke with Linda M~, a Social Insurance Specialist/Policy
Analyst in the area of Title II Students with the Office of Income Security Programs,
Office of Eligibility and Enumeration Policy, Baltimore, Maryland. After describing
the requirements of the Ombudsman Learning Center to Ms. M~, she opined that it was
within the requirements of an "independent study program." Ms. M~ noted the requirement
in POMS RS 00205.285 that states that an "independent study program" must be recognized under State law.
Ms. M~stated that, since Jessica's diploma was issued by her "home school" within
the North Kansas City School District, this would be enough for the "independent study
program" to be considered to be recognized under State law.
Analysis
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." See 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 of Social Security (in accordance with regulations
prescribed by the Commissioner) in the light of the standards and practices of the
schools involved . . ." 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). Except for two specific exceptions noted in the Social Security
regulations, which will be discussed later, the student must be scheduled to attend
school for at least 20 hours per week in order to be considered a full-time student.
See 20 C.F.R. § 404.367(c) (2004).
The first issue is whether Ombudsman Learning Center qualifies as an educational institution.
Because it is located in Kansas City, Missouri, the answer to this question must be
determined under the law of the state of Missouri. See 20 C.F.R. § 404.367(a) ("[y]ou attend a school which provides elementary or secondary
education as determined under the law of the State . . . in which it is located");
Program Operations Manual System (POMS) RS 00205.200A. Our prior legal opinion, dated November 14, 2002, remains unchanged on this issue.
We believe that Ombudsman Learning Center qualifies as an educational institution
under Missouri law pursuant to 20 C.F.R. § 404.367(a). See Status of Ombudsman Learning Center as an Educational Institution, Jeremy D. F~ (November
14, 2002).
The next issue is whether Jessica is in full-time attendance at Ombudsman Learning
Center. If the child is attending "a school which provides elementary or secondary
education as determined under the law of the State or other jurisdiction in which
it is located," the child must be "in full-time attendance in a day or evening noncorrespondence
course of at least 13 weeks duration which is considered full-time for day students
under the institution's standards and practices."
20 C.F.R. § 404.367(b). In her Statement Regarding School Attendance, Jessica indicated
that the Ombudsman program began on September 1, 2003, and ended on May 18, 2004.
Therefore, the duration of Jessica's course of study was for at least 13 consecutive
weeks. See 20 C.F.R. § 404.367(b); POMS RS 00205.315B.
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
a full-time student. See 20 C.F.R. § 404.367(c). If the student is "in an independent study program . . . [the]
number of hours spent in school attendance are determined by combining the number
of hours of attendance at a school facility with the agreed upon number of hours spent
in independent study." 20 C.F.R. § 404.367(c). An independent study program is described
as an "elementary or secondary education program in accordance with the law of the
State or other jurisdiction in which you reside which is administered by the local
school or school district/jurisdiction." 20 C.F.R. § 404.367(a)(2).
We believe that Jessica's course of study at Ombudsman Learning Center qualifies as
an "independent study program." The POMS defines an "independent study program" as
"run by local education agencies (LEA) such as high schools or school districts, 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." POMS RS 00205.285.A. We believe that the contract between North Kansas City High School and the Ombudsman
Learning Center is enough of a link to be considered to be "administered by" a local
education agency. In addition, we believe that, since Jessica's diploma was issued
by her "home school" within the North Kansas City School District, this would be enough
for the "independent study program" to be considered to be recognized under State
law. See also Status of Ombudsman Learning Center as an Educational Institution, Jeremy D. F~ (November
14, 2002).
As discussed above, Jessica spends 15 hours a week at Ombudsman Learning Center and
14.04 hours a week in an "outside" activity. Combining these hours, Jessica spends
29.04 hours per week working towards her diploma. Because Jessica is enrolled in an
"independent study program" for which hours of attendance at a school facility can
be combined with the number of hours spent in independent study, we believe that Jessica
meets the requirement of 20 hours per week of scheduled attendance and is in full-time
attendance at Ombudsman Learning Center. See 20 C.F.R. § 404.367(a)(2); POMS RS 00205.310.B.
This conclusion is further supported by the fact that Jessica is considered a full-time
student by Ombudsman Learning Center in light of the school's standards and practices.
See 42 U.S.C. § 402(d) and 20 C.F.R. § 404.367(b). Though there is no case law regarding
this subject from Missouri state courts, federal district courts, or the Eighth Circuit
Court of Appeals, an examination of case law from other jurisdictions shows an emphasis
on this factor in conjunction with a broad construction of the Social Security Act
in determining whether an individual is a full-time student based on 20 hours of scheduled
weekly school attendance. See Haberman v. Finch, 418 F.2d 664, 666-667 (2nd Cir. 1969); Okesson v. Shalala, No. 93-1554-PA, 1994 WL 86773 at *3 (D. Or. Aug 9, 1994); Swanson v. Bowen, No. C-86-20621-WAI, 1988 WL 251979 at *2 (N.D. Cal. Feb. 23, 1988);
20 C.F.R. § 404.367(c).
In Haberman v. Finch, 418 F.2d 664, 666-667 (2nd Cir. 1969), a student resumed her schooling at age 17
after a 3-year absence due to a serious illness by enrolling in a private school attending
16 1/2 hours of class a week as an evening high school student. Id. at 665. The student was unable to enroll in any other public or private school and
no other school in the area offered her any more classroom hours. Id. The parties stipulated that the student's class load was equivalent to that of full-time
day instruction. Id. at 665-66. The court noted that the Social Security Act is a remedial statute which
is to be broadly construed and liberally applied. Id.at 666. In addition, legislative history took into account "the standards and practices
of the school involved." Id. at 667. Based on the facts of this case, the court determined that where there was
no question the student was within the class of persons sought to be covered, the
student had diligently pursued her studies and taken the maximum number of hours available
in any accredited school and had "done her level best to comply with the regulations,"
she was eligible to receive continued benefits notwithstanding the regulatory definition
of a full-time student as one attending not less than 20 hours of classes per week.
Id.
In Okesson v. Shalala, No. 93-1554-PA, 1994 WL 686773 (D. Or. Aug. 9, 1994), a student left high school
one month before her scheduled graduation because she was failing a class. Id. at *1. With assistance from her high school principal, the student enrolled in a
community college pursuant to its agreement with her high school that allowed her
to receive credit toward graduation from her high school for completion of courses
from the college. Id. at *1. During the summer, the student enrolled in 2 3-credit hour courses and in
the fall, she enrolled in 4 classes at the college for a total of 10 college credit
hours. Id. Both the student's high school and college certified that her fall classes were equal
or comparable "to 20 hours per week of high school seat time" based on hours spent
outside the classroom studying. Id. at *1-2. The court noted that application of the 20-hour rule "to the unusual facts
here produces a result contrary to congressional intent," which requires that a student's
status be determined "'in light of the standards and practices of the schools involved."
Id. at *3 (citing 42 U.S.C. § 402(d)(7)(A)).
Based on the specific facts of this case, Social Security Regulations, the POMS, and
especially in light of the emphasis in case law on the standards of the involved school
and broad construction of the Social Security Act, we believe that Jessica's attendance
at Ombudsman Learning Center can be considered full-time. Thus, we believe that, from
September 1, 2003, through May 18, 2004, Jessica can be considered to have been in
full-time attendance at Ombudsman Learning Center and benefits can continue until
May 18, 2004, her last date of full-time attendance at Ombudsman Learning Center.
While it is reasonable to conclude that most students attending Ombudsman Learning
Center can be considered full-time students, if there are cases in which there are
questions as to the validity of a student's "outside" activities, please request further
advice.
Frank V. S~ III
Chief Counsel
By
Stacy A. M~
Assistant Regional Counsel