Freedom Project Academy, an internet school located in Wisconsin, is an accredited private school and qualifies as an educational institution.

You asked whether Freedom Project Academy, an internet school located in Wisconsin, is an accredited private school and whether the attendance of L~ (Claimant) at Freedom Project Academy satisfies the full-time attendance requirements under the Agency’s regulations related to eligibility for child’s benefits after the attainment of age eighteen.

Based on the materials submitted, Freedom Project Academy is an accredited private school, but Claimant’s attendance of Freedom Project Academy does not satisfy the full-time attendance requirements under the Agency’s regulations.

Claimant, a resident of Georgia, currently receives child’s insurance benefits on the earnings record of her father, J~ Claimant seeks to continue these payments beyond the age of eighteen based on her attendance with Freedom Project Academy (FPA), an internet school located in Wisconsin.

Based on the information provided and on the FPA website, FPA is located in Appleton, Wisconsin, and is accredited by the National Association of Private Schools. See FPA website, https://www.fpeusa.org/contact; https://www.fpeusa.org/about/who-we-are (last visited December 18, 2018). Additionally, FPA is listed as a private school on the Wisconsin Department of Education private school directory. See Wisconsin Private Schools Directory, https://apps4.dpi.wi.gov/SchoolDirectory/Search/PrivateSchoolsSearch (last visited December 18, 2018).

According to FPA’s online catalogue, to receive a standard track high school diploma, a student must earn twenty units of credit and these must include one or more units of English, History, Math, Finance, Logic and Philosophy, Science, Foreign Language, and electives. See FPA website, https://www.fpeusa.org/Credits-for-Diploma (last visited December 18, 2018). Students in grades 6 through 12 in FPA math, science, and foreign language courses must have a final grade of 70% or higher to be promoted to the next level. In all other classes, a final grade of 60% is required to be promoted to the next grade. Students, who fail any high school course, must retake it if they wish to receive a diploma from FPA. Full-time high school students, who earn the required five credits for each high school year they are enrolled with FPA, will qualify to receive a diploma from FPA. See id. High school students, who take five courses (entailing two, one-hour live classes weekly per course), qualify as having full time attendance at FPA. See FPA website, https://fpeusa.org/student-info/tuition (last visited December 18, 2018); https://fpeusa.org/junior-high-experience (last visited December 27, 2018). Students are also expected to spend approximately 5 hours per week doing homework (time outside of classroom instruction) for each of the five courses for a total of 25 hours per week. See id. FPA stresses that students must attend classes on a regular basis, participate in class discussions, submit assignments on time, and work with teachers to achieve their very best. See FPA website, https://fpeusa.org/student-info/student-expectations (last visited December 27, 2018).

Claimant indicated that she attends FPA 35 hours per week in a home school program and expects to graduate in May 2019.^* [*]It is unlikely that Claimant actually attends 35 hours of live classroom instruction per week as this would entail approximately three and a half times the number of weekly hours required for full time attendance at FPA according to their website. See FPA website, https://fpeusa.org/student-info/tuition. Further, to account for 35 hours of in-class instruction per week, Claimant would be taking 17 courses per year, as opposed to the five courses required for full time attendance at FPA. See id. It is presumed that Claimant is meeting the full time attendance requirements of FPA, which is 10 hours of in-class instruction per week plus 25 hours of homework, for a total of 35 hours per week.

To be eligible for child’s benefits on the earnings record of an insured person, who is entitled to old-age or disability benefits or a person who died fully or currently insured, a claimant eighteen years or older who is not disabled must be a full-time elementary or secondary school student. See Social Security Act (Act) § 202(d)(1)(B)(i); 42 U.S.C. § 402(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2018). A beneficiary also must attend school full time to qualify as a “full-time elementary or secondary school student.” See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.001.A; POMS RS 00205.300.A. A beneficiary attending an online school is in full-time attendance if he or she is attending an educational institution and meets both State and Federal standards for full-time attendance. See POMS RS 00205.295.B; POMS RS 00205.300.A. A beneficiary meets the State standards if the school considers the beneficiary to be a full-time student based on the school’s standards and practices. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b); POMS RS 00205.300.B; POMS RS 00205.350.C.1. A beneficiary meets the Federal standards if he or she is scheduled to attend school at the rate of twenty hours per week, enrolled in a noncorrespondence course, and enrolled in a course of study that is of at least thirteen weeks duration. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C.

Whether an institution is a school providing elementary or secondary education is determined under the law of the state in which it is located. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(b). Because FPA is located in Wisconsin, we look to Wisconsin law to determine if FPA’s on-line program qualifies as an elementary or secondary educational institution.

FPA is recognized as a private school by the state of Wisconsin. Under Wisconsin law, an institution is a private school if its educational program meets all of the following criteria:

(a) The primary purpose of the program is to provide private or religious-based education.

(b) The program is privately controlled.

(c) The program provides at least 875 hours of instruction each school year.

(d) The program provides a sequentially progressive curriculum of fundamental instruction in reading, language arts, mathematics, social studies, science and health. This subsection does not require the program to include in its curriculum any concept, topic or practice in conflict with the program's religious doctrines or to exclude from its curriculum any concept, topic or practice consistent with the program's religious doctrines.

(e) The program is not operated or instituted for the purpose of avoiding or circumventing the compulsory school attendance requirement under s. 118.15(1)(a) and (am).

(f) The pupils in the institution's educational program, in the ordinary course of events, return annually to the homes of their parents or guardians for not less than 2 months of summer vacation, or the institution is licensed as a child welfare agency under s. 48.60(1).

Wis. Stat. 118.165.

FPA meets all requirements of a private school under Wisconsin law. According to its website, the primary purpose of FPA is to provide a course of education. See FPA website, https://www.fpeusa.org/about/who-we-are. Also, it is privately controlled in accordance with Wis. Stat. 118.165(a) and (b). See FPA website, https://www.fpeusa.org/about/who-we-are. A review of the FPA annual class schedule for 2018 demonstrates that FPA offers at least 875 hours of instruction each school year in accordance with Wis. Stat. 118.165(c). See FPA website, https://fpeusa.org/ms-hs-math-classes (last visited December 27, 2018). The FPA class schedule also demonstrates that the school provides instruction in each of the required subjects listed in Wis. Stat. 118.165(d) and the curriculum is sequentially progressive. See id; see also FPA website, https://www.fpeusa.org/Credits-for-Diploma. FPA policies related to compulsory attendance, outlined on the FPA website and in the Parent handbook demonstrate that the program is not operated or instituted to avoid or circumvent compulsory school attendance in accordance with Wis. Stat. 118.165(e). Finally, because FPA is not a residential or boarding school, the provisions in Wis. Stat. 118.165(f) are not applicable. In addition, the Wisconsin Department of Public Instruction recognizes and has listed FPA as a private school on its directory of such operating in Wisconsin. See Wisconsin Private Schools Directory, https://apps4.dpi.wi.gov/SchoolDirectory/Search/PrivateSchoolsSearch.

Although FPA meets the statutory requirements to qualify as a private school under Wisconsin law and although Wisconsin law recognizes private school education as satisfying the state’s compulsory education attendance law, we nevertheless conclude that Claimant’s attendance of FPA does not satisfy the full time attendance requirements under the Act and the Agency’s regulations. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(b). Full time attendance at FPA is satisfied by a student taking five courses a week, which entails attending two, one-hour live classes per course per week, or attending classes for 10 hours per week. See FPA website, https://fpeusa.org/junior-high-experience. Students are also expected to spend approximately 5 hours per week doing homework (time outside of classroom instruction) for each of the five courses for a total of 25 hours per week. See id. These numbers correspond to Claimant’s report of attending FPA in a homeschool program for 35 hours per week. However, attending online classes 10 hours per week, as detailed on FPA’s website, does not satisfy federal attendance requirements of 20 hours of instruction per week. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C. Therefore, we conclude that Claimant attendance of FPA does not satisfy the full time attendance requirements under the Agency’s regulations.

We also examined whether Claimant’s attendance at FPA would meet the requirements of a home study program. A claimant can also satisfy the “attendance” requirement if she participates in a home schooling program in accordance with a home school law of the state in which she resides. See 20 C.F.R. § 404.367(a)(1). As noted above, Claimant is a resident of Georgia. Under Georgia law, a parent may teach his or her child in a home study program, provided the parent and home study program comply with numerous requirements, including: the parent must submit a declaration to the local school district; the parent must have at least a high school diploma or a general educational development diploma, or employ a tutor who holds a high school diploma or a general educational development diploma; the home study program must provide instruction each year equivalent to 180 school days of education; the parent must keep attendance records and submit them to the local school district; the student must be subject to an appropriate nationally standardized testing program; and the home study program instructor must write an annual progress assessment report. See Ga. Code. Ann. § 20-2-690(c). The FPA website indicates that it is the parent’s responsibility to comply with various states’ home school laws. See FPA website, https://hslda.org/content/hs101/GA.aspx (last visited December 27, 2018); HSLDA website, https://hslda.org/content/hs101/GA.aspx (last visited December 27, 2018). The information provided does not indicate Claimant’s parent met or complied with the requirements of Georgia’s home schooling law. Thus, if Claimant is being home schooled, the information currently available does not establish that she is instructed in secondary education at home in accordance with Georgia law. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275.B.

Although FPA is a private school under Wisconsin law, Claimant does not met the federal requirement for full-time attendance. Additionally, the materials provided do not demonstrate that Claimant meets the requirements under Georgia law for home school education. Therefore, Claimant has not established entitlement to continuation of child’s insurance benefits under the provisions of section 202(d)(1)(B)(i) of the Act. If we may provide additional assistance, please contact Richard Blake at 404-562-1436.

The General Education Development Option #2 (GEDO #2) program that is offered at North High School in Sheboygan, Wisconsin is an approved secondary-level school program pursuant to Wisconsin law.

QUESTION PRESENTED

You asked whether the General Education Development Option #2 (GEDO #2) program, offered at North High School in Sheboygan, Wisconsin, is an approved secondary-level educational program for purposes of receipt of Student’s Benefits.

For the reasons discussed below, we conclude that the GEDO #2 program is an approved secondary-level educational program pursuant to Wisconsin law, thereby qualifying the claimant for Student’s Benefits.

Based on the information provided, the claimant also meets the requirement for full-time attendance.^[1]

BACKGROUND

The claimant, S~, is seeking child insurance benefits (CIB) due to her status as a full-time student in the GEDO #2 program at North High School (North). With her application, the claimant submitted Form SSA-1372-BK dated October 9, 2013. In the form, the claimant indicated that she is scheduled to attend a “GED” program on a full-time basis (20 hours per week) during the period of September 3, 2013 – June 11, 2014. The claimant listed an anticipated high school graduation date of June 2014.

The SSA 1372-BK form was certified by North Associate Principal Pamela on October 14, 2013. Pamela certified that the information provided by the claimant was correct, and that the school’s course of study was at least 13 weeks in duration.

The field office completed a Report of Contact indicating that an employee contacted Pamela in November 2013. At that time, Pamela confirmed the claimant’s participation in GEDO #2, which she indicated was scheduled for 20 hours per week, through the end of the school year. Pamela also indicated that the GEDO #2 classes are held at the local high school (North).

Thereafter, Pamela provided information from the Wisconsin Department of Public Instruction regarding the GEDO #2 program.

DISCUSSION

The Social Security Act (Act) provides for the payment of CIB to certain children of individuals who are entitled to old-age or disability insurance benefits or who died as fully or currently insured individuals. See Section 202(d)(1) of Act. As relevant here, to qualify for student benefits, a claimant must be at least 18 years old but under age 19 and a full-time elementary or secondary school student. See Section 202(d)(1)(B) of the Act; 20 C.F.R. § 404.350(1)(5). If the claimant is not under a disability, benefits terminate when he turns 19 years old, regardless of educational status. See Section 202(d)(1)(F)(ii) of the Act.

“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.” Section 202(d)(7)(C)(i) of the Act; see also 20 C.F.R. § 404.367(a). The POMS refers to such a school as an “educational institution.” See POMS RS 00205.200A. Under the POMS, it is generally assumed that American public schools are educational institution (EI), absent evidence to the contrary; a non-public school cannot be assumed to be an EI. See POMS RS 00205.250B.

I contacted the Wisconsin Department of Public Instruction (WDPI) for clarification of the GEDO #2 program. According to Beth, a WDPI consultant, the name GEDO #2 is a misnomer, as it is not an actual General Education Development (GED) preparation program. Instead, GEDO #2 is part of a State-authorized alternative education program designed to allow “credit-deficient” high school students age 17 and older to complete high school and earn a traditional high school equivalency diploma (HSED).^[2] Beth stated although the GED test is a part of the program, GEDO #2 is not a GED test preparation program, as the ultimate goal is to obtain a high school equivalency diploma (HSED).

This comports with information found on the WDPI website. According to WDPI, the GEDO #2 program allows authorized public school districts to use the GED test battery to measure proficiency in lieu of high school credit for students enrolled in an alternative education program. Seehttp://alternativeed.dpi.wi.gov/alted_gedo2 (last visited April 9, 2014). Specifically, the website indicates that GEDO #2 utilizes the GED battery of tests only to prove competency in core areas of the curriculum (mathematics, science, social studies, and language arts). However, students must also prove competency in other areas that comprise the Wisconsin HSED, including health, civic literacy, employability skills, and career awareness. Notably, a GED certificate is not awarded in conjunction with the GEDO #2 program.^[3] Instead, successful completion of the program results in a traditional HSED.

Based on the information gathered and received from WDPI, as well as publicly available information, we conclude that the GEDO #2 is not a GED preparation program, such that it would be considered under POMS RS 00205.340. Instead, it is an alternative high school education program that should be examined under POMS RS 00205.250. Because North is a public school, we assume it is an EI under POMS RS 00205.250B, as we have no evidence to the contrary. Additionally, the GEDO #2 program at North is administered by the public school district, and is authorized by WDPI as an alternative program of high school study. http://alternativeed.dpi.wi.gov/files/alternativeed/pdf/ged_02_list.pdf last visited April 9, 2014).

Furthermore, Ms. D~ confirmed that students participating in GEDO #2 are considered as having a full-time enrollment status in their public school districts. As such, the GEDO #2 program at North High School^[4]

Zion Christian School (ZCS) in Wisconsin does not provide education in accordance with Wisconsin law. Thus, it is not an educational institution for SSA purposes.

This is with reference to your request for an opinion as to whether Zion Christian School (ZCS) qualifies under Section 202(d)(7) of the Social Security Act as a school that provides elementary or secondary education. At issue is the payment of benefits to Laurie , a beneficiary who is enrolled at ZCS, but who studies at home due to a medical condition.

In our opinion, it would not be legally supportable for the Social Security Administration (SSA) to conclude that ZCS provides an education as determined under Wisconsin law because ZCS does not meet all of the requirements under Wisconsin's compulsory school attendance statute. As a result, ZCS cannot be recognized as an educational institution (EI) for SSA purposes. The basis for our conclusion follows.

DISCUSSION

Section 202(d)(7)(C)(i) of the Act states that:

An "elementary or secondary school" is 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.

20 C.F.R. S 404.367(a) restates the statutory definition.

We do not believe that Wisconsin would recognize ZCS as a home-based educational program or as a private school because ZCS does not provide education in accordance with Wisconsin law. Our office has previously advised that a home-based educational program may qualify as an EI under Wisconsin law for SSA purposes. See, e.g., OGC-V (M~) to RC-SSA-V (P~), "Full-Time Secondary Student Under Section 202(d)(7) - Debra,," (SSN: ~), 9/29/88. However, in that case, the beneficiary was in a "home-based private educational program," as defined at Wis. Stat. Ann. § 115.001(3g). The Wisconsin statute defines home-based private educational program as follows:

"Home-based private educational program" means a program of educational instruction provided to a child by the child's parent or guardian or by a person designated by the parent or guardian. An instructional program provided to more than one family unit does not constitute a home-based private educational program. (Emphasis added).

Wis. Stat. Ann. § 115.001(3g). In the present case, the beneficiary is not enrolled in a home-based private educational program because ZCS is not a school designed to provide education to one family unit. In fact, ZCS is a "private" school that has eleven students enrolled. Further, there is no indication in the materials provided to us that the beneficiary is tutored regularly by a parent or a teacher. Unlike a home-schooling situation, it appears here that ZCS does not offer the beneficiary educational instruction, although it does provide her with educational materials and it counts her in its enrollment. Home-schooling cannot relieve a student of his or her obligation to attend classes. Rather, home-schooling merely enables the student to receive the required instruction in the home. Vis. Stat. Ann. §§ 118.15(4); 118.165(1). Thus, Zion Christian School is not providing the beneficiary with a "home-based private educational program."

However, ZCS may still be considered an EI if it qualifies as a private school, as defined at Wis. Stat. Ann. § 115.001(3r) and Wis. Stat. Ann. § 118.165(1). Wis. Stat. Ann. § 115.001(3r) defines private school as follows:

"Private school" means an institution with a private educational program that meets all of the criteria under s. 118.165(1) or is determined to be a private school by the state superintendent under s. 118.167.

With respect to the latter requirement, we are aware of no information which indicates that the state superintendent has determined that ZCS is a private school under Wis. Stat. Ann. § 118.167. Further, contrary to what is required in the above statute, ZCS does not "meet[] all of the criteria under s. 118.165(1)", and therefore, ZCS cannot qualify as a private school. ^[5] Wis. Stat. Ann. § 118.165(1), provides:

(1) An institution is a private school if its educational program meets all of the following criteria: (a) The primary purpose of the program is to provide private or religious-based education. (b) The program is privately controlled. (c) The program provides at least 875 hours of instruction each school year. (d) The program provides a sequentially progressive curriculum of fundamental instruction in reading, language arts, mathematics, social studies, science and health. This subsection does not require the program to include in its curriculum any concept, topic or practice in conflict with the program's religious doctrines or to exclude from its curriculum any concept, topic or practice consistent with the program's religious doctrines. (e) The program is not operated or instituted for the purpose of avoiding or circumventing the compulsory school attendance requirement under s. 118.15(l)(a). (f) The pupils in the institution's educational program, in the ordinary course of events, return annually to the homes of their parents or guardians for not less than 2 months of summer vacation, or the institution is licensed as a child welfare agency under s. 48.60(1). (Emphasis added).

We have not been provided with any information regarding whether ZCS meets all of the above criteria. However, ZCS appears to be in violation of Wis. Stat. Ann. § 118.165(l)(e) because the statute requires all private schools to operate in compliance with the compulsory school attendance requirement at Wis. Stat. Ann. § 118.15(l)(a). Wis. Stat. Ann. § 118.15(l)(a) provides:

(l)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age. (Emphasis added).

Thus, the Wisconsin compulsory school attendance statute requires that a child enrolled in a private school must attend the school when it is in session. ^[6]

Further, as stated at Wis. Stat. Ann. § 118.165(1)(e), the program cannot be operated for the purpose of avoiding or circumventing the compulsory school attendance requirement. It does not appear to be sufficient that the beneficiary studies at home 24 hours per week. ^[7] School attendance in Wisconsin is compulsory by statute for all children. Panitch v. State of Wisconsin 444 F.Supp. 320, 322 (E.D. Wis. 1977). Contrary to the requirements of the compulsory attendance statute, the information you provided states that the main reason Laurie left the public school system and enrolled at ZCS was because she was unable to attend public school regularly due to her illness. Consequently, and in direct contradiction with the requirements of Wis. Stat. Ann. § 118.165(1), a result of the beneficiary choosing to attend ZCS is the circumvention of the compulsory school attendance requirement. ^[8] Further, ZCS permitted the beneficiary to enroll without requiring her attendance in class. Therefore, ZCS cannot be considered a private school, as defined at Wis. Stat. Ann. § 118.165(1).

The Wisconsin compulsory education law has been reviewed in Wisconsin courts. As stated above, the court has found that school attendance is compulsory by statute for all children. Panitch v. State of Wisconsin, supra, 444 F.Supp. at 322. Likewise, the Attorney General for the State of Wisconsin recently determined that, unless the correct statutory procedures were followed, the parents of a child with exceptional educational needs could not remove their child from his public school placement one day a week to attend a private education service. Op. Atty. Gen. 18-90 (May 30, 1990)(attached). The Attorney General stated that "[i]f the child is not attending the specified school during the full period and hours, the compulsory education law is violated." Likewise, under Wisconsin law Laurie's parent or guardian is required to seek approval from the school board if Laurie chooses to pursue an unconventional form of education.

In our opinion, under the principles outlined in this opinion, the foregoing facts establish that ZCS does not provide education recognized under Wisconsin's compulsory attendance law. Therefore, we believe that Wisconsin would not recognize ZCS as a home-based educational program or as a private school since the State may prosecute Laurie's parent or guardian for failure to comply with the compulsory attendance requirement. Thus, there is no adequate legal basis for SSA to conclude that ZCS is an EI for SSA purposes.

[I]n full-time attendance in a day or evening noncorrespondence course and [] carrying a subject load which is considered full-time for day students under the institution's standards and practices, with scheduled attendance at the rate of at least 20 hours per week and a course of study which is at least 13 weeks in duration.