You requested a legal opinion regarding whether Herington Community Learning Center
(HCLC), an Educational Services and Staff Development Association of Central Kansas
(ESSDACK) Learning Center, is an educational institution within the meaning of the
Kansas education statutes and 42 U.S.C. § 402(d)(7). Based on the facts of this case,
it is reasonable to conclude that HCLC is an educational institution within the meaning
of the Kansas education statutes and 42 U.S.C. § 402(d)(7).
FACTUAL BACKGROUND
The materials you provided indicate that Jessica B~ has requested reinstatement of
auxiliary benefits based on her alleged full-time attendance at HCLC. HCLC is an ESSDACK
Learning Center. In response to a request from a Social Security Administration office,
Julie S~, the Site Director at HCLC, explained that HCLC was considered a Drop-Out
Recovery Program or Adult Education Recovery Center. She noted that USD 487 Herington
High School issued the credits, transcripts, and diplomas for students attending HCLC.
Ms. S~ indicated that HCLC does not have attendance requirements or signed agreements
with students regarding requirements. HCLC does track students’ progress toward their
high school diplomas. Ms. S~ further explained that students can complete their coursework
at home or at the facility.
Attendance records from HCLC show that Jessica attended 22.01 hours in August 2009,
16.11 hours in September 2009, 11.38 hours in October 2009, 3.06 hours in November
2009, 0 hours in December 2009, and 48.79 hours in January 2010. Jessica also reported
working on coursework online from home for approximately four or five hours each day
since August 2009.
On March 9, 2010, we contacted Kevin I~, an attorney in the Legal Department of the
Kansas State Department of Education, to obtain information regarding the formation
and operation of ESSDACK. Mr. I~ stated that ESSDACK was an interlocal cooperative
under Kan. Stat. Ann. § 72-8230. Under this statute, the “boards of education of any
two or more school districts [may] enter into a school district interlocal cooperation
agreement for the purpose of jointly and cooperatively performing any of the services,
duties, functions, activities, obligations or responsibilities which are authorized
or required by law to be performed by school districts of this state.” Kan. Stat.
Ann. § 72-8230(a). The statute requires that the interlocal cooperative establish
a board of directors consisting of “members of boards of education of school districts
party to the [interlocal cooperation] agreement.” Kan. Stat. Ann. § 72-8230(a)(1).
Mr. I~ explained that while an interlocal cooperative is not a school district, it
has the same powers as a school district except for the power to levy and collect
taxes. See Kan. Stat. Ann. § 72-8230(b).
We also spoke with Terri P~, Director of Student Services at ESSDACK, on March 9,
2010, in order to obtain more information about the ESSDACK Learning Centers. Ms.
P~ explained that the requirements at each ESSDACK Learning Center depend on the requirements
of the specific high school that issues the credits, transcripts, and diplomas. She
noted that the ESSDACK Learning Centers do not require a specific number of hours
of attendance each week and that students work at their own pace to complete the coursework
required for graduation from the high school with which the center is associated.
Ms. P~ further noted that ESSDACK students are not considered students of ESSDACK
but students of the high school with which the center is associated. She indicated
that she advised students to work on their coursework 20 hours each week.
For further information regarding the relationship between HCLC and Herington High
School, we contacted Mark C~, the Assistant Principal at Herington High School, on
March 9, 2010. Mr. C~ explained that Herington High School issues the credits, transcripts,
and diplomas for students at HCLC. He noted that students who drop out of Herington
High School may attend HCLC. In addition, students who fail one or more courses at
Herington High School may attend HCLC and recover those credits. Mr. C~ indicated
that students who attend HCLC to recover credits or to receive their high school diploma
after dropping out must pay for the services at HCLC. He noted that other students,
who are referred to HCLC by Herington High School, do not have to pay for the services
at HCLC. Mr. C~ explained that Herington High School could refer up to five students
each year to HCLC.
On March 10, 2010, we contacted Cherie N~, an education program consultant at the
Kansas State Department of Education, for further information regarding ESSDACK. Ms.
N~ explained that the virtual component of ESSDACK’s services had been approved by
the Kansas State Department of Education. She clarified that this approval did not
operate as an approval of all of the services provided by every ESSDACK Learning Center.
We contacted Ms. S~ on March 10, 2010, to obtain more information regarding HCLC.
Ms. S~ noted that a student generally must attend a total of two six-hour days after
enrolling in HCLC. She noted that HCLC has waived this requirement for only one student
who needed to work only from home. She explained that there are no attendance requirements
other than completing the two six-hour days. Ms. S~ indicated that all students at
HCLC are completing high school coursework and that all of their credits are issued
through Herington High School. On March 22, 2010, we spoke with Ms. S~ again. Ms.
S~ indicated that students must complete the required two six-hour days within one
month of enrollment. After completing the two six-hour days, a student is considered
full-time and will continue to be considered full-time during that academic year as
long as he or she completes at least one assignment each month. To be counted as a
full-time student for the next academic year, the student would need to attend two
six-hour days again.
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] (in accordance with regulations prescribed
by [him]) 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) (2009).
The issue is whether HCLC qualifies as an educational institution under Kansas law.
See 20 C.F.R. § 404.367(a); Program Operations Manual System (POMS) RS 00205.200A. HCLC is an ESSDACK Learning Center. Initially, we note that we issued a legal opinion
in 2002 finding that a Reno County ESSDACK Learning Center qualified as an educational
institution under Kansas law. See Memorandum, “Status of the Reno County/Educational Services and Staff Development
Association of Central Kansas Learning Center as an Educational Institution . . .
,” Region VII to RC, SSA, April 18, 2002 (Reno County Memorandum). In developing our
response to that request, we contacted Kevin I~, an attorney in the Legal Department
of the Kansas State Department of Education, who opined that ESSDACK would be treated
as a school by the Kansas State Department of Education. We again contacted Mr. I~
on March 9, 2010, in developing our response to this request. Mr. I~ stated that ESSDACK
was an interlocal cooperative under Kan. Stat. Ann. § 72-8230. Under this statute,
the “boards of education of any two or more school districts [may] enter into a school
district interlocal cooperation agreement for the purpose of jointly and cooperatively
performing any of the services, duties, functions, activities, obligations or responsibilities
which are authorized or required by law to be performed by school districts of this
state.” Kan. Stat. Ann. § 72-8230(a). Mr. I~ explained that while an interlocal cooperative
is not a school district, it has the same powers as a school district except for the
power to levy and collect taxes. See Kan. Stat. Ann. § 72-8230(b).
Herington High School’s Assistant Principal, Mr. C~, stated that Herington High School
issues the credits, transcripts, and diplomas of students at HCLC. The Director of
Student Services at ESSDACK, Ms. P~, noted that students at ESSDACK Learning Centers
follow the requirements of the particular high school with which they are associated.
She also stated that ESSDACK Learning Centers do not have students because the students
who use their centers are considered students of the high school with which their
center is associated. Ms. S~, Site Director at HCLC, noted that upon enrollment at
HCLC, a student generally must attend two six-hour days. Based on our contact with
the Kansas State Department of Education, Herington High School, ESSDACK, and HCLC,
we believe that HCLC would be considered a school which provides secondary education
under Kansas law, and thus, would be considered an educational institution.
The next issue is whether Jessica is in full-time attendance at HCLC. 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). The evidence from
Jessica and HCLC indicate that her course of study was at least 13 weeks duration.
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). The POMS further
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.
As discussed above, HCLC is part of ESSDACK, and several school districts agreed to
create ESSDACK under Kan. Stat. Ann. § 72-8230, which allows for interlocal cooperation
agreements. At HCLC students generally must attend two six-hour days within one month
of enrollment, but are then free to complete their coursework at the facility or from
another location. Based on statements from Ms. S~ and Ms. P~, we believe that HCLC
qualifies as an “independent study program.” We have previously found that similar
programs qualified as independent study programs. See Reno County Memorandum; Memorandum, “Status of the Lawrence Diploma Completion Program
and the South Central Kansas Education Service Center’s Diploma Completion Program
as an Independent Study Program . . . ,” Region VII to RC, SSA, August 24, 2006 (Lawrence
Memorandum). Therefore, because Jessica is enrolled in an independent study program,
the number of hours 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. See 20 C.F.R. § 404.367(c).
Considering Jessica’s statements regarding her work from home and HCLC’s statements
regarding her attendance at the facility, Jessica has spent at least 20 hours in school
attendance each week and can be considered to be in full time attendance. See 20 C.F.R. § 404.367(a)(2). Because a student enrolling at HCLC generally must attend
only two six-hour days during the academic year, any student meeting this requirement
has fulfilled HCLC’s attendance requirements and therefore is a full-time student
in light of the school’s standards and practices. See 42 U.S.C. § 402(d)(7)(A) and 20 C.F.R. § 404.367(b). Kansas State Department of Education
guidelines on counting students for funding purposes further support this conclusion.
Under the formula, a school would most likely be able to “count” a student attending
two six-hour days within certain time periods. See Kansas State Department of Education, Counting Kids Handbook 13 (July 2009), available at http://www.ksde.org/Default.aspx?tabid=455. The formula is similar for virtual schools. See Kansas State Department of Education, Virtual Education Requirements for Kansas (August 12, 2008), available at http://www.ksde.org/Default.aspx ?tabid=455. Because HCLC records show that Jessica has completed coursework at the
facility and apparently attended two six-hour days we believe that Jessica could be
considered a full-time student in light of the school’s standards and practices.
There is no case law regarding this subject from the Tenth Circuit Court of Appeals
or the Kansas state or federal district courts. However, as explained in our previous
opinions on the Reno County ESSDACK Learning Center and the Lawrence Diploma Completion
Program, the cases on this issue support a liberal application of the Social Security
Act. See Haberman v. Finch, 418 F.2d 664 (2nd Cir. 1969); Okesson v. Shalala, No. 93-1554-PA, 1994 WL 686773 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, 1998).
CONCLUSION
Based on the specific facts of this case, we believe that HCLC qualifies as an educational
institution and that Jessica qualifies as a full-time student.
Sincerely,
Kristi A. S~
Regional Chief Counsel
By: __________________________
Katherine H~
Assistant Regional Counsel