The American School, located in Lansing, Illinois, is an online high school. The Illinois State Board of Education (ISBE) recognizes the American School as a non-public school. By meeting ISBE’s requirements for recognition as a non-public educational entity, the American School also meets the requirements to qualify as a private school under Illinois law and qualifies as an educational institution. In addition to meeting the Federal full-time attendance standard of 20 hours per week, a student must also meet the State standard. A student considered full-time based on the school’s standards and practices meets the State standard. It is unclear whether the American School considers weekly attendance of 20 hours to be full-time according to its standards and practices, and further development is necessary.

QUESTION PRESENTED

You asked whether the American School, an online distance education high school located in Lansing, Illinois, may be considered an educational institution (EI) for purposes of awarding child insurance benefits. In Form SSA-1372-BK, claimant R~ stated that she attends Selah Academy (Selah) in Gary, Indiana. The American School provides all of the actual online instruction in accordance with the partnership it has with Selah. Accordingly, this opinion will assume Ms. T~ is actively enrolled in the American School, and will answer the question of whether the American School can be considered an EI for the purposes of receiving student benefits.

For the reasons discussed below, we conclude that the American School qualifies as an EI for the purpose of awarding child insurance benefits. We further find that there is inconclusive evidence about whether the claimant met the requirements for full-time attendance, and thus recommend further development on this issue.

BACKGROUND

R~, is seeking child insurance benefits (CIB) due to her status as a full-time student at the American School. With her application, the claimant submitted Form SSA-1372-BK dated October 23, 2011 indicating that she attended the American School 35 hours per week from August 2010 to June 2011. She also indicated that she was scheduled to attend the American School 20 hours per week from August 2011 to June 2012, her expected graduation date. The SSA 1372-BK was certified by Selah’s Transition Coordinator L~ on November 7, 2011. Ms. H~ 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 American School’s Guidance Counselor, J~, also certified Ms. T~’s SSA-1372-BK in November 2012. She certified that Ms. T~ was a full-time student from August 2011 until June 2012, but has since become a part-time student.

 

We spoke with the American School’s School Counselor, A~, in order to clarify Ms. T~’s attendance status. Ms. G~ stated that Ms. T~ was not a full-time student at any point since her enrollment in May 2011 until her last examination in September 2013.

 

The American School is recognized as a non-public school by the Illinois State Board of Education (ISBE) (see ISBE Data Analysis and Accountability, Directory of Educational Entities, Historical Files, 2012-13 (available at http://www.isbe.net/grants/pdf/np_directory_county.pdf) (last visited October 22, 2014)).

 

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 his 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 EIs, absent evidence to the contrary; a non-public school cannot be assumed to be an EI. See POMS RS 00205.250B. It does not matter if the school is online, so long as the school meets state law requirements. See POMS RS 00205.295.

 

POMS RS 00205.295 sets forth agency policy with respect to online schools. It defines an online school as “one that offers Internet-based courses to students.” POMS RS 00205.295A.

 

The Act defines “full-time elementary or secondary school student” as an individual who is in full-time attendance at an elementary or secondary school, as determined by the Commissioner of Social Security by regulation. See Section 202(d)(7)(a) of the Act; see also 20 C.F.R. §404.367.

A child attending an online school may be a full-time student if: (1) the student meets the standards for full-time attendance as defined in RS 00205.300, and (2) the online school operates in accordance with the law of the state in which the online school is located. See POMS RS 00205.295B.

 

The American School Qualifies as an Educational Institution

 

As noted above, to be considered an educational institution, a school must provide elementary or secondary school education as determined under the law of the state or other jurisdiction in which it is located. See Section 202(d)(7)(C)(i) of the Act; 20 C.F.R. § 404.367(a); POMS RS 00205.200A. The American School is based in Illinois. To determine whether the American School qualifies as an EI, we must consider whether it qualifies as a private school in compliance with Illinois law.

 

Illinois law defines non-public educational entities as any non-profit, non-home-based, and non-public elementary or secondary school that is in compliance with Title VI of the Civil Rights Act of 1964 and attendance at which satisfies the requirements of Section 26-1 of the Illinois School Code. 105 ILCS § 5/2-3.25o(e) (2011). In Illinois, a child is exempt from attending public school if they attend a “private or parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of a child in the branches of education is in the English language,” 105 ILCS § 5/26-1(1) (2014). Illinois courts have liberally construed the definition of private schools to include home schooling “where the teacher is competent, the required subjects are taught, and the child receives an education at least equivalent to public schooling,” People v. Harrell, 180 N.E. 2d 889, 890 (Ill. App. Ct. 1962) (citing People v. Levisen, 90 N.E. 2d 213 (1950)).

 

Based on Illinois statutes and precedent, the issue in determining whether the American School qualifies as a private school under Illinois law is whether students at the American School receive an education at least equal to public schooling. Id.; 105 ILCS § 5/26-1(1) (2014).

 

In Illinois, the ISBE only recognizes non-public educational entities if they meet certain administrative, educational, personnel, and health and safety requirements. 23 Ill. Admin. Code, § 425.30 (2013). Among these requirements are that the school’s instruction be in English, except as otherwise permitted pursuant to statute, and that the instruction is in the same areas of education taught to children of corresponding age and grade in public schools, pursuant to Section 26-1 of the Illinois School Code. 23 Ill. Admin. Code, § 425.30(b)(1) (2013). These areas of education include the language arts, mathematics, the biological, physical, and social sciences, the fine arts, and physical development and health, pursuant to Section 27-1 of the Illinois School Code. Id. Recognition of a non-public educational entity by the ISBE also requires that instructors meet certain criteria to ensure competency and proficiency. 23 Ill. Admin. Code, § 425.30(c).

 

B~, a Program Specialist at the ISBE, confirmed that the American School received recognition as a non-public educational entity and that the American School is the only online school with this recognition. She also stated that the ISBE performs yearly site visits to the American School to ensure that all of the requirements for recognition are being met.

 

We believe by meeting the requirements for ISBE recognition as a non-public educational entity, the American School also meets the requirements to qualify as a private school under Illinois law.

 

Based on the foregoing, we conclude that the American School qualifies as an EI. The information available on the American School’s website and the ISBE’s website demonstrate that the American School operates in compliance with Illinois law, and accordingly, that it meets the requirements of an EI for purposes of awarding CIB.

 

Attendance Requirements

 

You did not ask whether the claimant met the attendance requirements. See 42 U.S.C. §402(d)(1)(B) (requiring “full-time” attendance). In addition to attending a qualifying educational institution, a student must meet both state and federal attendance requirements. POMS RS 00205.300 (A). Federal regulations provide at 20 C.F.R. §404.367 that a student attends full-time if his or her scheduled attendance is at least 20 hours per week in at least a 13-week course, barring certain exceptions. 20 C.F.R. §404.367(b), (c); see also POMS RS 00205.300. State attendance requirements are met if a student is considered full-time based on the school’s standards and practices. POMS RS 000205.300(B).

 

On the SSA-1372-BK, Ms. T~ stated that she was attending school for 35 hours per week from August 2010 to June 2011, but only 20 hours per week from August 2011 to June 2012. In November 2011, Selah’s Transition Coordinator, L~, certified these statements and that Ms. T~’s course of study was at least 13 weeks in duration. In November 2012, the American School’s Guidance Counselor, J~, also certified Ms. T~’s SSA-1372-BK and stated that Ms. T~ was a full-time student from August 2011 until June 2012, but has since become a part-time student.

We spoke with the American School’s School Counselor, A~, in order to clarify Ms. T~’s attendance status. Ms. G~ stated that Ms. T~ was not a full-time student at any point since her enrollment in May 2011 until her last examination in September 2013.

 

Although, the American School’s recognition as a non-public educational entity by the Illinois State Board of Education (ISBE) assures that students meet the state minimum attendance requirements, it is not clear whether Ms. T~’s attendance at 20 hours per week was considered full-time attendance pursuant to the American School’s standards and practices. You may wish to develop this issue further.

 

CONCLUSION

 

For the reasons discussed above, we find that the American School qualifies as an EI, as sufficient evidence indicates that it is an institution that provides an education “as determined under the law of the State” of Illinois.

Kathryn Caldwell

Acting Regional Chief Counsel

Region V, Chicago

 

By: ________________

Emily S. Cohn

Assistant Regional Counsel

Although West Virginia law does not recognize online schools as independent educational institutions, it does permit students enrolled in West Virginia public schools to take online courses to supplement their regular curriculum and to receive credit for those courses at the discretion of the school’s principal, and this opinion modifies PR 10-053 (01/26/2010).

Whitmore School, also known as CompuHigh, is an online high school located in Morgantown, West Virginia. To receive credit for a technology-delivered course, a student must be enrolled in a West Virginia public school. The West Virginia Department of Education must approve distance, online, or virtual learning courses offered for public school credit. At the time of this opinion, there is no evidence that Whitmore School is a West Virginia public or private school, and the school does not appear to meet the state board’s requirements for distance, online, and technology-delivered learning programs. For these reasons, the Whitmore School does not provide secondary education in accordance with West Virginia law and is not an educational institution for SSA purposes.

You have asked whether Whitmore School (also known as CompuHigh), located in the State of West Virginia, can be considered an educational institution for an 18-year-old Illinois resident (Claimant) for purposes of receipt of student benefits.  You have also asked whether Claimant’s attendance at Whitmore School constitutes full-time attendance.  We conclude that Whitmore School is not operating in a manner consistent with the laws of the State of West Virginia and, therefore, is not an educational institution (EI) for purposes of child’s insurance benefits (CIB).  Because Whitmore School is not an EI, Claimant cannot be considered a full-time student. 

BACKGROUND

Claimant, A~, has applied for CIB. With his application, Claimant submitted an SSA-1372-BK form stating that he had been attending Whitmore School, an online high school, since February 15, 2010.  He expects to graduate in June 2011. He attends Whitmore School 20 hours a week. Claimant previously attended Barrington High School in Barrington, Illinois.  However, he began attending Whitmore School after having a large intestine removed and due to his diagnosis of Hirshsprungs disease.  

The SSA 1372-BK form was completed and signed by Kassie S~, a guidance counselor at Whitmore School. Ms. S~ indicated that the information Claimant had provided was correct, that the school’s course of study was at least 13 weeks in direction, and that the school operated on a yearly basis. Ms. S~ verified Claimant’s attendance and anticipated graduation date. 

According to its website, Whitmore School is accredited by the North Central Association Commission on Accreditation and School Improvement (NCA-CASI) and the Southern Association of Colleges and Schools (SACS). Both of these accrediting agencies are recognized by the United States Department of Education. 

DISCUSSION

Section 202(d)(1) of the Social Security Act provides that, under certain circumstances, a child of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, shall be entitled to CIB. One of the requirements for CIB eligibility for a non-disabled  Although Claimant indicates that he is attending Whitmore School at least in part due to a disability caused by his diagnosis of Hirshsprungs disease and the removal of a large intestine, we have not been given any information indicating that Claimant would meet the program definition of disability. child is that the child must be unmarried and either under the age of 18 or a full-time elementary or secondary school student and under the age of 19. 42 U.S.C. § 402(d)(1)(B). For a child who was never under a disability, CIB benefits terminate when the child turns 18 years old if he or she is not a full-time elementary or secondary school student; and benefits terminate at age 19 regardless of the child's educational status. 42 U.S.C. § 402(d)(1)(F).

The Social Security Act specifies that full-time attendance at an educational institution is a prerequisite to receiving child’s insurance benefits. 42 U.S.C. § 402(d).  To be eligible to receive child’s insurance benefits, an individual who is 18 years of age but has not attained age 19 must be a full-time elementary or secondary school student at an educational institution. 42 U.S.C. 402(d)(7)(A); see also 20 C.F.R. § 404.367. The Act further provides 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.” 42 U.S.C. 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a).   

The POMS defines an online school as one that offers Internet-based courses to students. POMS RS 00205.295. A child attending an online school may be a full-time student if:  the student meets the standards for full-time attendance as defined in RS 00205.300, and the online school is consistent with the law of the state in which the online school is located. Id. 

We Could Not Verify That Whitmore School Is An Educational Institution

You have asked whether Whitmore School is an educational institution under West Virginia law. The POMS defines an educational institution as a school which provides elementary or secondary education as determined under the law of the state or other jurisdiction in which it is located. POMS RS 00205.200. 

Under West Virginia law, the state board of education shall promulgate rules for the accreditation, classification, and standardization of all schools in the state and shall determine the minimum standards for the granting of diplomas and certificates of proficiency by those schools. W.Va. Code § 18-2-6(a)(1). An institution of less than collegiate or university status may not grant any diploma or certificate of proficiency on any basis of work or merit below the minimum standards prescribed by the state board. W.Va. Code § 18-2-6(a)(2). The condition of granting or issuing diplomas must be approved in writing by the state board. W.Va. Code § 18-2-6(a)(3).

We first considered that there is no evidence that Whitmore School is a West Virginia public school. Whitmore School does not purport to be a West Virginia public school and we could not locate Whitmore School (also known as CompuHigh) in a state-wide search. 

Whitmore School also does not appear to meet the state board’s requirements for distance, online and technology-delivered learning programs.  The state board has established requirements for distance, online, and technology-delivered learning programs. W.V. ADC § 126-48-1. In order for a student to receive credit for a technology-delivered course, he/she must be a student enrolled in a West Virginia public school W.V. ADC § 126-48-2. Distance, online or virtual learning courses offered for public school credit shall be approved by the West Virginia Department of Education.  In order to register the technology-delivered learning courses for credit, providers shall submit an online registration form to WVDE for approval.  In order for students to receive distance learning courses for credit, a county superintendent or designee shall verify that courses and providers are WDVE approved. W.V. ADC § 126-48-3.1. In short, our research confirms that West Virginia “does not recognize online schools as [independent] educational institutions, [but only] that students may take online courses such as those offered by the West Virginia Virtual School to supplement their regular curriculum and may receive credit for those courses at the discretion of their schools’ principal.” POMS PR 08205.054 West Virginia (10-053).  

We have also considered whether Whitmore school is a private school, such that it could satisfy West Virginia state law requirements.  Under West Virginia state law, a child is exempt from the compulsory public school attendance if the child is attending a private, parochial or other approved school W.Va. Code § 18-8-1(b).  A nonpublic school may be accredited according to the procedures outlined by the West Virginia Board of Education. See W.Va. Code St. R. 126-13C-1. 

In order to be a private school recognized by the State of West Virginia, any new school must send to the state superintendent of schools a notice of intent to operate, name and address of the school and name of the school’s chief administrator. W.Va. Code § 18-28-5.  Private, parochial or church schools must observe a minimum instructional term of one hundred eighty days, maintain annual attendance and disease immunization records, and, upon the request of the county superintendant, furnish the county board a list of the names and addresses of all the children enrolled in the school between the ages of seven and sixteen years. W.Va. Code § 18-28-2. The West Virginia Department of Education’s school directory, which includes public schools, private schools, nonpublic nonsectarian schools, school districts and county offices of education does not recognize Whitmore High School in a state-wide search. See Weshttp://wvde.state.wv.us/ed_directory/index.html?county_id=56t Virginia Department of Education, WV School Directory, found at:  (last visited 8/1/11). 

Therefore, we conclude that Whitmore School is not a school in compliance with the laws of the State of West Virginia and therefore may not be considered an EI. POMS RS 00205.200, 00205.295(B). 

Claimant Is Not In Full-Time Attendance

Claimant may not be considered to be in full-time attendance (FTA) because he is not attending an EI. POMS RS 00205.300A. 

CONCLUSION

Claimant may not be considered to be in full-time attendance (FTA) because he is not attending an EI. POMS RS 00205.300A. 

Grace M. K~

Regional Chief Counsel

By: _________  

Anne M~

Assistant Regional Counsel

The e-Tutor Virtual Learning (e-Tutor) online service in Illinois is an educational institution (EI) for Social Security purposes; however, at the time the regional attorney reviewed it, this online program did not enforce attendance and the e-Tutor web site provides little detail about whether or how it tracks attendance.  In addition to attending an EI, a student must also meet federal full-time attendance (FTA) standards. Since it is not clear that a student at e-Tutor meets the federal requirements for FTA, we cannot establish entitlement to student benefits for a student at e-Tutor.  If a student alleges FTA at an online school in Illinois other than e-Tutor and no legal precedent opinion exists for the school, the adjudicator should follow the  instructions in RS 00205.295 and GN 01010.815 to obtain a legal precedent opinion about its EI status. 

 

QUESTION PRESENTED

Whether Breana M~ can be considered a full-time secondary school student as defined under section 202(d)(7) of the Social Security Act.  

As set forth below, the States of Washington, Oregon, and Idaho, specifically recognize online educational experiences as educational institutions under state law. The State of Alaska only recognizes online schools as correspondence study programs. The educational institution requirements for each state are set forth below.

BACKGROUND

Breana L. M~ received child’s benefits (CIB) on the record of Patrick M~ from September 2001 until December 25, 2009, when she turned eighteen and her benefits were terminated. However, Ms. M~ claims that she is a full-time student at a secondary school, and thus, her benefits should continue. Ms. M~ has indicated that she is studying for her high school diploma using the online school e-Tutor. She is currently taking courses in geometry, U.S. history, English, chemistry, and all-star cheerleading to satisfy her physical education credit. According to Ms. M~, she spends between 35-40 hours a week on her studies, and she must attend class for a minimum of 182 days a year. Ms. M~ is expected to receive her high school diploma in May 2011. Ms. M~ is a New York State resident.

e-Tutor (http://www.e-tutor.com) is an online service that offers “lesson modules” at the primary and secondary school levels. e-Tutor offers a diploma if a child petitions in his or her “junior year,” is enrolled for the entire twelfth-grade year, and accumulates 24 credits. e-Tutor is a product of Knowledge Headquarters, Inc. e-Tutor claims accreditation from the North Central Association Commission on Accreditation and School Improvement (NCA CASI). NCA CASI is a division of AdvancEd. Although e-Tutor and Knowledge Headquarters, Inc. both represent on their websites that they are based in Chicago, Illinois, AdvancEd lists an address for e-Tutor in Boulder, Colorado.

ANALYSIS

Section 202(d)(7)(A) of the Social Security Act defines “full-time elementary or secondary school student” as an individual who is in full-time attendance as a student at an elementary or secondary school as determined in accordance with regulations prescribed by the Commissioner.  The Social Security Act states at section 202(d)(7)(C)(i) 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.

The regulations explain at 20 C.F.R. § 404.367(a) that a person is a “full-time elementary or secondary school student” if he or she attends a school that provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.  It states further that participation in certain programs also meet the requirements of paragraph (a).   For example, a person is a full-time elementary or secondary school student if he or she is instructed in elementary or secondary education at home in accordance with the home school law of the State or other jurisdiction in which he or she resides.   20 C.F.R. § 404.367(a)(1).  

In addition, in order to be considered a “full-time elementary or secondary school student”, the student must be in full-time attendance in a day or evening noncorrespondance course of at least 13 weeks duration and is carrying a subject load which 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 home-schooled, he or she must be carrying a subject load which is considered full-time for day students under standards and practices set by the State or other jurisdiction in which he or she resides.  Id.

The regulations provide at 20 C.F.R. § 404.367(c) that a student is in full-time attendance if his or her scheduled attendance is at least 20 hours per week, unless certain exceptions apply.

The POMS explains at RS 00205.200A that a educational institution (EI) 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.   With regard to home schooling, the POMS states at RS 00205.275 that CIB may be payable if the law of the State in which the home school is located recognizes the home school as an educational institution.

The statute provides that an “elementary or secondary school” is a school that provides elementary or secondary education, respectively, as determined under the law of the State in which it is located.  42 U.S.C. § 402(d)(7)(C)(i).  However, the regulations state that a child may be a full-time elementary or secondary school student if he or she is instructed in elementary or secondary education at home in accordance with the home school law of the State in which he or she resides.  20 C.F.R. § 404.367(a)(1).   Difficulty may arise when it is not clear whether a child is attending a home school or is primarily receiving education through the institution.   Where a student resides in the same state in which the educational institution is located, the distinction is not particularly problematic, as the same state’s law would guide the Agency in determining whether the institution is an elementary or secondary school and whether the child is attending a home school.  However, in cases like those at issue here, the institution is located in one state (or multiple states) and the child is in a different state.  The question becomes whether the institution is an elementary or secondary school in the state or states in which it is located, or whether the child’s education through the Internet courses constitutes home schooling in the state in which the child lives. 

Is e-Tutor an elementary or secondary school in Illinois, the state in which it is located?

Because e-Tutor appeared to be located in Illinois, we obtained an opinion on the issue of whether e-Tutor is an elementary or secondary school in Illinois from OGC Region V (Region V).  Region V noted that e-Tutor is potentially located in two states, Illinois and Colorado.  The web site for e-Tutor and its parent, Knowledge Headquarters, Inc, indicate that they are located in Chicago, Illinois.   However, AdvancEd lists an address in Boulder, Colorado for e-Tutor.  Region V contacted Martha A~, Ph.D., the president of e-Tutor and Knowledge Headquarters, Inc. informally and she stated that e-Tutor is operated from her house in Boulder, Colorado, but also had a small office located in Illinois.  

However, Region V noted that the question of where a purported educational institution is located is problematic when the organization does not provide services at a physical location, but rather does so through the Internet.  When services are provided on-line, the student, teachers, and physical presence of the organization could all be located in different states.   Physical presence of any one element is therefore not a clear indicator of an organization’s location.  Thus Region V also looked at the state of incorporation of the parent company, Knowledge Headquarters, Inc.  The Illinois Secretary of State lists Knowledge Headquarters, Inc. as a business incorporated in Illinois.  The Colorado Secretary of State indicates that Knowledge Headquarters, Inc., is a foreign corporation under Illinois’ jurisdiction.   Region V therefore believed it reasonable to conclude that e-Tutor is located in Illinois.  As additional support for this conclusion, Dr. A~ indicated that the curriculum for e-Tutor is aligned to the goals and objectives established by the Illinois Board of Education.  

Region V next turned to the issue of whether under Illinois law, e-Tutor is an elementary or secondary school.  Region V noted that Illinois law does not directly address whether an institution is an elementary or secondary school. Rather, the issue of whether a student is attending a school in Illinois is addressed under article 26 of the Illinois School Code (105 Ill. Comp. Stat. Ch. 5) which concerns compulsory school attendance.   The code provides that, with certain exceptions, whoever has custody or control of a child between the ages of seven and seventeen must cause the child to attend public school.  105 Ill. Comp. Stat. 5/26-1.   The only exception to this rule applicable to this case is that a child is not required to attend public school if she is attending a “private or parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language”.  Id.  This provision was first interpreted in People v. Levisen, 90 N.E.2d 213 (Ill. 1950), which concerned whether the parent of a home schooled child violated the code.  The court explained that home education could be considered a “private school” if the person with custody or control of the child shows that he or she had in good faith provided an adequate course of instruction in the branches of education taught to the children of corresponding age and grade in public schools.  Id. at 215.  The court stated that the burden is not satisfied if the evidence fails to show a type of instruction and discipline having the required quality and character.  Id.

Region V believed that there is sufficient evidence to conclude that e-Tutor is an educational institution because it offers a course of instruction similar to the branches of education taught to children in Illinois public schools.  e-Tutor’s website alone does not provide enough information to reach this conclusion.  For example, Ms. M~ states that she is taking United States history, but e-Tutor’s website provides no specific information regarding what material that specific course covers.  Region V therefore asked Dr. A~ how e-Tutor’s curriculum compared with an Illinois public school education.  Dr. A~ stated that she based the e-Tutor curriculum on the goals and objectives developed by the Illinois State Board of Education.  Presumably, Dr. A~ was referring to the Illinois Learning Standards.  According to the Illinois State Board of Education, the Illinois Learning Standards are a framework describing what types of skills and knowledge a student should have at each grade level in seven core areas of study.  If e-Tutor’s curriculum is based on the Illinois Learning Standards, it is reasonable to conclude that e-Tutor provides an adequate course of instruction in the branches of education taught to the children of corresponding age and grade in public schools.   The curriculum would therefore satisfy the standard described in Levisen, and it would be reasonable to conclude that e-Tutor is an educational institution under Illinois law.

However, Region V noted that it is not clear that an individual’s “attendance” at e-Tutor would meet the federal requirements for full-time attendance. The regulations at 20 C.F.R. § 404.367(c) specify that a student is in full-time attendance if his or her scheduled attendance is at least 20 hours per week, unless certain exceptions apply. The POMS also states that “[s]cheduled attendance must be at the rate of at least 20 hours per week.” POMS RS 00205.310.  Ms. M~ claims to spend 35 to 40 hours per week on her studies on various subjects.  e-Tutor’s website states that students are expected to study approximately 20 hours per week, but the website provides little detail regarding whether, or how, this time is tracked.  The website explains that “attendance is not enforced” (http://www.e-tutor.com/comparison.php). It states that a student, at a minimum, is required to login five times a week, but does not state how long the student must remain online.  Region V asked Dr. A~ informally for additional information regarding how much time a student must spend on her studies.  Dr. A~ stated that from fourth grade onward, students are expected to complete over 200 “lesson modules” over a ten-month school year.   She explained that each module should take between an hour and an hour-and-a-half to complete and that a student would probably spend 20 to 30 hours online per month.   However, she said that the student would spend additional time working offline under the guidance of an adult, such as a parent.  Dr. A~ stated that a student could be expected to spend an additional 20 to 30 hours working offline each month.   It is unclear how much of that time is to be spent in direct instruction from an adult.  Given that each month contains approximately 4.35 weeks, this would mean that a student could be expected to work between roughly 9 and 14 hours per week.   Region V re-contacted Dr. A~ to verify that these numbers are accurate and she responded that she told parents that their children should spend about four-and-a-half to five hours per day on their studies and that some of this time was guided by the parents.  She stated that each day a child studied was equivalent to a condensed traditional school day.  It appears that Dr. A~ expects that the weekly schedule of a student in the program would be roughly the same as in a traditional school, and that only the school day would be shorter.   It appears that e-Tutor may generally expect students to work five days a week for a total of between 22.5 and 25 hours per week. We recommend that the Agency develop this issue formally.  If the Agency finds that e-Tutor does not require at least 20 hours of scheduled attendance, a finding of full-time attendance may be justified if attending this school is the only reasonable alternative for her, or if her medical condition precludes 20 hours of attendance. See 20 C.F.R. § 404.367(c)(1)-(2).

Does Ms. M~’s education through the Internet courses constitute home schooling in New York, the state in which she lives? 

Alternatively, Ms. M~ may be considered a full-time student under the home schooling standards if her work on e-Tutor meets the applicable requirements under New York law for home schooling.  In New York, parents have the right to educate their children elsewhere than in public schools. Zorach v. Clauson, 303 N.Y. 161, 173 (1951) (citing Pierce v. Society of Sisters, 268 U.S. 510 (1925)), aff’d, 343 U.S. 306 (1952). New York defines a person in a parental relationship as an individual’s “father or mother, by birth or adoption, his step-father or step-mother, his legally appointed guardian, or his custodian.” N.Y. Educ. Law § 3212(1). Children may be home schooled in New York under N.Y. Educ. Law. § 3204(1) which provides that a child “may attend a public school or elsewhere.” New York state law states that “[i]nstruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city district where the minor resides.” N.Y. Educ. Law. § 3204(2). Home schooled children must generally attend instruction for at least as many hours and within the hours specified for public schools. N.Y. Educ. Law § 3210(2). Local public school boards of education, through the superintendent of schools, are responsible for determining whether home school instruction is substantially equivalent in time and quality to that provided by public school. Matter of Adam D., 132 Misc. 2d 797, 801-02 (N.Y. Fam. Ct. 1986).

New York’s home school regulations (N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10) require the parent to:

• •

  Submit a notice of intent to home school to the district superintendent by July 1 (the beginning of the school year) annually, or within 14 days of starting home schooling during the middle of a school year. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(b).

• •

  File an individualized home instruction plan (“IHIP”) with the Superintendent of Schools that complies with certain requirements set forth in Section 100.10(c-d) of the education regulations. An IHIP must contain, among other things, 1) the child’s name, age, and grade level; 2) a list of the syllabi, curriculum materials, textbooks, or a plan of instructions; 3) dates for submission of quarterly reports; and 4) the name of the person(s) giving instruction. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(c-d).

• •

  Provide instruction in certain subjects in certain years, according to requirements set forth in Section 100.10(e) of the education regulations and N.Y. Educ. Law §§ 801, 804, 806, and 808. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(e).

• •

  Ensure that children attend the substantial equivalent of 180 days of instruction each year, totaling 900 hours per year for children in grades one through six and 990 hours per year for children in grades seven through twelve. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(f). Parents must maintain records of attendance and make them available to the school district on request. Id.; see also N.Y. Educ. Law § 3212(d) (stating that a person in parental relationship must be able to furnish proof that the individual is attending required instruction elsewhere).

• •

  File quarterly reports giving the number of hours of instruction during the quarter, a general description of the material covered in each subject, and a grade or narrative evaluation in each subject (the superintendent has no authority to judge the adequacy of these reports). N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(g).

• •

  File an annual assessment including 1) achievement test results, OR 2) alternative evaluation by any of the following: a) a certified teacher, b) a home instruction peer group review panel, or c) or other qualified person. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(h)..

Here, Ms. M~ has not established that the e-Tutor program meets the legal requirements for home schooling under New York law. Among other things, there is no indication that she submitted a notice of intent to home school to the district superintendent or that she filed an IHIP with the Superintendent of Schools.  Further, she has not submitted evidence that she is provided instruction in certain subjects in certain years. Finally, she has not provided copies of attendance records, quarterly reports, or annual assessments, to show she is in compliance with New York Law. Thus, based on the given information, we cannot conclude that Ms. M~’s work on e-Tutor meets the applicable requirements under New York law for home schooling.

CONCLUSION

In sum, it is our opinion that E-Tutor should be considered an educational institution for SSA purposes based on the POMS and SSA regulations. However, it is not clear that Ms. M~ is a full-time student of e-Tutor and we believe that additional development is warranted on this issue. Further, Ms. M~ has not satisfied the applicable requirements for a home school program under New York law.  Thus, based on the information currently in the file, Ms. M~ cannot be considered a full-time secondary school student as defined under section 202(d)(7) of the Social Security Act.

Stephen P. C~

Regional Chief Counsel

By:   

Sheena V. B~

Assistant Regional Counsel