Upper Peninsula Virtual Academy, an online school with a physical address in Calumet, Michigan, qualifies as an educational institution for the purpose of awarding student benefits because it is a public school..

You requested a legal opinion regarding whether Upper Peninsula Virtual Academy (UPVA) qualifies as an educational institution (EI) for the purpose of awarding student benefits.

Yes. For the reasons discussed below, we conclude that UPVA does qualify as an EI for the purpose of awarding student benefits because it is a public school.

C~, a resident of Gladstone, Michigan, seeks child’s insurance benefits based on his reported status as a full-time student of UPVA, an online school with a physical address in Calumet, Michigan.

C~ submitted a signed Form SSA-1372-BK, his statement regarding school attendance, in June 2021. C~ affirmed that he was enrolled in full-time attendance at UPVA and that he was scheduled to attend twenty hours of class per week. He indicated that the school year began in September 2020 and would end in August 2021 and that his expected graduation from high school would take place in June 2022.^[1]

Mr. V~, Director of UPVA, certified C~’s Form SSA-1372-BK. He confirmed that the information provided by C~ was correct and that UPVA’s course of study was at least thirteen weeks in duration. Mr. V~ also noted that the school operates on both yearly and quarterly/semester bases and that “reenrollment” is not required.

UPVA’s website indicates that it is a “Michigan public school” that offers tuition-free online courses to K-12 students in the Upper Peninsula. See UPVA, About UPVA, https://www.upva.net/about_us(last visited June 14, 2022). The website explains that students “can enroll as a part-time or full-time student” with the Gladstone Area Public Schools (Gladstone Schools) or Public Schools of Calumet, Laurium & Keweenaw (CLK Schools) “through the Schools of Choice program.” See id. This program allows a local school board to, among other things, “provide choice enrollment options to students from other school districts.” See Mich. Dep’t of Ed., Schools of Choice, https://www.michigan.gov/documents/mde/choice1_279579_7.pdf.

UPVA’s website states that UPVA is accredited through the Michigan Department of Education and that funding is secured through the Department of Education foundation allowance given for pupils enrolled in a public school in the State of Michigan. See UPVA, Parents/FAQ, https://www.upva.net/parents/faq (last visited June 14, 2022). UPVA provides high school courses in a variety of subjects, including math, language arts, science, social studies, and career and technical education. UPVA, Online High School Courses, https://www.upva.net/high-School-Courses (last visited June 7, 2022).Students must meet the Gladstone or Calumet High School credit requirements in order to receive a high school diploma. See Parents/FAQ, supra. Although UPVA’s website suggests that a student should be “logged in at a minimum of 25 hours per week,” it notes that “[s]ome students will require less time, some will require more time in order to stay on pace.” See id.

The website maintained by CLK Schools indicates that the district “operates” UPVA, “which is a virtual K-12 school that any student in the Upper Peninsula can enroll in.” See CLK Schools, CLK District, https://www.clkschools.org/district.php (last visited June 14, 2022).

In correspondence with the Office of the Regional Chief Counsel, Mr. V~ explained that UPVA is not a distinct entity from Gladstone Schools or CLK Schools, nor is it a “cyber school.” He indicated that students enroll in either of the two school districts and, “if taking classes virtually, are put under the UPVA designation.” UPVA “administers the virtual curriculum and manages” the students for the two districts. Mr. V~ indicated that, upon graduation, a student’s diploma would indicate graduation from either Gladstone Schools or CLK Schools, depending on which district enrolled the student. Finally, Mr. V~ confirmed that any student in the Upper Peninsula can attend UPVA thanks to the Michigan Schools of Choice program, which enables students living in the northern central and western half of the Upper Peninsula to attend CLK Schools and students living in the southern central and eastern half of the Upper Peninsula to attend Gladstone Schools.

The Social Security Act provides for the payment of child’s insurance benefits to certain children of individuals entitled to old-age or disability benefits. 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. A child can obtain student benefits if he is between 18 and 19 years old and a full-time elementary or secondary school student. See 42 U.S.C. § 402(d)(1)(B); see also 20 C.F.R. §§ 404.350(a)(5), 404.367; POMS RS 00205.001.

For the purpose of awarding student benefits, a school must provide elementary or secondary education “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 POMS RS 00205.200(A) (referring to such a school as an “educational institution”). Under the POMS, it is assumed that public high schools in the United States are EIs, absent evidence to the contrary. POMS RS 00205.250(B)(1).

The POMS defines an online school as “one that offers Internet-based courses to students.” POMS RS 00205.295(A). Features of an online school might include virtual classrooms; an interactive curriculum; email and telephone access to teachers; online or in-person completion of tests; required time spent online that the school monitors; and individualized instruction. See id. Under the POMS, an online school can qualify as an EI if the online school is consistent with the law of the state in which it is located. POMS RS 00205.295(B).

Here, the evidence indicates that UPVA is a public school. Under Michigan law, “public school” includes:

[A] public elementary or secondary educational entity or agency that is established under this act or under other law of this state, has as its primary mission the teaching and learning of academic and vocational-technical skills and knowledge, and is operated by a school district, intermediate school district, school of excellence corporation, public school academy corporation, strict discipline academy corporation, urban high school academy corporation, or by the department, the state board, or another public body.

Mich. Comp. Laws Ann. § 380.5(6) (emphasis added). As noted above, UPVA is operated by CLK Schools, which is a public school district. See CLK Schools, supra.^[2]

Information provided on UPVA’s website also indicates that UPVA is a public school. Specifically, UPVA states that it is a “Michigan public school” that offers tuition-free online courses to K-12 students in the Upper Peninsula. See About UPVA, supra. In addition, UPVA states that it is accredited through the Michigan Department of Education and that funding is secured through the Department of Education foundation allowance given for pupils enrolled in a public school in the State of Michigan. See Parents/FAQ, supra. And students must meet the Gladstone or Calumet High School credit requirements in order to receive a high school diploma. See id. UPVA’s director, Mr. V~, confirmed that UPVA students are enrolled in either CLK Schools or Gladstone Schools, two public school districts. See generally Mich. Dep’t of Ed., School District Codes, https://www.michigan.gov/-/media/Project/Websites/taxes/CAMA_School_Dist_Codes.pdf?rev=9aa781066e9545888781c5c0a89a6616 (last visited June 14, 2022).

Based on his address, it appears that C~ lives in the Upper Peninsula within the boundary of Gladstone Schools. Although C~ does not live within the jurisdiction of CLK Schools, which operates UPVA, he is not required to do so. CLK Schools’ website states that UPVA “is a virtual K-12 school that any student in the Upper Peninsula can enroll in.” See CLK Schools, supra (emphasis added). And UPVA’s website indicates that students in the Upper Peninsula can enroll in UPVA with the Gladstone Schools or CLK Schools “through the Schools of Choice program.” See About UPVA, supra; see also Mich. Comp. Laws Ann. §§ 388.1606, 388.1705, 388.1705c (statutes on Schools of Choice program); Schools of Choice, supra. Moreover, C~’s diploma will likely indicate graduation from Gladstone Schools.

In sum, UPVA is a public school, administers a public school curriculum, and is operated by a public school district. Accordingly, it is assumed that UPVA is an EI, and we have been provided no evidence to the contrary. See POMS RS 00205.250(B)(1). We thus conclude that UPVA is an EI.

For the reasons discussed above, we conclude that UPVA qualifies as an EI, for the purpose of determining C~’s entitlement to student benefits.

International Technology Academy (ITA), is a public magnet school serving grades 6-12 as a satellite of the Pontiac School District.  International Technology Academy is an educational institution for the purpose of awarding student benefits

You asked whether International Technology Academy in Pontiac, Michigan qualifies an educational institution for the purpose of awarding student benefits. For the reasons discussed below, we conclude that International Technology Academy is an educational institution.

BACKGROUND

The Social Security Act provides for the payment of Child Insurance Benefits to certain children of individuals who are entitled to old-age or disability benefits. 42 U.S.C. § 402(d)(1). A child can obtain student benefits if he is between 18 and 19 years old and is enrolled as a full-time student at a qualifying educational institution. See POMS RS 00205.001. S~ seeks student benefits due to his reported status as a full-time student at International Technology Academy (ITA) in Pontiac, Michigan. ITA is a satellite of Pontiac High School that serves grades 6-12. International Technology Academy, http://www.pontiac.k12.mi.us/Domain/11 (last visited Dec. 18, 2015). ITA is a magnet school that offers a mix of honors classes, blended learning, project-based learning, and integrated technology. D~, Pontiac’s International Technology Academy nets statewide award, The Oakland Press, Apr. 24, 2015, http://www.theoaklandpress.com/article/OP/20150424/NEWS/150429636.

S~ submitted an SSA-1372-BK form stating that he is currently enrolled in full-time attendance at ITA, which he has been attending since September xx, 2013. S~ is scheduled to attend 35 hours per week, and his expected graduation date is June 2015. F~, secretary at ITA, certified S~’s SSA-1372-BK form. F~ stated that the information provided by S~was correct, and that the school’s course of study was at least 13 weeks in duration. Although F~ indicated that she annotated S~’s expected graduation date on a later page, this page was not submitted.

DISCUSSION

To qualify as an educational institution for the purpose of awarding student benefits, an institution must provide a secondary education “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 POMS RS 00205.200(A). Public elementary schools, junior high schools, and high schools are assumed to be qualifying educational institutions unless there is evidence to the contrary. POMS RS 00205.250(B)(1).

Federal law defines a “magnet school” as a “public elementary school, public secondary school, public elementary education center, or public secondary education center that offers a special curriculum capable of attracting substantial numbers of students of different racial backgrounds.” 20 U.S.C. § 7231a. Because ITA is a public magnet school—specifically, a satellite of Pontiac High School—it is presumed to be a qualifying educational institution. See POMS RS 00205.250(B)(1). We found no evidence to the contrary.

CONCLUSION

ITA, a public magnet school serving grades 6-12 as a satellite of the Pontiac School District, qualifies as an educational institution.

Kathryn Caldwell

Acting Regional Chief Counsel

Region V, Chicago

By: Jean Godfrey

Assistant Regional Counsel

Waterford Cyber Academy, is an online public high school in the Waterford School District that qualifies as an educational institution for the purpose of awarding student benefits.

You asked whether Waterford Cyber Academy in Waterford, Michigan qualifies an educational institution for the purpose of awarding student benefits. For the reasons discussed below, we conclude that Waterford Cyber Academy is an educational institution.

BACKGROUND

The Social Security Act provides for the payment of Child Insurance Benefits to certain children of individuals who are entitled to old-age or disability benefits. 42 U.S.C. § 402(d)(1). A child can obtain student benefits if she is between 18 and 19 years old and is enrolled as a full-time student at a qualifying educational institution. See POMS RS 00205.001. C~ seeks student benefits due to her reported status as a full-time student at Waterford Cyber Academy, an online public high school with a physical address in Waterford, Michigan.^[3] Information from the Waterford Cyber Academy website confirms that it is an online, public high school that is part of the Waterford School District. See Waterford Cyber Academy, http://www.waterford.k12.mi.us/pages/335/waterford-cyber-academy (last visited Dec. 15, 2015). The diploma C~ would receive upon graduation would list Waterford School District as the institution. Waterford Cyber Academy FAQ, Cyber Academy FAQ.

C~ submitted an SSA-1372-BK form stating that she is currently enrolled in full-time attendance at Waterford Cyber Academy, which she attended from January 2014 to June 2015 and September 2015 to the present. C~ is scheduled to attend 30 hours per week, and her anticipated graduation date is June 2016. C3, administrative assistant at Waterford Cyber Academy, certified C~’s SSA-1372-BK form. C3~ stated that the information provided by C~ was correct, and that the school’s course of study was at least 13 weeks in duration. Although C3~ indicated that she annotated C~’s expected graduation date on a later page, this page was not submitted.

DISCUSSION

To qualify as an educational institution for the purpose of awarding student benefits, an institution must provide a secondary education “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 POMS RS 00205.200(A). An online school that offers Internet-based courses to students is governed by the same analysis; it must be “consistent with the law of the state in which it is located.” POMS RS 00205.295. Public high schools are assumed to be qualifying educational institutions unless there is evidence to the contrary. POMS RS 00205.250(B)(1).

Michigan law allows for the creation of a cyber school that is a “school of excellence.” Mich. Comp. Laws § 380.553a(1). A “school of excellence,” including a cyber school, is a public school under the state constitution and is subject to supervision by the state board of education. Mich. Comp. Laws § 380.551(1). Although Michigan law requires school districts to provide at least 1,098 hours and 175 days of pupil instruction, Mich. Comp. Laws § 388.1701(3)(a), this requirement does not apply to cyber schools. Mich. Comp. Laws § 388.1701(11); see also Mich. Comp. Laws § 380.553a(4) (“[A] cyber school is not required to comply with any rule that would require a pupil’s physical presence or attendance in a classroom.”). If a cyber school of excellence that has been operational for at least four years is among the lowest achieving 5% of all public schools in the state, “the superintendent of public instruction shall notify the school of excellence’s authorizing body” who, in turn, “shall revoke the school of excellence’s contract, effective at the end of the current school year.” Mich. Comp. Laws § 380.561(5).

C3~, administrative assistant at Waterford Cyber Academy, confirmed in a telephone conversation on December 15, 2015, that Waterford Cyber Academy opened in September 2010, it is a program of Waterford Kettering High School, and it is a cyber school of excellence.^[4] Although Waterford Cyber Academy does not appear on Michigan’s Top-to-Bottom School List, Waterford Kettering High School ranked in the lowest 18% of public schools in the state for the 2013-14 school year, the most recent year available. 2013-14 Top-to-Bottom School List, http://michigan.gov/documents/mde/2013-14_TTB_Rankings_465183_7.pdf. Because Waterford Cyber Academy is a program of Waterford Kettering High School, a school that ranked above the lowest 5% of public schools in the state, the cyber school’s contract is not subject to revocation pursuant to Mich. Comp. Laws § 380.561(5).

Michigan law allows the establishment of an alternative educational program, a vocational-technical skills center, or “any other type of specialized or alternative school or program” by public school districts. Mich. Comp. Laws § 380.1280a. The school district is required to ensure that the specialized program meets the requirements of §§ 1204a, 1277a, 1278, and 1280 of the Michigan Revised School Code, Mich. Comp. Law, Chp. 380. Assuming that Waterford Cyber Academy constitutes a specialized program or school run by Waterford School District, it meets these requirements.

Section 1204a requires the school district to prepare an annual education report, Mich. Comp. Laws § 380.1204a, and Section 1277a requires the report to address gender equality issues and disaggregate information by gender, Mich. Comp. Laws § 380.1277a. Waterford Cyber Academy issued its most recent report on August 13, 2014, breaking down assessment data by gender in addition to the aggregate, satisfying both requirements. Waterford Cyber Academy Annual Education Report Cover Letter, http://www.waterford.k12.mi.us/NorthstarMedia/download/97159?token=OCaRojCyVwc%3d (last visited Dec. 18, 2015); Waterford Cyber Academy Annual Education Report, http://www.waterford.k12.mi.us/NorthstarMedia/download/97123?token=OCaRojCyVwc%3d) (last visited Dec. 18, 2015).

Section 1278 requires the school district to establish a core curriculum following state board recommendations. Mich. Comp. Laws § 380.1278. Waterford Cyber Academy provides a curriculum aligned to the state’s model, satisfying this requirement. See Waterford Cyber Academy Annual Education Report Cover Letter, http://www.waterford.k12.mi.us/NorthstarMedia/download/97159?token=OCaRojCyVwc%3d (last visited Dec. 18, 2015). Finally, Section 1280 requires compliance with educational standards set by the superintendent of public instruction. Mich. Comp. Laws § 380.1280. Michigan has established a system known as “Education Yes!” to determine school accreditation status. Michigan’s School Accreditation System: Education Yes!, http://www.michigan.gov/mde/0,4615,7-140-22709_22877---,00.html (last visited Dec. 18, 2015). For the most recent school year, 2013-14, Waterford Cyber Academy received a final grade of “B” under the Education YES! system. 2013-14 Education Yes! Letter Grades and Results, http://www.michigan.gov/documents/mde/EdYES_Accreditation_Grades_2014_477151_7.xls (Waterford Cyber Academy is listed on row 237). Schools that have earned a letter grade in the Education YES! system are considered accredited by the state of Michigan. Michigan’s School Accreditation System: Education Yes!, http://www.michigan.gov/mde/0,4615,7-140-22709_22877---,00.html (last visited Dec. 18, 2015). Thus, Waterford Cyber Academy satisfies Section 1280.

Because Waterford Cyber Academy meets the requirements of §§ 1204a, 1277a, 1278, and 1280 of the Michigan Revised School Code, Mich. Comp. Law, Chp. 380, it is a valid specialized program of Waterford Kettering High School, a public high school. As a public school, Waterford Cyber Academy is presumed to be an educational institution. POMS RS 00205.250(B)(1).

CONCLUSION

Waterford Cyber Academy, an online public high school that is program of the Waterford School District, qualifies as an educational institution.

Kathryn Caldwell

Acting Regional Chief Counsel

Region V, Chicago

By: Jean Godfrey

Assistant Regional Counsel

Southeast Michigan Cyber Academy (Southeast), located in Redford, Michigan, is a public school that provides an online alternative education program. Southeast operates through the public school district of Redford Union Schools and complies with the Michigan school code and relevant laws related to alternative education programs. Southeast is, therefore, an educational institution for SSA purposes.  

QUESTION PRESENTED

You asked whether Southwest Cyber Academy should be considered an educational institution (EI) for the purpose of awarding child insurance benefits (CIB) to J~. Our research, however, indicates that there is likely no school called the Southwest Cyber Academy. There is a Southeast Michigan Cyber Academy (Southeast), which is likely the school attended by J~. For this reason, we discuss Southeast below, and conclude that it is an EI.

BACKGROUND

Claimant is requesting student benefits based on his status as a full time student at Southeast from 2014-2015. J~ graduated from Southeast in June, 2015. Southeast is a member of the Redford Union School District No. 1. Southeast is a Michigan public school and the physical address is in Redford, Michigan. There is no tuition and Southeast provides certified teachers and educational materials to students. Southeast provides an alternative education program and follows the Michigan Merit Curriculum (MMC). Upon completion of the Southeast program students will receive a Michigan high school diploma.

 

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 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 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. 42 U.S.C. § 402(d)(7)(C)(i). The POMS explains this regulation at RS 00205.200(A). POMS RS 00205.250(B)(1) states that it should be assumed public high schools in the United States are educational institutions, unless there is evidence to the contrary.

POMS RS 00205.295 provides policy about determining whether online schools are educational institutions for SSA purposes. The POMS defines an online school as “one that offers Internet-based courses to students.” POMS RS 00205.295 (A). The POMS recognizes that online schools vary considerably in the methods used to provide education to students. According to the POMS, “[s]ome features of online schools may include virtual classrooms; an interactive curriculum; email, telephone, and fax access to teachers; either online or in-person completion of tests; required time spent online that the school monitors; and individualized instruction.” POMS RS 00205.295 (A).

Southeast Qualifies as an Educational Institution

 

Michigan recognizes alternative education programs as part of the public school system. Michigan approved alternative education programs in 2006 pursuant to the Michigan School Code stating that the board of a school district shall ensure that each pupil is offered the curriculum necessary for the pupil to meet the Michigan Merit Curriculum requirements. The board may provide this curriculum by using alternative instructional delivery methods such as alternative course work, humanities course sequences, career and technical education, industrial technology courses, or vocational education, or by a combination of these. School districts and public school academies that operate career and technical education programs are encouraged to integrate the credit requirements into those programs. Mich. Comp. Laws Ann. 380.1278(b)(3)(e).

 

Michigan law states that each school district shall provide at least 1,098 hours and, beginning in 2010-2011, the required minimum number of days of pupil instruction. Beginning in 2014-2015, the required minimum number of days of pupil instruction is 175. Mich. Comp. Laws Ann. § 388.1701(3)(a)(i) amended by Mich. Legis. Serv. P.A. 85 (H.B. 4115)(effective October 1, 2015). However, schools not created pursuant to the revised school code section 553a and defined in section 551 as cyber schools of excellence may waive the hour and day requirement and operate under a seat time waiver. “[T]he superintendent may waive for a district the minimum number of hours and days of pupil instruction requirement of subsection (3) for a department-approved alternative education program. Mich. Comp. Laws Ann. 388.1701 (9).

A seat time waiver removes the state requirements for days, hours, and physical attendance for traditional public schools and allows schools to operate 100% online. Pupil Accounting Manual 5-0-B. Traditionally, alternative education programs are reserved for students who have been expelled, are pregnant, or disabled. Pupil Accounting Manual 5-0-B states that a local school district, seeking to offer pupils access to online learning options and seeking to offer the opportunity to continue working on a high school diploma or grade progression without physically attending at the school facility may choose to do so under a seat time waiver. Applications for seat time waivers are individually submitted by public school districts and considered by the State Superintendent each year. Mich. Comp. Laws Ann. 388.1701 (g)(i)-(iii). The seat time waiver does not remove the teacher certification requirement. Mich. Comp. Laws Ann. 388.1701 (10)(e).

We believe that Southeast is an EI for its compliance with the Michigan school code and relevant laws relating to alternative education programs. Southeast operates through the public school district of Redford Union Schools and has successfully been granted a seat time waiver for the state days and hours requirement. The teachers at Southeast are certified with the Michigan Educator Certification Database and the course load meets the requirements set forth by the Michigan Merit Curriculum standards.

CONCLUSION

We conclude that Southeast Michigan Cyber Academy is an educational institution. If you find the statements in this case credible, and the claimant appears to have satisfied the full-time attendance requirement when he graduated on June 2015; we conclude that you could find that claimant was a full-time secondary school student at a EI as defined under section 202(d) of the Social Security Act.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: _____________________

OGC Legal Intern

The Michigan Virtual Charter Academy (MVCA) is a public school located in Grand Rapids, Michigan. SSA assumes that, absent evidence to the contrary, public high schools in the United States are educational institutions (EI), and MVCA qualifies as an EI for the 2015-2016 school year. Because its status may change, reassess its EI status for a future school year. 

QUESTIOIN PRESENTED

You asked whether Michigan Virtual Charter Academy (MVCA), an online (cyber) school, may be considered an educational institution (EI) for purposes of awarding child insurance benefits (CIB). For the reasons discussed below, we conclude that the MVCA qualifies as an EI.

BACKGROUND

Claimant is requesting student benefits based on their status as a full time student at MVCA. MVCA is authorized by Grand Valley State University, a public university in the State of Michigan, and is a member of the National Association of Charter School Authorizers. MVCA is a Michigan public school and the physical address is in Grand Rapids, Michigan. There is no tuition and MVCA provides certified teachers and educational materials to students. Upon completion of the MVCA program students will receive a Michigan high school diploma.

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 child’s insurance benefits (CIB). One of the requirements for CIB eligibility for a non-disabled 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 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. 42 U.S.C. § 402(d)(7)(C)(i). The POMS explains this regulation at RS 00205.200(A). POMS RS 00205.250(B)(1) states that it should be assumed public high schools in the United States are educational institutions, unless there is evidence to the contrary.

POMS RS 00205.295 provides policy about determining whether online schools are educational institutions for SSA purposes. The POMS defines an online school as “one that offers Internet-based courses to students.” POMS RS 00205.295 (A). The POMS recognizes that online schools vary considerably in the methods used to provide education to students. According to the POMS, “[s]ome features of online schools may include virtual classrooms; an interactive curriculum; email, telephone, and fax access to teachers; either online or in-person completion of tests; required time spent online that the school monitors; and individualized instruction.” POMS RS 00205.295 (A).

MVCA Qualifies as an Educational Institution

Michigan recognizes public online schools as educational institutions. Michigan approved the establishment of public “cyber schools” effective 2010 pursuant to its “schools of excellence” legislation. 2009 Mich. Pub. Acts 205; see also Mich. Comp. Laws Ann. § 380.553a (“Cyber schools”). A “cyber school” is defined as “a school of excellence . . . that has been issued a contract to be organized and operated as a cyber school under section 552(2) [of the school code] and that provides full-time instruction to pupils through online learning or otherwise on a computer or other technology, which instruction and learning may be remote from a school facility.” Mich. Comp. Laws Ann. § 380.551(2)(e). The Michigan school code provides that “[a] cyber school shall provide full-time instruction to pupils through online learning or otherwise on a computer or other technology, and this instruction and learning may occur remote from a school facility.” Mich. Comp. Laws Ann. § 380.553a(1). A cyber school is not required to comply with any rule requiring a pupil’s physical presence or attendance in a classroom. Mich. Comp. Laws Ann. § 380.553a(4).

The Michigan school code permits the governing board of a state public university to act as an authorizing body to issue a contract to organize a “school of excellence” that is a cyber school. Mich. Comp. Laws Ann. §§ 380.552(6)(d). The university shall only authorize the contract for a cyber school that is: (a) be available for enrollment to all pupils in the state who were previously enrolled in a public school; (b) offer to some configuration of grades kindergarten to 12; and (c) demonstrate experience in serving urban and at-risk student populations through an educational model involving a significant cyber component. Mich. Comp. Laws Ann. § 380.552(2)(a)–(c).

A contract for a cyber school must include a requirement that a teacher who holds appropriate certification according to state board rule will be responsible for the following for each course: (i) improving learning by planned instruction; (ii) diagnosing the pupil’s learning needs; (iii) assessing learning, assigning grades, and determining advancement; and (iv) reporting outcomes to administrators and parents or legal guardians. Mich. Comp. Laws Ann. § 380.553a(2)(a)(i)–(iv). A contract for a cyber school must also include a requirement that the cyber school will make educational services available to pupils for a minimum of at least 1,098 hours during a school year and will ensure that each pupil participates in the educational program for at least 1,098 hours during a school year. Mich. Comp. Laws Ann. § 380.553a(2)(b). The Michigan school code mandates various reporting requirements for cyber schools. See, e.g., Mich. Comp. Laws Ann. §§ 380.553a(5), 380.552(2)(e).

The Michigan school code provides that a “school of excellence,” including a cyber school, is a public school under the state constitution and is subject to the leadership and general supervision of the state board over all public education. Mich. Comp. Laws Ann. § 380.551(1). “If the superintendent of public instruction determines that a school of excellence site that has been operating for at least 4 years is among the lowest achieving 5% of all public schools in this state, and is not currently undergoing reconstitution under this section, the superintendent of public instruction shall notify the school of excellence's authorizing body. If the school of excellence is a cyber school, and the authorizing body receives notice from the superintendent of public instruction under this subsection, the authorizing body shall revoke the school of excellence's contract, effective at the end of the current school year. Mich. Comp. Laws Ann. § 380.561.

We believe that MVCA qualifies as an educational institution for the purposes of awarding CIB. MVCA is a public school in the State of Michigan authorized through the public university of Grand Valley State. MVCA provides teachers with the appropriate certification in the Michigan Educator Certification database, and online courses to approximately 4,000 students. Further, MVCA appears in several places on the Michigan Department of Education (MDE) website listed as a school of excellence cyber school.

For deciding whether MVCA is an EI in the future, it is, however, important to note that as stated above a cyber school found to be in the bottom 5% of the state after four years of operation is subject to closure. MVCA finished its third year of operation with the conclusion of the 2014-2015 academic year and was found to be in the bottom 5% of Michigan schools. http://michigan.gov/documents/mde/2013-14_Priority_Schools_465225_7.pdf. If after the 2015-2016 school year MVCA remains in the bottom 5% it may no longer qualify as an EI. MVCA has presented a redesign plan to the MDE in February 2015 to address their status in the bottom 5% of Michigan schools. We thus recommend that, if the issue of MVCA’s EI status comes up for a future academic year, the issue of EI status be revisited.

CONCLUSION

We conclude that Michigan Virtual Charter Academy is an educational institution. If you find the statements in this case credible, and the claimant appears to satisfy the full-time attendance requirement; we conclude that you could find that claimant is a full-time secondary school student at a EI as defined under section 202(d) of the Social Security Act.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

_________________________

OGC Legal Intern

The Tri County Virtual Learning Center, located in Howard City, Michigan, is an online public school that is part of the Tri County Area Schools district. We assume public schools in the United States, absent evidence to the contrary, are educational institutions. Because the Tri County Virtual Learning Center is a public school, it is an educational institution for SSA purposes.

QUESTION PRESENTED

You asked whether Tri County Virtual Learning Center, based in Howard City, Michigan, may be considered an educational institution for the purpose of awarding student benefits.

For the reasons discussed below, we conclude that Tri County Virtual Learning Center is an educational institution.

BACKGROUND

The claimant, L~ is seeking child’s insurance benefits (CIB) on the record of M~, due to her reported status as a full-time student at Tri County Virtual Learning Center. The agency uses Form SSA-1372-BK as the primary means for determining whether a child is a full-time student at a qualifying educational institution. POMS RS 00205.735. The claimant submitted Form SSA-1372-BK indicating that she attended Tri County Virtual Learning Center (a part of West Michigan Virtual Schools) from September 2013 to June 2014 and from September 2014 to June 2015 for 20 hours per week. She also indicated that she would likely graduate in 2016. C~ certified Form SSA-1372-BK as a teacher on February 13, 2015.

 

 

C~ indicated that the information the claimant had provided on the form was correct, and that the school’s course of study was at least 13 weeks in duration. C~ stated that he annotated the student’s graduation date on a later page, but this page was not submitted.

DISCUSSION

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 at a qualifying educational institution. See Section 202(d)(1)(B) of the Act; 20 C.F.R. §404.350(a)(5). If a student attains age 19 in a month in which she is in full-time attendance and has not completed the requirements for, or has not received, a diploma or equivalent certificate from a secondary school, the student is deemed not to have attained age 19. POMS RS 00205.325(B). The date the student’s entitlement ends depends on whether the school operates on a yearly basis or on a quarterly or semester basis requiring reenrollment. For schools that operate on a yearly basis, student benefits end the earlier of (1) The first day of the third month following the month in which the student attains age 19; or, (2) The first day of the month after the month the student completes the school year in which is in full-time attendance. POMS RS 00205.325(C). Under the POMS, the maximum entitlement period for a student whose school operates on a yearly basis ends at age 19 and 2 months. POMS RS 00205.325(C).

In order to qualify as an educational institution for the purposes of awarding student benefits, the school must provide an education “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 POMS RS 00205.200(A). Public schools in the United States are assumed to be educational institutions, absent evidence to the contrary, while non-public schools are not assumed to be educational institutions. POMS RS 00205.250(B). POMS RS 00205.295(A) discusses the regulatory requirements for online schools. An online school “offers Internet-based courses to students” and may vary considerably in educational methods. POMS RS 00205.295(A). An online school “may include virtual classrooms; an interactive curriculum; email, telephone, and fax access to teachers; either online or in-person completion of tests; required time spent online that the school monitors; and individualized instruction. POMS RS 00205.295(A) In order for an online school student to be eligible for student benefits, the online school must be consistent with the law of the state in which the online school is located. POMS RS 00205.295.

The claimant must also show that she is a full-time elementary or secondary school student in order to qualify for student benefits. 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. Section 202(d)(7)(a) of the Act; see also 20 C.F.R. §404.367. To satisfy the “full-time attendance” requirement, an online school student must meet state and federal standards. POMS RS 00205.295(B); POMS RS 00205.300. State standards are satisfied if the school considers the student to be full-time based on the school’s standards and practices for day students. POMS RS 00205.300(B). For online schools, a student is full-time if “[t]he online school is consistent with the law of the state in which the online school is located.” POMS RS 00205.295. To meet the federal standards, the claimant must be enrolled in a non-correspondence course of at least 13 weeks’ duration and be scheduled for attendance at the rate of at least 20 hours per week (with certain exceptions). 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300(C).

 

The Tri County Virtual Learning Center is located in Howard City, Michigan, according to the school’s website contact information. http://successvirtuallearningcenters.com/schools/tri-county-virtual-learning-center/. The address is consistent with the phone area code and fax area code. The same website confirms that Tri County Virtual Learning Center offers online instruction. It is thus necessary to examine the school’s status under Michigan law, Social Security regulations and other evidence to determine whether Tri County Virtual Learning Center is an educational institution.

Although the Tri County Virtual Learning Center is an online school, it also is a public school. Social Security regulations do not state that the categories of public and online schools are mutually exclusive. POMS RS 00205.295 for online schools does not refer to public online schools, but it also does not preclude such a concept. There is no formal definition of public schools in the regulations. POMS RS 00205.250(B)(1) provides examples of public schools, including elementary, middle, junior high and high schools, but is not an exhaustive list of schools that are deemed public. However, public schools typically share common elements, including (1) official recognition of a school as public, (2) state funding and (3) government oversight of the school by education officials.^[5]

After applying these factors, we believe that the Tri County Virtual Learning Center is a public school for purposes of determining student benefits eligibility. Michigan state law establishes multiple means for public schools to offer online courses or blended learning, which mixes in-person and Internet-based education. Mich. Comp. Laws Ann. §§ 388.1618(13), 388.1621f, 388.1622f(2)(d). The Tri County Virtual Learning Center is formally recognized as a part of the Tri County Area Schools district on the district’s website. See http://www.tricountyschools.com/ourschools/Edgerton/tri-county-virtual; District Improvement Plan: Tri County Area Schools, at 7, http://www.tricountyschools.com/downloads/

school_improvement_plans/district_improvement_plan_20150327_102127_5.pdf. A phone call with C~, the school district’s finance officer, confirmed that the school receives state funding and is also under the oversight of Berrien Springs school district in Michigan. C~ described the school as a public school. Because the Tri County Virtual Learning Center is a public school, it is assumed to be an educational institution. POMS RS 00205.250(B).

CONCLUSION

Based on the foregoing, we conclude that the Tri County Virtual Learning Center is an educational institution. Accordingly, we find that L~ meets this threshold requirement for eligibility for Child Insurance Benefits.

Kathryn Caldwell

Acting Regional Chief Counsel

Region V, Chicago

By: __________________

Ryan Shafer

Attorney Detailee

At the time the regional attorney reviewed MUST University to determine if it is an educational institution for SSA purposes, SSA was unable to determine the state in which the online school is located. To be an EI for SSA purposes, a school must provide elementary or secondary education under the law of the state or other jurisdiction in which it is located. SSA was unable to determine MUST University’s exact whereabouts and is, therefore, unable to determine which state law applies. For this reason, MUST University is not an EI for SSA purposes.

You have asked whether MUST High School can be considered an educational institution for an 18-year-old Michigan resident (Claimant) for purposes of receipt of student benefits.   Particularly, you have asked whether MUST University is an educational institution pursuant to Michigan State law. Because we were unable to determine in what state the internet high school is located, we could not determine whether MUST High school is an educational institution under Michigan State law or the law of any other state. It appears unlikely that the school would be an educational institution under any state law.  In any event, we do not need to reach the issue in this case because the school failed to verify the Claimant’s status as a full-time student in a manner acceptable to SSA.   

BACKGROUND

The Claimant, C~ applied for students benefits. With his application, the Claimant submitted an SSA-1372-BK form stating that he had been attending MUST High School since November XX, 2009, and that he was not sure when his school year would end.  However, in the margin of the form, he indicated an end date of May xx, 2011. He stated that he was scheduled to attend MUST High school 40 hours a week.  The SSA 1372-BK form was incomplete because it was not signed by a school official who would certify as to the Claimant’s attendance at the school. You have indicated that the school refuses to sign any documentation.

In lieu of submitting a signed verification under the SSA 1372-BK, Claimant submitted an online printout from MUST High School which purports to constitute the school’s official validation of Claimant’s enrollment. The printout invites the reader to further verify the Claimant’s enrollment by logging onto an e-mail address or by calling the telephone number assigned to the school.  The Claimant also submitted a student identification card indicating that it was issued on February xx, 2001, and was valid until March xx, 2011. 

DISCUSSION

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. 

Claimant Has Not Verified Full-Time Attendance

A student is in FTA if he is attending a secondary level school (an educational institution (EI)) as defined in RS 00205.200 and is meeting both the state and federal standards for FTA.  SSA considers the state requirements met if the school considers the student to be full-time based on the school’s standards and practices for day students. To meet federal standards, a student must be:  scheduled for attendance at the rate of at least 20 hours per week; enrolled in a course that is not a correspondence course; and enrolled in a course of study that is of at least 13 weeks duration. POMS RS 00205.300.

Claimant indicated in this application that he attends an online high school for forty hours per week, and, last year, he attended this school only eight hours per week. However, as you have indicated, MUST High School refused to sign the Certification by School Official by the SSA 1372-BK which would verify this attendance.  According to POMS RS 00205.295 which governs Online Schools, the fact that the school was unable or unwilling to certify the Claimant’s attendance is a sufficient reason to deny the claim. See POMS RS 00205.295(F).  

We have considered whether Claimant’s submission of an online printout from MUST High School which purports to constitute the school’s official validation of his enrollment and the Claimant’s school identification card are sufficient to verify FTA.  Although POMS RS 00205.350 does allow for a school to verify FTA in ways other than signing the Form SSA-1372, the information provided by Claimant does not appear to meet these alternative requirements.  For example, the POMS allows for a statement from the school on its own form or letterhead if it gives the same information as the SSA 1372 or other types of evidence if worked out by agreement with a particular school and the Assistant Regional Commissioner, Management Operations and Support (ARC-MOS). POMS RS 00205.350(B). However, the evidence submitted by the Claimant does not satisfy these requirements.  Specifically, the document gives no information about the number of hours the Claimant is scheduled to attend the school.   

In any event, as discussed below, even if the Claimant could verify his full-time attendance at MUST High School, we have determined that MUST is not likely to be considered an educational institution. 

We Could Not Verify That MUST High School Is An Educational Institution

You have asked whether MUST High School is an educational institution under Michigan 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.  The main problem in evaluating whether MUST High School is an Educational Institution (EI) is that its exact whereabouts could not be verified. Therefore, we were unable to determine which state law would apply. 

It is possible that the school may be located in California.  MUST High School does not, on its website, list its location or contact information.  The undersigned called the telephone number assigned to MUST and spoke informally with a person who identified himself as T~, Admissions Counselor. He stated that the school was “global” but that one of its main offices was in California. According to the Better Business Bureau (BBB), MUST University, also known as MUST High School, has provided its contact information as his.  However, the BBB has noted that mail sent to that address was returned as undeliverable. In processing fourteen complaints against MUST, the BBB has indicated that the company could not be located and has assigned a rating of “F” to the school.  See BBB, Reliability Report, found at:  http://www.bbb.org/greater-san-francisco/business-reviews/schools-academic-special-education/must-university-in-san-francisco-ca-354232 (last visited 4/6/11). We have attached a print-out of this information.

 If that is the case, MUST is not a school which is organized and functioning in a way which is consistent with the laws of the State of California. California recognizes online public schools as educational institutions, either as alternative schools of choice or charter schools.  See Survey of Online Schooling Requirements For the States and Protectorates in Region IX (Feb. 8, 2010). However, MUST High School does not purport to be a public school, and the Claimant is not attending MUST as a California public school since he lives in Michigan. 

We considered whether MUST High School is a private school recognized by the State of California. In order to be a private school recognized by the State of California, the school must be in English, have proper courses and instructors, keep track of attendance for each student, and have filed an affidavit or statement required by California State law, and then would be included on a list maintained by the Superintendent of Public Instruction. Cal. Educ. Code 33190. However, The California 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 MUST High School in a state-wide search. See California Department of Education, California School Directory, http://www.cde.ca.gov/re/sd/ .

CONCLUSION

In sum, the Claimant cannot be considered a full-time student of MUST High School because the school has failed to verify his status in a manner acceptable to SSA.  In any event, it is highly unlikely that MUST High School would be considered an educational institution. 

Donna L. C~

Regional Chief Counsel, Region V

By_________

Anne M~

Assistant Regional Counsel

The Westwood Cyber High School (WCHS) in Inkster, Michigan, is part of the Westwood Community School district, a public school district in Michigan. The WCHS offers secondary courses in accordance with Michigan law and is, therefore, an educational institution (EI) for SSA purposes. The student must also meet Federal standards for full-time attendance and all other requirements for payment of benefits.  If a student alleges full-time attendance at an online school other than the WCHS, the adjudicator should follow the instructions in RS 00205.295 and GN 01010.815 to obtain a legal precedent opinion about its EI status.

INTRODUCTION

You asked whether B~, who attends Westwood Cyber High School in Inkster, Michigan, can be considered a full-time secondary school student.  We believe Westwood Cyber High School, which is a public online school in Michigan, is an educational institution. If you find the statements in this case credible, then B~ appears to satisfy the full-time attendance requirement.  We therefore conclude that you could find that B~ is a full-time secondary school student as defined under section 202(d)(7) of the Social Security Act.

BACKGROUND

B~ is requesting payment of student’s benefits based on his attendance at Westwood Cyber High School, which has a physical address in Inkster, Michigan. B~, who turned 18 years old in 20XX, has been attending Westwood Cyber High School for the past two years. 

Both the materials you have provided and the school district website show that Westwood Cyber High School is part of Westwood Community School District, a public school district in Michigan. See www.westwood.k112.mi.us.  The school district funds the online school through various funding sources, the largest portion being that of the district’s general fund dollars. The school district also received a Models of Demonstrated Proficiency Grant from the Michigan Department of Education.

Westwood Cyber High School is a year round educational program available 24 hours a day, seven days a week.  The program offers constructivist, project-based, on-line learning experiences, which are individualized to meet student needs. Mentors, experts, and project team leaders monitor and support student progress.

The school uses a program called first class, which allows it to track how long the student is online from any computer. Students can use a computer from the school, home, library, or any other location. The courses available to students include any classes offered at a regular high school.  According to a project manager at Westwood Cyber High School, the required attendance for students is 28 hours a week. The students have three labs available to them.  They are required to attend a lab at least two hours a week, but can also attend more frequently. There are a maximum of 15 students in each lab. Students have opportunities to interact with other students in the labs.  There are teachers available for one-on-one learning in a variety of subjects. Students can also send instant messages to teachers when they are on-line to receive help.

B~ completed a statement regarding school attendance (Form SSA-1372-BK), which states that he is scheduled to attend school 28 hours a week.  A project manager at Westwood Cyber High School also certified B~’s statement regarding school attendance and indicated that the school’s course of study is at least 13 weeks in duration.  In a separate statement (Form SSA-795), dated October XX, 2010, B~ stated that he was in the classroom five to six hours per day and logged-in on the weekends for three to six hours per day. The school provided a monthly attendance report for the claimant, which reflects the amount of time B~ was online each day in September and October 2010.   

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 child’s insurance benefits (CIB).  One of the requirements for CIB eligibility for a non-disabled 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).

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. 42 U.S.C. § 402(d)(7)(A).  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. 42 U.S.C. § 402(d)(7)(C)(i).

The POMS explains at RS 00205.200(A) that an educational institution is a school that provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located. POMS RS 00205.250(B)(1) states that it should be assumed public high schools in the United States are educational institutions, unless there is evidence to the contrary.

POMS RS 00205.295 provides policy about determining whether online schools are educational institutions for SSA purposes. The POMS defines an online school as “one that offers Internet-based courses to students.” POMS RS 00205.295(A). The POMS recognizes that online schools vary considerably in the methods used to provide education to students. According to the POMS, “[s]ome features of online schools may include virtual classrooms; an interactive curriculum; email, telephone, and fax access to teachers; either online or in-person completion of tests; required time spent online that the school monitors; and individualized instruction.” POMS RS 00205.295(A).  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(C) and the online school is consistent with the law of the state in which the online school is located.  POMS RS 00205.295(B).

Michigan Law on Educational Institutions

Michigan recognizes public online schools as educational institutions. Michigan approved the establishment of public “cyber schools” effective 2010 pursuant to its “schools of excellence” legislation. 2009 Mich. Pub. Acts 205; see also Mich. Comp. Laws Ann. § 380.553a (“Cyber schools”). A “cyber school” is defined as “a school of excellence . . .  that has been issued a contract to be organized and operated as a cyber school under section 552(2) [of the school code] and that provides full-time instruction to pupils through online learning or otherwise on a computer or other technology, which instruction and learning may be remote from a school facility.” Mich. Comp. Laws Ann. § 380.551(2)(e). The Michigan school code provides that “[a] cyber school shall provide full-time instruction to pupils through online learning or otherwise on a computer or other technology, and this instruction and learning may occur remote from a school facility.” Mich. Comp. Laws Ann. § 380.553a(1). A cyber school is not required to comply with any rule requiring a pupil’s physical presence or attendance in a classroom. Mich. Comp. Laws Ann. § 380.553a(4).

The Michigan school code permits the board of a school district that operates grades kindergarten through 12 to issue a total of two contracts to establish a “school of excellence” that is a cyber school. Mich. Comp. Laws Ann. §§ 380.551(2)(a)(i), 380.380.552(2), 380, 380.553a(1).  In order to establish a cyber school, the school district must: (a) be available for enrollment to all pupils in the state who were previously enrolled in a public school; (b) offer all of grades kindergarten to 12; and (c) demonstrate experience in serving urban and at-risk student populations through an educational model involving a significant cyber component. Mich. Comp. Laws Ann. § 380.552(2)(a)–(c). The school district must have an initial enrollment in a cyber school that does not exceed 400 pupils, although in the second and subsequent years of operation, a cyber school may expand enrollment by adding one pupil for each pupil who becomes enrolled in the school of excellence who is identified as a dropout in the Michigan student-data system. Mich. Comp. Laws Ann. § 380.552(2)(d)–(e).  Maximum enrollment at a school of excellence that is a cyber school must not exceed 1,000 pupils. Mich. Comp. Laws Ann. § 380.552(2)(e).

A contract for a cyber school must include a requirement that a teacher who holds appropriate certification according to state board rule will be responsible for the following for each course: (i) improving learning by planned instruction; (ii) diagnosing the pupil’s learning needs; (iii) assessing learning, assigning grades, and determining advancement; and (iv) reporting outcomes to administrators and parents or legal guardians. Mich. Comp. Laws Ann. § 380.553a(2)(a)(i)–(iv). A contract for a cyber school must also include a requirement that the cyber school will make educational services available to pupils for a minimum of at least 1,098 hours during a school year and will ensure that each pupil participates in the educational program for at least 1,098 hours during a school year. Mich. Comp. Laws Ann. § 380.553a(2)(b). The Michigan school code mandates various reporting requirements for cyber schools. See, e.g., Mich. Comp. Laws Ann. §§ 380.553a(5), 380.552(2)(e).

The Michigan school code provides that a “school of excellence,” including a cyber school, is a public school under the state constitution and is subject to the leadership and general supervision of the state board over all public education. Mich. Comp. Laws Ann. § 380.551(1).

We believe Westwood Cyber High School qualifies as an educational institution. Westwood Cyber High School is part of a public school district in Michigan and receives state funding.  Accordingly, we can reasonably infer that Westwood Cyber High School is a public school and was created in accordance with Michigan law.  The POMS provide that, absent evidence to the contrary, it should be assumed that public high schools in the United States are educational institutions. POMS RS 00205.250(B)(1). Thus, we conclude that Westwood Cyber High School is an educational institution.          

Full Time Attendance

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. 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 carry 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). 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. See also POMS RS 00205.300 (“What is Full-Time Attendance”).

If you find the statements credible in this case, then B~ appears to meet the Federal standards for full time attendance. The materials you have provided show that B~ is enrolled in a course of study that is of at least 13 weeks’ duration. In his certification, a project manager at Westwood Cyber High School indicated that the school’s course of study is at least 13 weeks in duration.  We believe that, if you find the statements in this case credible, you could also find that B~ is scheduled for attendance at the cyber school at the rate of at least 20 hours per week. B~ completed a statement regarding school attendance (Form SSA-1372-BK), in which he indicated that he is scheduled to attend school 28 hours a week. The school appears to have certified B~’s statement regarding school attendance. In his statement regarding school attendance, B~ wrote that currently he is scheduled to attend school “28” hours per week in line 1(d). However, next to line 1(d), the following notations were added: “2-3 times/wk” and “3 hrs logged in everyday.” It is unclear whether B~ wrote the additional notations or whether the school project manager wrote the additional notation as a correction when he certified the statement. It is also unclear whether this additional notation is a correction to the “28” hours in line 1(d) or has some other meaning. We note that you may want to re-contact B~ and/or the school to seek clarification on the additional notations. 

Additionally, according to the school, the “required” attendance for students is 28 hours a week. The school’s statement appears to conflict with other record evidence. The school provided an attendance report for B~, which appears to show the total minutes B~ was online each day in September and October 2010. Based on the report, it does not appear that B~ actually attended class online for 28 hours any week during the two-month period. The report indicates that, in September 2010, B~ was online only 17.83 hours the first full week, 0 hours the second week, 10.05 hours the third week, and 9.97 hours the fourth week. In October 2010, B~ was online only 8.25 hours the first full week, 20.53 hours the second week, 23.68 hours the third week, and 18.83 hours the fourth week. Thus, the school project manager’s statement that students are “required” to attend school 28 hours a week is not supported by B~’s attendance report. 

Similarly, B~’s statements appear to conflict with other evidence in the record. In a statement (Form SSA-795), dated October 29, 2010, B~ stated that he was in the classroom five to six hours per day and logged-in on the weekends for three to six hours per day. This would mean that he attended class a minimum of 31 hours a week.  However, his attendance reports for September and October 2010 do not seem to show this level of online attendance for that time period. One possible explanation for the inconsistency may be that the attendance report may not reflect the time B~ spent in labs. According to the school, students are required to attend labs a minimum of two hours a week, but may attend more often if they wish.  In any event, there appear to be conflicts in the evidence, which you may wish to resolve because they may bear on the credibility of the school’s and B~’s statements. However, even if you determine that B~ did not actually attend class for the amount of time he claims, you could still find that he was “scheduled” to attend class for at least 20 hours a week, as required by the regulations.  Thus, if you find the statements credible in this case, then we believe that you could find that B~ has satisfied the Federal requirements for full time attendance.  

CONCLUSION

We conclude that Westwood Cyber High School, which is a public online school in Michigan, is an educational institution. If you find the statements in this case credible, then B~ appears to satisfy the full-time attendance requirement.  We therefore conclude that you could find that B~ is a full-time secondary school student as defined under section 202(d)(7) of the Social Security Act.        

Donna L. C~

Regional Chief Counsel, Region V

 By: ________________

 Joo H. K~

 Assistant Regional Counsel