This memorandum is in response to your request for our opinion whether a student’s
attendance at five hours per week meets the Federal requirement for full-time attendance
(FTA) and whether receiving instruction off campus qualifies as Independent Study. Based
on the evidence that you provided and our research, it is our opinion that Darrell
D. F~’s attendance at five hours per week meets the Federal requirement for full-time
attendance and that his instruction off campus qualifies as Independent Study.
Darrell D. F~, the claimant, was awarded child’s insurance benefits (CIB) benefits
on the earnings record of his father, Darrell L. F~, beginning July 2009. At that
time, Darrell was in prison for the conviction of a crime and was not entitled to
receive benefits. He was released from prison in September 2010 and his first monthly
benefit was issued in November 2010.
In November 2010, Darrell enrolled in the Williamsport School District. He is currently
a student at the Williamsport Area High School. Darrell receives instruction from
school teachers at the James V. Brown Library in Williamsport because he does not
qualify for placement at the school based on a violation of school policy.
The Social Security Act provides for the payment of CIB to certain unmarried children
of individuals who are deceased or who are entitled to old age or disability insurance
benefits. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2010). A child over the age of
18 may continue to receive CIB if the child is a full-time elementary or secondary
school student. 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5). In
order to be considered a “fulltime” elementary or secondary school student,” the claimant
must satisfy all of the conditions described in the federal regulation at 20 C.F.R.
To qualify as a full-time student, the regulations require that the student meet the
following conditions: (a) attend a school which provides elementary or secondary
education as determined under the law of the state in which it is located (including
instruction at home or in an independent study); (b) be in full-time attendance in
a day or evening noncorrespondence course of at least 13 weeks duration; and (c) attend
school at the rate of at least 20 hours per week. 20 C.F.R. § 404.367(a)-(c); POMS
RS 00205.001, POMS RS 00205.300. Participation in (1) a home school program, or (2) an independent study program
also meets the requirement that the student attend a school which provides elementary
or secondary education, as provided in paragraph (a). 20 C.F.R. § 404.367(a)(1)-(2);
POMS RS 00205.285.
You have asked whether Darrell’s off-campus instruction qualifies as “independent
study” under the regulations. 20 C.F.R. § 404.367(a)(2). Independent study is a method
of alternative secondary education used in some states. POMS RS 00205.285A. Independent study programs are run by local education agencies such as high schools
or school districts, in accordance with specific state law requirements, and the credits
earned count towards high school graduation. Id. Students in independent study situations may qualify for student benefits if the
student is (1) in full-time attendance based on Federal standards; and (2) in a school
that provides elementary or secondary education as determined under state law. POMS
It is our opinion that Darrell’s off-campus instruction constitutes independent study. As
discussed more fully below, Darrell’s instruction meets the requirements for full-time
attendance based on the Federal standards. In addition, he is enrolled in a school
that provides secondary education as determined under state law. The agency’s policy
procedures regarding documentation of independent study require completion of Form
SSA-1372, Student’s Statement Regarding School Attendance, by the school district
and certification. POMS RS 00205.285D. Darrell has submitted a completed Form SSA-1372 dated February 23, 2011, which has
been certified by Elizabeth B~, a special education consultant and school official. This
documentation supports a finding that Darrell’s off-campus instruction meets the requirements
of independent study under state law.
You have also asked whether Darrell’s attendance of five hours per week in an independent
study program meets the Federal requirement for full-time attendance. A student is
in full-time attendance if he meets both state and Federal standards for full-time
attendance. POMS RS 00205.300A. We believe that Darrell meets both the state and Federal
standards for full-time attendance.
The agency considers the state requirements to be met if the school considers the
student to be full time based on the school’s standards and practices for day students.
POMS RS 00205.300B.
Here, the school district considers Darrell to be a full-time student. In a letter
to the agency, Marisha C~, Director of Special Education at the Williamsport Area
School District (WASD), confirmed that the school district considered Darrell to be
a full-time student at Williamsport Area High School. Ms. C~ explained that as part
of his educational program, Darrell received five hours per week of intensive individualized
instruction. Although she did not identify the school’s standards and practices for
full-time attendance for day students, she verified that based on his instruction,
the school district considered Darrell to be a full-time student. Therefore, because
Darrell meets the school’s standards and practices for full-time attendance, the agency
would consider the state requirements to be met.
Darrell also meets the Federal standards for full-time attendance. The Federal standards
require that a student be (1) scheduled for attendance at a rate of at least 20 hours
per week; (2) enrolled in a course that is not a correspondence course; and (3) enrolled
in a course of study that is of at least 13 weeks’ duration. POMS RS
00205.300. However, if attendance is less than 20 hours per week, a finding of full-time attendance
may be justified if the following conditions are met: (1) the school’s standards do
not require at least 20 hours of weekly scheduled attendance for the student to be
considered full-time; and (2) attending that school is the student’s only reasonable
alternative. POMS RS 00205.310.
We believe that Darrell’s five hours of instruction per week meet the Federal requirement
of fulltime attendance based on the exception for circumstances where attendance is
less than 20 hours per week. First, regarding the school’s standards, it appears from
the information that you provided that the school district’s standards do not require
at least 20 hours of weekly scheduled attendance for a child to be considered full
time. David C. W~, Director of Student Services for WASC, informed the agency that
the school district’s standards for full-time attendance follow those of the Pennsylvania
Department of Education (PDE). PDE considers one hour of intensive instruction in
the home to be equivalent to one day of regular schooling. In a report of contact,
you have indicated that the district office confirmed with a representative of PDE
that based on their unwritten policy, five hours of weekly instruction is considered
Although PDE does not provide written documentation for its policy that one hour
of intensive instruction in the home is equivalent to one day of regular schooling,
its reporting procedures for instruction in the home are consistent with this policy.
PDE instructions permit an IEP team to agree on fewer hours of instruction as long
as a student still receives a free appropriate public education. http://www.education.state.pa.us (follow “Codes and Regulations” hyperlink; then follow “Basic Education Circulars”
hyperlink; then follow “Federal Codes” hyperlink; then follow “Instruction Conducted
in the Home” hyperlink).
Based on this information and Mr. W~’s statement, it appears that the school’s standards
do not require at least 20 hours of weekly instruction for a student to be considered
full time. Moreover, the school’s approval of Darrell’s Individualized Education Program
(IEP) consisting of five hours of weekly instruction provides further support for
our conclusion that Darrell’s instruction meets the requirements of full-time attendance.
In Pennsylvania, the high school graduation requirements for special education students
include completion of a special education program developed by an Individualized Education
Program team under the Individuals with Disabilities Education Act. 22 Pa. Code § 4.24(e)
Second, Darrell also meets the additional requirement that attendance at the school
is the student’s only reasonable alternative. POMS RS 00205.310. According to the Notice of Recommended Educational Placement provided by the school
district, Darrell was refused placement at Susquehanna House (where he was enrolled
following his release from prison) due to a violation of school policy. Based on
the school district’s decision to provide his instruction in accordance with an IEP,
the agency may reasonably conclude that attending an in home instruction program was
Darrell’s only reasonable alternative.
Finally, Darrell meets the second and third requirements of the Federal standards
for full-time attendance. Regarding the second requirement, Darrell is enrolled in
a high school course of study that is not a correspondence course. Rather, school
district teachers provide instruction based on his IEP and the high school curriculum.
Regarding the third requirement, Darrell is enrolled in a course of study that is
of at least 13 weeks’ duration. His IEP establishes that his program is expected to
endure for one year, from August 18, 2010, to August 17, 2011.
For the reasons stated above, it is our opinion that Darrell D. F~’s instruction off
campus qualifies as Independent Study and his attendance at five hours per week meets
the Federal requirement for full-time attendance.
Regional Chief Counsel
Anne v. S~
Assistant Regional Counsel