PR 07805.042 Pennsylvania
A. PR 11-121 Whether Attendance at Five Hours Per Week Can be Considered Full-Time Attendance – Darrell L. F~ (NH) SSN C2, Darrell D. F~
DATE: June 30, 2011
The James V. Brown Library (JVBL) in Williamsport, Pennsylvania, provides off-campus instruction that qualifies as independent study for the student in this case. The student, enrolled in the Williamsport School District, is a student at the Williamsport Area High School, which provides secondary education under Pennsylvania law. A student must meet the full-time attendance (FTA) standards of both state and Federal law. Although Federal law requires FTA of 20 hours of scheduled school attendance per week, this student meets an exception to the requirement. Specifically, he meets an exception that allows a finding of FTA in cases in which the school does not require 20 hours per week of scheduled school attendance and attending that school is the student’s only reasonable alternative. The JVBL’s standards do not require 20 hours of weekly instruction to consider a student full-time, and the school’s reporting procedures are consistent with its policy that one hour of intensive instruction equates to one day of regular schooling; the student meets the second part of the exception because he violated policy at another school, which refused him placement. The off-campus instruction this student receives through the James V. Brown Library qualifies as independent study and his weekly attendance of five hours meets the Federal requirement for FTA.
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. § 404.367.
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 RS 00205.285B.
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 fulltime attendance.
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) (1999).
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