TN 23 (05-14)

PR 07905.055 Wisconsin

A. PR 14-091 Wisconsin – Samantha – General Education Development Option #2

DATE: May 6, 2014

1. SYLLABUS

The General Education Development Option #2 (GEDO #2) program that is offered at North High School in Sheboygan, Wisconsin is an approved secondary-level school program pursuant to Wisconsin law.

2. OPINION

QUESTION PRESENTED

You asked whether the General Education Development Option #2 (GEDO #2) program, offered at North High School in Sheboygan, Wisconsin, is an approved secondary-level educational program for purposes of receipt of Student’s Benefits.

For the reasons discussed below, we conclude that the GEDO #2 program is an approved secondary-level educational program pursuant to Wisconsin law, thereby qualifying the claimant for Student’s Benefits.

Based on the information provided, the claimant also meets the requirement for full-time attendance.1

BACKGROUND

The claimant, Samantha, is seeking child insurance benefits (CIB) due to her status as a full-time student in the GEDO #2 program at North High School (North). With her application, the claimant submitted Form SSA-1372-BK dated October 9, 2013. In the form, the claimant indicated that she is scheduled to attend a “GED” program on a full-time basis (20 hours per week) during the period of September 3, 2013 – June 11, 2014. The claimant listed an anticipated high school graduation date of June 2014.

The SSA 1372-BK form was certified by North Associate Principal Pamela on October 14, 2013. Pamela 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 field office completed a Report of Contact indicating that an employee contacted Pamela in November 2013. At that time, Pamela confirmed the claimant’s participation in GEDO #2, which she indicated was scheduled for 20 hours per week, through the end of the school year. Pamela also indicated that the GEDO #2 classes are held at the local high school (North).

Thereafter, Pamela provided information from the Wisconsin Department of Public Instruction regarding the GEDO #2 program.

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 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 educational institution (EI), absent evidence to the contrary; a non-public school cannot be assumed to be an EI. See POMS RS 00205.250B.

I contacted the Wisconsin Department of Public Instruction (WDPI) for clarification of the GEDO #2 program. According to Beth, a WDPI consultant, the name GEDO #2 is a misnomer, as it is not an actual General Education Development (GED) preparation program. Instead, GEDO #2 is part of a State-authorized alternative education program designed to allow “credit-deficient” high school students age 17 and older to complete high school and earn a traditional high school equivalency diploma (HSED).2 Beth stated although the GED test is a part of the program, GEDO #2 is not a GED test preparation program, as the ultimate goal is to obtain a high school equivalency diploma (HSED).

This comports with information found on the WDPI website. According to WDPI, the GEDO #2 program allows authorized public school districts to use the GED test battery to measure proficiency in lieu of high school credit for students enrolled in an alternative education program. Seehttp://alternativeed.dpi.wi.gov/alted_gedo2 (last visited April 9, 2014). Specifically, the website indicates that GEDO #2 utilizes the GED battery of tests only to prove competency in core areas of the curriculum (mathematics, science, social studies, and language arts). However, students must also prove competency in other areas that comprise the Wisconsin HSED, including health, civic literacy, employability skills, and career awareness. Notably, a GED certificate is not awarded in conjunction with the GEDO #2 program.3 Instead, successful completion of the program results in a traditional HSED.

Based on the information gathered and received from WDPI, as well as publicly available information, we conclude that the GEDO #2 is not a GED preparation program, such that it would be considered under POMS RS 00205.340. Instead, it is an alternative high school education program that should be examined under POMS RS 00205.250. Because North is a public school, we assume it is an EI under POMS RS 00205.250B, as we have no evidence to the contrary. Additionally, the GEDO #2 program at North is administered by the public school district, and is authorized by WDPI as an alternative program of high school study. http://alternativeed.dpi.wi.gov/files/alternativeed/pdf/ged_02_list.pdf last visited April 9, 2014).

Furthermore, Ms. D~ confirmed that students participating in GEDO #2 are considered as having a full-time enrollment status in their public school districts. As such, the GEDO #2 program at North High School4

B. PR 00-020 Zion Christian School - Wisconsin - Educational Institution

DATE: May 31, 1991

1. SYLLABUS

Zion Christian School (ZCS) in Wisconsin does not provide education in accordance with Wisconsin law. Thus, it is not an educational institution for SSA purposes.

2. OPINION

This is with reference to your request for an opinion as to whether Zion Christian School (ZCS) qualifies under Section 202(d)(7) of the Social Security Act as a school that provides elementary or secondary education. At issue is the payment of benefits to Laurie , a beneficiary who is enrolled at ZCS, but who studies at home due to a medical condition.

In our opinion, it would not be legally supportable for the Social Security Administration (SSA) to conclude that ZCS provides an education as determined under Wisconsin law because ZCS does not meet all of the requirements under Wisconsin's compulsory school attendance statute. As a result, ZCS cannot be recognized as an educational institution (EI) for SSA purposes. The basis for our conclusion follows.

DISCUSSION

Section 202(d)(7)(C)(i) of the Act states 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.

20 C.F.R. S 404.367(a) restates the statutory definition.

We do not believe that Wisconsin would recognize ZCS as a home-based educational program or as a private school because ZCS does not provide education in accordance with Wisconsin law. Our office has previously advised that a home-based educational program may qualify as an EI under Wisconsin law for SSA purposes. See, e.g., OGC-V (M~) to RC-SSA-V (P~), "Full-Time Secondary Student Under Section 202(d)(7) - Debra,," (SSN: ~), 9/29/88. However, in that case, the beneficiary was in a "home-based private educational program," as defined at Wis. Stat. Ann. § 115.001(3g). The Wisconsin statute defines home-based private educational program as follows:

"Home-based private educational program" means a program of educational instruction provided to a child by the child's parent or guardian or by a person designated by the parent or guardian. An instructional program provided to more than one family unit does not constitute a home-based private educational program. (Emphasis added).

Wis. Stat. Ann. § 115.001(3g). In the present case, the beneficiary is not enrolled in a home-based private educational program because ZCS is not a school designed to provide education to one family unit. In fact, ZCS is a "private" school that has eleven students enrolled. Further, there is no indication in the materials provided to us that the beneficiary is tutored regularly by a parent or a teacher. Unlike a home-schooling situation, it appears here that ZCS does not offer the beneficiary educational instruction, although it does provide her with educational materials and it counts her in its enrollment. Home-schooling cannot relieve a student of his or her obligation to attend classes. Rather, home-schooling merely enables the student to receive the required instruction in the home. Vis. Stat. Ann. §§ 118.15(4); 118.165(1). Thus, Zion Christian School is not providing the beneficiary with a "home-based private educational program."

However, ZCS may still be considered an EI if it qualifies as a private school, as defined at Wis. Stat. Ann. § 115.001(3r) and Wis. Stat. Ann. § 118.165(1). Wis. Stat. Ann. § 115.001(3r) defines private school as follows:

"Private school" means an institution with a private educational program that meets all of the criteria under s. 118.165(1) or is determined to be a private school by the state superintendent under s. 118.167.

With respect to the latter requirement, we are aware of no information which indicates that the state superintendent has determined that ZCS is a private school under Wis. Stat. Ann. § 118.167. Further, contrary to what is required in the above statute, ZCS does not "meet[] all of the criteria under s. 118.165(1)", and therefore, ZCS cannot qualify as a private school. 5 Wis. Stat. Ann. § 118.165(1), provides:

(1) An institution is a private school if its educational program meets all of the following criteria: (a) The primary purpose of the program is to provide private or religious-based education. (b) The program is privately controlled. (c) The program provides at least 875 hours of instruction each school year. (d) The program provides a sequentially progressive curriculum of fundamental instruction in reading, language arts, mathematics, social studies, science and health. This subsection does not require the program to include in its curriculum any concept, topic or practice in conflict with the program's religious doctrines or to exclude from its curriculum any concept, topic or practice consistent with the program's religious doctrines. (e) The program is not operated or instituted for the purpose of avoiding or circumventing the compulsory school attendance requirement under s. 118.15(l)(a). (f) The pupils in the institution's educational program, in the ordinary course of events, return annually to the homes of their parents or guardians for not less than 2 months of summer vacation, or the institution is licensed as a child welfare agency under s. 48.60(1). (Emphasis added).

We have not been provided with any information regarding whether ZCS meets all of the above criteria. However, ZCS appears to be in violation of Wis. Stat. Ann. § 118.165(l)(e) because the statute requires all private schools to operate in compliance with the compulsory school attendance requirement at Wis. Stat. Ann. § 118.15(l)(a). Wis. Stat. Ann. § 118.15(l)(a) provides:

(l)(a) Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age. (Emphasis added).

Thus, the Wisconsin compulsory school attendance statute requires that a child enrolled in a private school must attend the school when it is in session. 6

Further, as stated at Wis. Stat. Ann. § 118.165(1)(e), the program cannot be operated for the purpose of avoiding or circumventing the compulsory school attendance requirement. It does not appear to be sufficient that the beneficiary studies at home 24 hours per week. 7 School attendance in Wisconsin is compulsory by statute for all children. Panitch v. State of Wisconsin 444 F.Supp. 320, 322 (E.D. Wis. 1977). Contrary to the requirements of the compulsory attendance statute, the information you provided states that the main reason Laurie left the public school system and enrolled at ZCS was because she was unable to attend public school regularly due to her illness. Consequently, and in direct contradiction with the requirements of Wis. Stat. Ann. § 118.165(1), a result of the beneficiary choosing to attend ZCS is the circumvention of the compulsory school attendance requirement. 8 Further, ZCS permitted the beneficiary to enroll without requiring her attendance in class. Therefore, ZCS cannot be considered a private school, as defined at Wis. Stat. Ann. § 118.165(1).

The Wisconsin compulsory education law has been reviewed in Wisconsin courts. As stated above, the court has found that school attendance is compulsory by statute for all children. Panitch v. State of Wisconsin, supra, 444 F.Supp. at 322. Likewise, the Attorney General for the State of Wisconsin recently determined that, unless the correct statutory procedures were followed, the parents of a child with exceptional educational needs could not remove their child from his public school placement one day a week to attend a private education service. Op. Atty. Gen. 18-90 (May 30, 1990)(attached). The Attorney General stated that "[i]f the child is not attending the specified school during the full period and hours, the compulsory education law is violated." Likewise, under Wisconsin law Laurie's parent or guardian is required to seek approval from the school board if Laurie chooses to pursue an unconventional form of education.

In our opinion, under the principles outlined in this opinion, the foregoing facts establish that ZCS does not provide education recognized under Wisconsin's compulsory attendance law. Therefore, we believe that Wisconsin would not recognize ZCS as a home-based educational program or as a private school since the State may prosecute Laurie's parent or guardian for failure to comply with the compulsory attendance requirement. Thus, there is no adequate legal basis for SSA to conclude that ZCS is an EI for SSA purposes.

[I]n full-time attendance in a day or evening noncorrespondence course and [] carrying a subject load which is considered full-time for day students under the institution's standards and practices, with scheduled attendance at the rate of at least 20 hours per week and a course of study which is at least 13 weeks in duration.


Footnotes:

[1]

You did not ask whether the claimant meets 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 claimant’s Form SSA-1372-BK, Associate Principal Pamela certified that the claimant is scheduled to attend the GEDO #2 program at North for 20 hours per week, with a course of study of at least 13 weeks. Wisconsin Department of Public Institution consultant Beth Lewis confirmed that students participating in the GEDO #2 program are enrolled for a minimum of 20 hours per week, which is considered full-time enrollment in their public school district. With this schedule, the claimant is in full-time attendance under both Federal and State standards.

[2]

GEDO #2 general program requirements can be found at http://alternativeed.dpi.wi.gov/files/alternativeed/pdf/gedo2faq.pdf

[3]

GED Testing Service has granted the State of Wisconsin permission to use the GED test battery as a means of demonstrating proficiency in certain areas, provided that the program leads to a traditional high school diploma. http://alternativeed.dpi.wi.gov/files/alternativeed/pdf/gedo2faq.pdf, Page 2, Question 4.

[4]

While the inquiry presented to this office was directed towards the GEDO #2 program specifically offered by North High School, our findings would apply to any GEDO #2 program officially authorized by the Wisconsin Department of Public Instruction. See GEDO #2 Approved Programs (available at http://alternativeed.dpi.wi.gov/files/alternativeed/pdf/ged_02_list.pdf (last visited April 9, 2014)).

[5]

The Social Security Act and the regulations refer to "education...as determined under the law of the State...in which it is located." Section 202(d)(7)(C)(i) of the Act; 20 C.F.R. § 404.367(a). There is no reference in the Act or the regulations to a determination actually made by the State itself. Where similar language is used elsewhere in the Act, SSA routinely asks for guidance from the Chief Regional Counsel or refers to already-established precedents. The relevant Program Operations Manual System (POMS) section, RS 00205.250 B.2, requires submittal of the case to the Chief Regional Counsel for a determination under State law only after SSA has been unable to ascertain from the State if the school provides an approved education program. Therefore, under POMS SSA should consider initially seeking a legal opinion from an appropriate State official. If, however, a State opinion cannot be obtained, it is appropriate to seek a determination under State law from the Chief Regional Counsel.

[6]

Likewise, 20 C.F.R. § 404.367(b) states that in order to be eligible for child's benefits one must be:

[7]

Similarly, the POMS also requires homebound students to be tutored. POMS RS 00205.350B.l0. SSA does not permit a homebound student to receive benefits unless he or she is 1) forced to cease actual physical presence in the classroom due to illness, injury or other circumstances beyond the student's control; and 2) Considered by the school as being in FTA [full-time attendance] based on individual assigned study and home visits by a teacher; and 3) expected to spend at least 20 hours per week on a combination of tutoring by a visiting teacher and individual assigned study; and; 4) expected to complete the course at the same time as the students in actual physical attendance. POMS RS 00205.350B.10.

[8]

Parents may request, in writing, that the school board approve program or curriculum modifications for their children, such as "[H]omebound study, including nonsectarian correspondence courses or other courses of study approved by the school board or nonsectarian tutoring provided by the school in which the child is enrolled." Wis. Stat. Ann. § 118.15(d)(5). Thus, in the present case, Laurie's parent or guardian could have submitted a written request to the school board, asking it to approve a homebound study program for Laurie. However, there is no indication in the record that the Laurie’s had requested such approval, nor is it clear that the school board would have approved Laurie's present educational program, had such a request been made.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1507905055
PR 07905.055 - Wisconsin - 05/30/2014
Batch run: 05/30/2014
Rev:05/30/2014