You requested general guidance to assist you in determining a claimant's entitlement
to student benefits based on his or her enrollment in independent study in California.
A. Social Security's Entitlement Criteria for Child's Insurance Benefits as a Student
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. Social Security Act § 202(d)(1)(B), 42 U.S.C.
A full time elementary or secondary school student is "an individual who is in full-time
attendance as a student at an elementary or secondary school, as determined by the
Commissioner of Social Security (in accordance with regulations prescribed by the
Commissioner) in light of the standards and practices of the schools involved." Social
Security Act § 202(d)(7)(A); 42 U.S.C. § 402(d)(7)(A).
An educational institution is an elementary or secondary school "which provides elementary
or secondary education, respectively, as determined under the law of the State or
other jurisdiction in which it is located." Social Security Act § 202(d)(7)(C)(i);
42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a) (2007); POMS RS
A student is in full-time attendance if he/she is attending an elementary or secondary
level school (an educational institution as determined by State law or other jurisdiction)
and is meeting both State and Federal standards for full-time attendance. POMS RS 00205.300(A). State requirements are met if the school considers the student to be full-time
based on the school's standards and practices for day students. 20 C.F.R. § 404.367)(b);
POMS RS 00205.300(B). To meet federal standards for full-time attendance, the student must be:
Scheduled for attendance at the rate of at least 20 hours per week, unless an exception
applies. If attendance is less than 20 hours per week, a finding of full-time attendance
may be justified if the school's standards do not require at least 20 hours of weekly
scheduled attendance for the student to be considered full-time; and attending that school is the student's only reasonable alternative or the student's medical condition precludes 20 hours of attendance.
Enrolled in a course that is not a correspondence course; and
Enrolled in a course of study that is of least 13 weeks' duration. The duration of
the course refers to the entire course of study (e.g., a 4-year high school program
or GED course) and not the individual course offering or other segment of the entire
course (i.e., semester or summer session). A break in full-time attendance of more
than 4 months ends the duration of a course requirement.
20 C.F.R. § 404.367(b), (c)(1)-(2); POMS RS 00205.300(C); RS 00205.310(A); RS 00205.315(A).
A person may continue to be eligible for student benefits if he/she has attained age
19 in a month he/she is in full-time attendance and meets the conditions in RS 00205.325 for benefits beyond that month. POMS RS 00205.001(A).
B. Independent Study under Social Security Regulations and Policies
In 1996, the Commissioner of Social Security revised the "rule on full-time elementary
or secondary school students to include students enrolled in . . . independent study
programs authorized by State or local law." 61 Fed. Reg. 38,361-01 (July 24, 1996)
(codified at 20 C.F.R. 404.367(a)). The rationale for the change was to recognize
that school districts had developed various programs designed to meet student needs:
Also, some States or other jurisdictions authorize the governing board of a school
district or a county office of education to offer independent study to meet the educational
needs of pupils in accordance with certain requirements. An independent study course
could (but need not) include instruction in the student's home or elsewhere outside
the classroom. The study program is conducted in accordance with written policies
and rules. It is coordinated, evaluated, and under the supervision of an employee
of the school district or county office of education who has been certified to act
as a home teacher. Independent study programs which involve instruction and supervision
by a teacher employed by the school (or local school district) include written agreements
for each independent study student specifying, among other things, the duration of
the agreement and a statement of the number of course credits to be earned by the
pupil upon completion. The effect of the written agreement is to extend the educational
setting beyond the traditional classroom. . . .
We therefore are revising § 404.367 to include students enrolled in . . . independent
study programs authorized by State (or other jurisdiction) laws. The student must
be carrying a course load considered to be full-time under the standards and practices
used for day students who are in full-time attendance at traditional educational institutions.
. . . An independent study program organized in accordance with the State (or other
jurisdiction) requirements must be coordinated, evaluated and supervised by an employee
of the school district or county office of education and must comply with the policies
of the school district or county office of education. To be entitled to child's insurance
benefits as a student, an individual enrolled in . . . [independent study] . . . must
meet both the Federal and the State (or other jurisdiction) full time-time attendance
61 Fed. Reg. at 38,361-62.
The applicable regulation reads, in pertinent part:
You may be eligible for child's benefits if you are a full-time elementary or secondary
student. * * * (a) You attend a school which provides elementary or secondary education
as determined under the law of the State or other jurisdiction in which it is located.
Participation in the following programs also meets the requirements of this paragraph:
(2) You are in an independent study elementary or secondary education program in accordance
with the law of the State or other jurisdiction in which you reside which is administered
by the local school or school district/jurisdiction.
(b) You are in full-time attendance in a day or evening, non-correspondence course
of at least 13 weeks and you are carrying a subject load which is considered full-time
for day students under the institution's standards and practices.
(c) To be considered in full-time attendance, your scheduled attendance must be at
the rate of at least 20 hours per week unless one of exceptions in paragraphs in (c)(1)
and (2) of this section applies. If you are in an independent study program as described
in paragraph (a)(2) of this section, your number of hours spent in school attendance
are determined by combining the number of hours of attendance at a school facility
with the agreed upon number of hours spent in independent study.
20 C.F.R. § 404.367; accord POMS RS 00205.300. The POMS was changed to address independent study. Specifically, students in independent
study situations can qualify for benefits if the following criteria are met:
The student is in full-time attendance based on Federal standards; and
The student is in a school that provides elementary or secondary education as determined
under State law.
POMS RS 00205.285(B).
C. California Law Governing Independent Study
A "school district or county office of education may offer independent study to meet
the educational needs of pupils" within certain guidelines. Cal. Educ. Code § 51745(a);
see also California Department of Education's website at www.cde.ca.gov (describing and providing program information and statutory and regulatory links
for independent study). Independent study is an optional program that must be agreed
to by both the pupil and the school district. Cal. Educ. Code § 46300.7 (requiring
written permission from parent or guardian prior to commencement of independent study;
this document must include the dates of participation and methods of study and evaluation);
5 Cal. Code Regs. §§ 11700(d), 11702 (stressing the optional nature of independent
study and providing additional requirements for the mandatory independent study agreement).
An agreement may not be for more than one semester or one half school year for a school
on a year-round calendar. Cal. Educ. Code § 51747(c)(5).
Independent study is an alternative instructional strategy, not an alternative curriculum.
Students work independently, according to the written agreement and under the general
supervision of a credentialed teacher. While independent study students follow the
district-adopted curriculum and meet the district graduation requirements, independent
study offers flexibility to meet the individual student's needs, interests and styles
of learning. Independent study is offered at the school district's option and is not
available in all districts. It may be used on a short-term or long-term basis and
on a full-time basis or in conjunction with courses taken in a classroom setting.
School districts can operate independent study as a program within a school, or as
stand-alone charter school or alternative school of choice. California law provides
that the education students receive using independent study should be at least equal
in quality and quantity to that offered in the classroom. See "Independent Study", http://www.cde.ca.gov/sp/eo/is/.
Independent study may include, but is not limited to, special assignments within the
regular curriculum, study of materials outside of the regular curriculum, and individualized
alternative education designed to teach the skills of the core curriculum. Cal. Educ.
Code § 51745(a).
School districts and county offices of education offering independent study are required
to provide appropriate existing services and resources to enable pupils to complete
their independent study successfully and must ensure the same access to all existing
services and resources in the school in which the pupil is enrolled as is available
to all other pupils in the school. Cal. Educ. Code § 51746; 5 Cal. Code Regs. § 11701.5.
An individual with "exceptional needs" may not participate in independent study unless
it is part of his or her individualized education program (IEP). Cal. Educ. Code §
51745(c); see also Cal. Educ. Code § 56026 (defining "exceptional needs" in part as a child with a disability
pursuant to 20 U.S.C. § 1401). In addition, no temporarily disabled student may receive
individual instruction through independent study. Cal. Educ. Code § 51745(d). However,
if a temporarily disabled student's parent or guardian and the school district(s)
agree, the student may receive instruction through independent study instead of receiving
the "home and hospital" instruction provided pursuant to Cal. Educ. Code § 48206.3.
See Independent Study Operations Manual, at 1-5 (4th Ed. 2000), available at http://www.cde.ca.gov/sp/eo/is/.
Under the applicable attendance apportionment credit rules for school districts,2 a school district will receive credit for independent study students "only to the
extent of the time value of pupil or student work products, as personally judged in
each instance by a certificated teacher." Cal. Educ. Code § 51747.5(b). The implementing
California Code of Regulations provides that a local school district or county must
maintain records of independent study programs that include a file of each pupil's
work containing an evaluation by a supervising teacher and an attendance credit register
maintained with "time values of pupil . . . work products" that are reviewed by a
certificated and supervising teacher. 5 Cal. Code Regs. § 11703(b)(3) & (4).
California's Independent Study Operations Manual, a guide for administrators and teachers, explains that attendance records are based
on a student's work within the terms and conditions of his or her written agreement
and non on traditional "seat-time." Independent Study Operations Manual, at 1-2. In independent study, the student's performance, measured by the terms in
the agreement, is converted by the supervising teacher into school days. The computed
school days are reported as if the student were physically in attendance. Id. at 1-2. For example, when a student is learning or otherwise actively engaged in
anything related to his or her attainment of the objectives of the signed written
agreement - such as taking a test, discussing or correcting an assignment, viewing
pertinent videotapes, listening to audiotapes, or working on a computer - the work
may be counted for attendance purposes on the basis of the accomplishment, not of
the student's physical presence per se. Independent Study Operations Manual at 8-2. The independent study work does not have to be performed at any particular
time during the week. See Independent Study Operations Manual at 8-4 (discussing Cal. Educ. Code § 51747.5 and emphasizing that attendance is determined
by work product and not by when the work was completed). California permits students
in their eighteenth year "to remain in K-12 independent study until they are twenty-one."
Independent Study Operations Manual at 6 5.
Charter schools may provide independent study, and are subject to the laws governing
non-classroom independent study programs. Cal. Educ. Code § 47612.5(b). Teachers in
charter schools must hold a Commission on Teacher Credentialing certificate, permit
or other document equivalent to that which a teacher in other public schools would
be required to hold. Cal. Educ. Code § 47605(l).
Finally, there is also home-based independent study, which is subject to all of the
legal mandates, guidelines and recommendations of the Independent Study Operations
Manual. See Independent Study Operations Manual, Chapter 7. The principal characteristic of this
kind of independent study is the parent's assumption of a major responsibility in
providing the student's educational program apart from the traditional school. Nevertheless,
the supervising teacher and support staff work directly with the children and their
parents. Id., at 7-2.
A credentialed employee of the district or county office of education must take the
responsibility to coordinate, evaluate and provide the general supervision of the
student's study. Id., at 7-2; Cal. Educ. Code § 51747.5.3
Some of the critical elements of independent study through public schools in California appear to be:
Written policies issued by the school district or county office of education regarding
the maximum length of time, by grade level and type of program, that may elapse between
the time an independent study assignment is made and the date by which the pupil must
complete the assigned work; and the number of missed assignments that will be allowed
before an evaluation is conducted to determine whether it is in the best interest
of the pupil to remain in independent study.
A written agreement for each independent study pupil shall be maintained on file,
including the manner, time, frequency, and place for submitting the pupil's assignments
and for reporting his or her progress; the objectives and methods of study for the
pupil's work, and the methods utilized to evaluate that work; specific resources,
including materials and personnel, that will be made available to the pupil; a statement
of the policies referred to above regarding the maximum length of time between assignment
and completion of the assigned work, and the number of missed assignments allowed
prior to an evaluation of whether the pupil should be allowed to continue independent
The agreement should state the duration of the independent study agreement, which
shall not be valid for any period longer than one semester or one-half year for a
school on year-round calendar; a statement of the number of course credits or, for
elementary grades, other measures of academic accomplishment appropriate to the agreement,
to be earned by the pupil on completion.
The agreement must generally include a statement that the independent study is an
optional educational alternative.
The agreement shall be signed, prior to the commencement of study, by the pupil, the
pupil's parent, legal guardian or caregiver if the pupil is less than 18 years old;
the certified employee who has been designated as having responsibility for the general
supervision of independent study; and all persons who have direct responsibility for
providing assistance to the pupil.
The agreement must adhere to school board policy and legal requirements.
Every student engaged in independent study must be enrolled in a specified school
of a school district or county office of education.
The local district or county superintendent's office must maintain records that include
a copy of the adopted governing board's policy and procedures, and a separate listing
of pupils and adult education students by grade level, program and school, who have
engaged in independent study, identifying units of the curriculum undertaken and units
of the curriculum completed by each of those pupils in kindergarten and grades 1 to
8, inclusive, and identifying course credits attempted by and awarded to each of those
pupils in grades 9-12 inclusive and each of those students in adult education, as
specified in their written agreements.
The local district or county superintendent's office must maintain a file of all the
agreements, including representative samples of each pupil's or adult education student's
work products bearing signed or initialed and dated notations by the supervising teacher
indicating that he or she has personally evaluated the work or that he or she has
personally reviewed the evaluations made by another certificated teacher.
The local district or county superintendent's office must maintain a daily or hourly
attendance credit register, as appropriate to the program in which the pupils or adult
education students are enrolled, separate from classroom attendance records, and maintained
on a current basis as time values of pupil or adult education student work products
are personally judged by a certificated teacher, and reviewed by the supervising teacher
if they are two separate persons.
When a student's program consists of part classroom based study and part independent
study, attendance for the latter must be recorded in a separate register.
The qualified employee periodically assesses the student's product (study or academic
work) and assigns to it a value in time (hours or days as appropriate).4
The independent study by each pupil or student shall be coordinated and evaluated,
and shall be under the general supervision of an employee of the school district or
county office of education who possesses a valid certification or emergency credential.
Cal. Educ. Code §§ 51747 and 51747.5(b); 5 Cal. Code Regs. § 11703; California Department
of Education website, "Legal Requirements for Independent Study", http://www.cde.ca.gov/sp/eo/is/legal.asp; see also, Independent Study Operations Manual; see also POMS RS 00205.285(C)(2) (listing the types of materials to be considered in determining whether a program
meets state law).
Local school districts in California may have websites that provide information about
a school's full-time attendance standards for regular day students, and, if available
in that particular district, information about independent study.
1 The exceptions to the 20-hour full-time attendance federal requirement were set forth
2 The apportionment credit rules refer to per pupil funding issues for California schools
not at issue here except to the extent that they provide how independent study hours
are quantified and counted. See generally Cal. Educ. Code §§ 46201, 46300 46307.1, 51745(b), 51745.6, 51747, 51747.3, 51745.5,
51748; 5 Cal. Code Regs.§ 11703, 19819; Independent Study Operations Manual, Chapter 8 (4th Ed. 2000), available at http://www.cde.ca.gov/sp/eo/is/.
3 California also provides for adult education for communication and computational
skills to the 12th grade level. Cal. Educ. Code § 8510(a). The California Education
Code provides that adult basic education, including the high school diploma program,
is the responsibility of high school and unified school districts. Cal. Educ. Code
§§ 8530, 8531. Minors and high school students may be admitted to adult school classes,
pursuant to certain conditions. Cal. Educ. Code § 52500, 52500.1. An adult school
may award high school diplomas. Cal. Educ. Code § 52507-520509.
4 Attendance credit is different from academic credit. Attendance credit, as reported
by the school district or county office in average daily attendance (ADA) units or,
for some programs, in hours, generates an apportionment of revenue for the district
or county office. The credit is based on minimum requirements for a student's presence
in school or the equivalent in study effort. A student's academic credit leads to
a record of progress or promotion toward high school graduation requirements. Independent Study Operations Manual, at 8-3.