Independent study is an alternative method of secondary education run by local education agencies in accordance with State law requirements. To determine whether an independent study program meets the requirements of California law, check PR 08105.000 for a legal precedent opinion for the student's independent study program. If no legal precedent opinion exists for the student's independent study program, follow the steps in RS 00205.285D. to obtain one.

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.

DISCUSSION

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. § 402(d)(1)(B).

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 00205.200.

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 (FTA) requirements.

 

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:

1. (a) 

   The student is in full-time attendance based on Federal standards; and

2. (b) 

   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 study.

• •

  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 above.

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.