This memorandum is in response to your request for a legal opinion as to whether the
independent study program at Owen Valley Alternative School (OVAS) meets the state
law requirements. You indicated that this information is necessary in determining
whether Grace A~ (Grace) qualifies as a full-time secondary school student thereby
making her eligible for survivor's benefits on the account of her late father, Daniel
As discussed herein, we conclude that OVAS is an educational institution within the
state law requirements. However, further development is needed to determine whether
Grace qualifies as a full-time student for child's insurance benefit purposes.
Grace was entitled to surviving child's benefits on the record of her father. Benefits
were terminated in January 2002 because Grace attained age 18. Grace submitted an
application for student benefits in March 2002. She stated that she attended OVAS,
and the school confirmed that Grace was in full time attendance and that the course
of study was at least 13 weeks.
OVAS, located in Spencer, Indiana, is an independent study program. School administrators
stated that the school is designed to accommodate students who work, live on their
own, are parenting, and/or have other adult responsibilities. Students are required
to have a job and attend school at least two hours a day where they receive help with
assignments and take tests. A student must meet mandatory class deadlines four times
a year and have a 93% attendance rate. The student does the majority of schoolwork
at home and is expected to spend two to four hours a day doing so.
A claims representative contacted an employee of the State of Indiana Department of
Education, who stated that OVAS receives students from five different schools. Students
eligible for placement in the program must meet one of several criteria and attend
programs a minimum of two hours per day. She further stated that OVAS was set up on
a mastery basis. Once a student studies a section, he or she is tested over the material
during classroom time and submits any assignments due. Students are held to the same
standards of work as students in regular high school settings. Once the students satisfactorily
complete their coursework for the semester, they receive credit on the transcript
of their referring high school.
The Social Security Act ("Act") provides for the payment of child's insurance benefits
(CIB) to certain unmarried children of individuals who are entitled to old-age or
disability insurance benefits or who died fully or currently insured. 42 U.S.C. §
402 (d). Under the applicable provision, an eligible child who is 18 years old may
receive benefits if she is a full-time elementary or secondary school student. 42
U.S.C. § 402 (d)(1); 20 C.F.R. § 404.350 (a)(5); POMS RS 00205.001.
The Act states that 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 the light of the standards and practices of the
schools involved." 42 U.S.C. § 402 (d)(7)(A). The regulations provide further guidance
on full-time elementary or secondary school student's eligibility for CIB. Students
must be in attendance at a school which provides an elementary or secondary education
as determined under the law of the State or other jurisdiction in which it is located.
20 C.F.R. § 404.367(a). Participation in an independent study secondary education
program may meet the requirement in 20 C.F.R. § 404.367(a), if the program is in accordance
with the law of the State or other jurisdiction in which the student resides, and
the program is administered by the local school or school district/jurisdiction. 20
C.F.R. § 404.367(a)(2). Students must also be in full-time attendance in a day or
evening noncorrespondence course of at least 13 weeks duration, while carrying a subject
load that is considered full-time for day students under the institution's standards
and practices. 20 C.F.R. § 404.367 (b). Furthermore, to be considered in full-time
attendance, the scheduled attendance must be at the rate of at least 20 hours per
week, with certain exceptions. 20 C.F.R. § 404.367(c).
I. Requirements of 20 C.F.R. § 404.367 (a)
Because an independent study education program must be in accordance with the law
of the State or other jurisdiction in which the student resides, we must examine Indiana
law to determine whether OVAS meets those standards.
Indiana statutes define an alternative education program as one that instructs students
in a different manner than the manner of instruction in a traditional school setting.
Ind. Code § 20-10.1-4.6-4. The program must comply with administrative rules of governance
for alternative education programs and the rules for admission of eligible students
to those programs. Id.
Documentation from the Indiana Department of Education indicates that OVAS complies
with this regulation. In a phone call initiated by this office, Sue F~, an employee
with the division of alternative education of the Indiana Department of Education,
reiterated some information in the file and also added that OVAS is not a separate
school, but rather a program of a local high school, Owen Valley High School. She
stated that Owen Valley High School is accredited by the Indiana Department of Education.
Last, she indicated that OVAS students are held to the same standards as traditional
high schools; state competency guidelines must be met before a passing grade is issued.
After satisfactorily completing their coursework, students obtain credit on their
referring high school transcripts and are eligible to receive diplomas just as traditional
students are. Thus, OVAS is an independent study program in accordance with Indiana
law and meets the educational institution requirement of 20 C.F.R. § 404.367(a).
II. Requirements of 20 C.F.R. § 404.367(b)
In order to be considered in full-time attendance, a student must be in a day or evening
noncorrespondence course of at least 13 weeks duration, and students must carry a
subject load considered full-time for day students under the institution's standards
and practices. 20 C.F.R. § 404.367(b). The OVAS school administrator verified that
Grace attended school at least 13 weeks in duration and that she was considered to
be a full-time student under their standards and practices.
III. Requirements of 20 C.F.R. § 404.367 (c)
To meet full-time attendance requirements, a student must be scheduled for school
attendance at the rate of at least 20 hours per week. 20 C.F.R. § 404.367 (c). However,
if enrolled in an independent study program, the numbers of hours spent in school
attendance are determined by combining the number of hours of attendance with the
agreed upon number of hours spent in independent study. Id. A student may also be considered in full-time attendance if the school does not schedule
at least 20 hours a week and going to that school is the only reasonable alternative
available, or if the student has a documented medical condition which prevents him
or her from attending at least 20 hours per week. Id.
Here, OVAS requires students to attend school a minimum of 10 hours per week, although
some students attend more. Grace indicated on FORM SSA-1372-BK that she attended school
"10 or more" hours per week. The administrator for OVAS estimated that students spend
2 to 4 hours per day in independent study. However, the file did not document that
an explicit agreement existed between the program and the students agreeing to study
independently for that amount of time. A direct contact by our office with the program
administrator further confirmed that no such agreement existed. The 2 to 4 hours spent
studying independently is simply an expectation, but not a requirement. Because there
is no agreed upon number of hours in independent study and Grace's attendance falls
below the 20 hour requirement, she does not qualify as being in full-time attendance
under 20 C.F.R. § 404.367 (c), unless one of the exceptions in 20 C.F.R. § 404.367
(c)(1) or (2) applies.
If attending OVAS is Grace's only "reasonable alternative," then she may be considered
a full-time student. 20 C.F.R. § 404.367 (c)(1). Where a student is unable to attend
school at least 20 hours per week and the school considers the student to be in full-time
attendance under its standards and practices, then the student may be considered in
full-time attendance under certain circumstances. For example, a file may be documented
with a statement from a school official stating that the school does not schedule
at least 20 hours per week and attending that school is the student's only reasonable
alternative. POMS RS 00205.310H. Or, a medical exception may apply. 20 C.F.R. § 404.367 (c)(2); POMS RS 00205.310A.
Here, the file contains a statement from a school administrator stating that the school
does not schedule at least 20 hours per week of instruction. However, no documentation
exists stating that attending the school is Grace's only reasonable alternative. Further
development is needed to make that determination. A statement from a school administrator
verifying that attending OVAS is Grace's only reasonable alternative would meet that
requirement. In the alternative, Grace may be considered in full-time attendance if
she has a medical condition that prevents her from attending school at least 20 hours
per week. 20 C.F.R. § 404.367 (c)(2). We were not informed that Grace has alleged
such a medical condition.
We conclude that OVAS qualifies as an educational institution. Further development
is required to determine whether Grace was in full-time attendance.
Thomas W. C~
Regional Chief Counsel
Deborah A. C~
Assistant Regional Counsel