TN 7 (04-10)

PR 08105.019 Kansas

A. PR 10-087 Status of Herington Community Learning Center as an Educational Institution in regard to Jessica B~, Claim Number ~

DATE: March 29, 2010

1. SYLLABUS

The Herington Community Learning Center (HCLC) in Kansas is an independent study program and provides secondary education in accordance with Kansas law. Thus, the HCLC is an educational institution for SSA purposes. The student must also meet Federal standards for full-time attendance and all other requirements for the payment of benefits.

2. OPINION

You requested a legal opinion regarding whether Herington Community Learning Center (HCLC), an Educational Services and Staff Development Association of Central Kansas (ESSDACK) Learning Center, is an educational institution within the meaning of the Kansas education statutes and 42 U.S.C. § 402(d)(7). Based on the facts of this case, it is reasonable to conclude that HCLC is an educational institution within the meaning of the Kansas education statutes and 42 U.S.C. § 402(d)(7).

FACTUAL BACKGROUND

The materials you provided indicate that Jessica B~ has requested reinstatement of auxiliary benefits based on her alleged full-time attendance at HCLC. HCLC is an ESSDACK Learning Center. In response to a request from a Social Security Administration office, Julie S~, the Site Director at HCLC, explained that HCLC was considered a Drop-Out Recovery Program or Adult Education Recovery Center. She noted that USD 487 Herington High School issued the credits, transcripts, and diplomas for students attending HCLC. Ms. S~ indicated that HCLC does not have attendance requirements or signed agreements with students regarding requirements. HCLC does track students’ progress toward their high school diplomas. Ms. S~ further explained that students can complete their coursework at home or at the facility.

Attendance records from HCLC show that Jessica attended 22.01 hours in August 2009, 16.11 hours in September 2009, 11.38 hours in October 2009, 3.06 hours in November 2009, 0 hours in December 2009, and 48.79 hours in January 2010. Jessica also reported working on coursework online from home for approximately four or five hours each day since August 2009.

On March 9, 2010, we contacted Kevin I~, an attorney in the Legal Department of the Kansas State Department of Education, to obtain information regarding the formation and operation of ESSDACK. Mr. I~ stated that ESSDACK was an interlocal cooperative under Kan. Stat. Ann. § 72-8230. Under this statute, the “boards of education of any two or more school districts [may] enter into a school district interlocal cooperation agreement for the purpose of jointly and cooperatively performing any of the services, duties, functions, activities, obligations or responsibilities which are authorized or required by law to be performed by school districts of this state.” Kan. Stat. Ann. § 72-8230(a). The statute requires that the interlocal cooperative establish a board of directors consisting of “members of boards of education of school districts party to the [interlocal cooperation] agreement.” Kan. Stat. Ann. § 72-8230(a)(1). Mr. I~ explained that while an interlocal cooperative is not a school district, it has the same powers as a school district except for the power to levy and collect taxes. See Kan. Stat. Ann. § 72-8230(b).

We also spoke with Terri P~, Director of Student Services at ESSDACK, on March 9, 2010, in order to obtain more information about the ESSDACK Learning Centers. Ms. P~ explained that the requirements at each ESSDACK Learning Center depend on the requirements of the specific high school that issues the credits, transcripts, and diplomas. She noted that the ESSDACK Learning Centers do not require a specific number of hours of attendance each week and that students work at their own pace to complete the coursework required for graduation from the high school with which the center is associated. Ms. P~ further noted that ESSDACK students are not considered students of ESSDACK but students of the high school with which the center is associated. She indicated that she advised students to work on their coursework 20 hours each week.

For further information regarding the relationship between HCLC and Herington High School, we contacted Mark C~, the Assistant Principal at Herington High School, on March 9, 2010. Mr. C~ explained that Herington High School issues the credits, transcripts, and diplomas for students at HCLC. He noted that students who drop out of Herington High School may attend HCLC. In addition, students who fail one or more courses at Herington High School may attend HCLC and recover those credits. Mr. C~ indicated that students who attend HCLC to recover credits or to receive their high school diploma after dropping out must pay for the services at HCLC. He noted that other students, who are referred to HCLC by Herington High School, do not have to pay for the services at HCLC. Mr. C~ explained that Herington High School could refer up to five students each year to HCLC.

On March 10, 2010, we contacted Cherie N~, an education program consultant at the Kansas State Department of Education, for further information regarding ESSDACK. Ms. N~ explained that the virtual component of ESSDACK’s services had been approved by the Kansas State Department of Education. She clarified that this approval did not operate as an approval of all of the services provided by every ESSDACK Learning Center.

We contacted Ms. S~ on March 10, 2010, to obtain more information regarding HCLC. Ms. S~ noted that a student generally must attend a total of two six-hour days after enrolling in HCLC. She noted that HCLC has waived this requirement for only one student who needed to work only from home. She explained that there are no attendance requirements other than completing the two six-hour days. Ms. S~ indicated that all students at HCLC are completing high school coursework and that all of their credits are issued through Herington High School. On March 22, 2010, we spoke with Ms. S~ again. Ms. S~ indicated that students must complete the required two six-hour days within one month of enrollment. After completing the two six-hour days, a student is considered full-time and will continue to be considered full-time during that academic year as long as he or she completes at least one assignment each month. To be counted as a full-time student for the next academic year, the student would need to attend two six-hour days again.

Analysis

Section 202(d) of the Social Security Act provides that child’s insurance benefits usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6) and (7). Entitlement to child’s benefits may continue, however, if (among other things) the child “was a full-time elementary or secondary student and had not attained the age of 19.” See 42 U.S.C. § 402(d)(1). A full-time elementary or secondary student is defined as “an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the [Commissioner] (in accordance with regulations prescribed by [him]) in the light of the standards and practices of the schools involved . . .” Id. at § 402(d)(7)(A). An 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.” Id. at § 402(d)(7)(C)(i). Except for two specific exceptions noted in the Social Security regulations, which will be discussed later, the student must be scheduled to attend school for at least 20 hours per week in order to be considered a full-time student. See 20 C.F.R. § 404.367(c) (2009).

The issue is whether HCLC qualifies as an educational institution under Kansas law. See 20 C.F.R. § 404.367(a); Program Operations Manual System (POMS) RS 00205.200A. HCLC is an ESSDACK Learning Center. Initially, we note that we issued a legal opinion in 2002 finding that a Reno County ESSDACK Learning Center qualified as an educational institution under Kansas law. See Memorandum, “Status of the Reno County/Educational Services and Staff Development Association of Central Kansas Learning Center as an Educational Institution . . . ,” Region VII to RC, SSA, April 18, 2002 (Reno County Memorandum). In developing our response to that request, we contacted Kevin I~, an attorney in the Legal Department of the Kansas State Department of Education, who opined that ESSDACK would be treated as a school by the Kansas State Department of Education. We again contacted Mr. I~ on March 9, 2010, in developing our response to this request. Mr. I~ stated that ESSDACK was an interlocal cooperative under Kan. Stat. Ann. § 72-8230. Under this statute, the “boards of education of any two or more school districts [may] enter into a school district interlocal cooperation agreement for the purpose of jointly and cooperatively performing any of the services, duties, functions, activities, obligations or responsibilities which are authorized or required by law to be performed by school districts of this state.” Kan. Stat. Ann. § 72-8230(a). Mr. I~ explained that while an interlocal cooperative is not a school district, it has the same powers as a school district except for the power to levy and collect taxes. See Kan. Stat. Ann. § 72-8230(b).

Herington High School’s Assistant Principal, Mr. C~, stated that Herington High School issues the credits, transcripts, and diplomas of students at HCLC. The Director of Student Services at ESSDACK, Ms. P~, noted that students at ESSDACK Learning Centers follow the requirements of the particular high school with which they are associated. She also stated that ESSDACK Learning Centers do not have students because the students who use their centers are considered students of the high school with which their center is associated. Ms. S~, Site Director at HCLC, noted that upon enrollment at HCLC, a student generally must attend two six-hour days. Based on our contact with the Kansas State Department of Education, Herington High School, ESSDACK, and HCLC, we believe that HCLC would be considered a school which provides secondary education under Kansas law, and thus, would be considered an educational institution.

The next issue is whether Jessica is in full-time attendance at HCLC. If the child is attending “a school which provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located,” the child must be “in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration . . . which is considered full-time for day students under the institution’s standards and practices.” 20 C.F.R. § 404.367(b). The evidence from Jessica and HCLC indicate that her course of study was at least 13 weeks duration. Except for two specific exceptions noted in the Social Security regulations, the student must be scheduled to attend school for at least 20 hours per week in order to be considered a full-time student. See 20 C.F.R. § 404.367(c). If the student is “in an independent study program . . . [the] 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(c). An independent study program is described as an “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.” 20 C.F.R. § 404.367(a)(2). The POMS further defines an “independent study program” as “run by local education agencies (LEA) such as high schools or school districts, in accordance with specific State law requirements, and the credits earned count toward high school graduation. The programs involve periodic teacher contact, direction, and testing on campus, with the student making academic progress generally through independent study at home.” POMS RS 00205.285.A.

As discussed above, HCLC is part of ESSDACK, and several school districts agreed to create ESSDACK under Kan. Stat. Ann. § 72-8230, which allows for interlocal cooperation agreements. At HCLC students generally must attend two six-hour days within one month of enrollment, but are then free to complete their coursework at the facility or from another location. Based on statements from Ms. S~ and Ms. P~, we believe that HCLC qualifies as an “independent study program.” We have previously found that similar programs qualified as independent study programs. See Reno County Memorandum; Memorandum, “Status of the Lawrence Diploma Completion Program and the South Central Kansas Education Service Center’s Diploma Completion Program as an Independent Study Program . . . ,” Region VII to RC, SSA, August 24, 2006 (Lawrence Memorandum). Therefore, because Jessica is enrolled in an independent study program, the number of hours 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. See 20 C.F.R. § 404.367(c).

Considering Jessica’s statements regarding her work from home and HCLC’s statements regarding her attendance at the facility, Jessica has spent at least 20 hours in school attendance each week and can be considered to be in full time attendance. See 20 C.F.R. § 404.367(a)(2). Because a student enrolling at HCLC generally must attend only two six-hour days during the academic year, any student meeting this requirement has fulfilled HCLC’s attendance requirements and therefore is a full-time student in light of the school’s standards and practices. See 42 U.S.C. § 402(d)(7)(A) and 20 C.F.R. § 404.367(b). Kansas State Department of Education guidelines on counting students for funding purposes further support this conclusion. Under the formula, a school would most likely be able to “count” a student attending two six-hour days within certain time periods. See Kansas State Department of Education, Counting Kids Handbook 13 (July 2009), available at http://www.ksde.org/Default.aspx?tabid=455. The formula is similar for virtual schools. See Kansas State Department of Education, Virtual Education Requirements for Kansas (August 12, 2008), available at http://www.ksde.org/Default.aspx ?tabid=455. Because HCLC records show that Jessica has completed coursework at the facility and apparently attended two six-hour days we believe that Jessica could be considered a full-time student in light of the school’s standards and practices.

There is no case law regarding this subject from the Tenth Circuit Court of Appeals or the Kansas state or federal district courts. However, as explained in our previous opinions on the Reno County ESSDACK Learning Center and the Lawrence Diploma Completion Program, the cases on this issue support a liberal application of the Social Security Act. See Haberman v. Finch, 418 F.2d 664 (2nd Cir. 1969); Okesson v. Shalala, No. 93-1554-PA, 1994 WL 686773 at *3 (D. Or. Aug. 9, 1994); Swanson v. Bowen, No. C-86-20621-WAI, 1988 WL 251979 at *2 (N.D. Cal. Feb. 23, 1998).

CONCLUSION

Based on the specific facts of this case, we believe that HCLC qualifies as an educational institution and that Jessica qualifies as a full-time student.

Sincerely,

Kristi A. S~
Regional Chief Counsel

By: __________________________
Katherine H~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508105019
PR 08105.019 - Kansas - 04/19/2010
Batch run: 04/19/2010
Rev:04/19/2010