TN 12 (09-15)
PR 08105.025 Michigan
PR 15-177 - Michigan, Online School Legal Opinion – Southeast Michigan Cyber Academy
Date: August 5, 2015
Southeast Michigan Cyber Academy (Southeast), located in Redford, Michigan, is a public school that provides an online alternative education program. Southeast operates through the public school district of Redford Union Schools and complies with the Michigan school code and relevant laws related to alternative education programs. Southeast is, therefore, an educational institution for SSA purposes.
You asked whether Southwest Cyber Academy should be considered an educational institution (EI) for the purpose of awarding child insurance benefits (CIB) to J~. Our research, however, indicates that there is likely no school called the Southwest Cyber Academy. There is a Southeast Michigan Cyber Academy (Southeast), which is likely the school attended by J~. For this reason, we discuss Southeast below, and conclude that it is an EI.
Claimant is requesting student benefits based on his status as a full time student at Southeast from 2014-2015. J~ graduated from Southeast in June, 2015. Southeast is a member of the Redford Union School District No. 1. Southeast is a Michigan public school and the physical address is in Redford, Michigan. There is no tuition and Southeast provides certified teachers and educational materials to students. Southeast provides an alternative education program and follows the Michigan Merit Curriculum (MMC). Upon completion of the Southeast program students will receive a Michigan high school diploma.
Section 202(d)(1) of the Social Security Act provides that, under certain circumstances, a child of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, shall be entitled to CIB. One of the requirements for CIB eligibility for a non-disabled child is that the child must be unmarried and either under the age of 18 or a full-time elementary or secondary school student and under the age of 19. 42 U.S.C. § 402(d)(1)(B). For a child who was never under a disability, CIB benefits terminate when the child turns 18 years old if he or she is not a full-time elementary or secondary school student; and benefits terminate at age 19 regardless of the child’s educational status. 42 U.S.C. § 402(d)(1)(F).
The Social Security Act states at section 202(d)(7)(C)(i) 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. 42 U.S.C. § 402(d)(7)(C)(i). The POMS explains this regulation at RS 00205.200(A). POMS RS 00205.250(B)(1) states that it should be assumed public high schools in the United States are educational institutions, unless there is evidence to the contrary.
POMS RS 00205.295 provides policy about determining whether online schools are educational institutions for SSA purposes. The POMS defines an online school as “one that offers Internet-based courses to students.” POMS RS 00205.295 (A). The POMS recognizes that online schools vary considerably in the methods used to provide education to students. According to the POMS, “[s]ome features of online schools may include virtual classrooms; an interactive curriculum; email, telephone, and fax access to teachers; either online or in-person completion of tests; required time spent online that the school monitors; and individualized instruction.” POMS RS 00205.295 (A).
Southeast Qualifies as an Educational Institution
Michigan recognizes alternative education programs as part of the public school system. Michigan approved alternative education programs in 2006 pursuant to the Michigan School Code stating that the board of a school district shall ensure that each pupil is offered the curriculum necessary for the pupil to meet the Michigan Merit Curriculum requirements. The board may provide this curriculum by using alternative instructional delivery methods such as alternative course work, humanities course sequences, career and technical education, industrial technology courses, or vocational education, or by a combination of these. School districts and public school academies that operate career and technical education programs are encouraged to integrate the credit requirements into those programs. Mich. Comp. Laws Ann. 380.1278(b)(3)(e).
Michigan law states that each school district shall provide at least 1,098 hours and, beginning in 2010-2011, the required minimum number of days of pupil instruction. Beginning in 2014-2015, the required minimum number of days of pupil instruction is 175. Mich. Comp. Laws Ann. § 388.1701(3)(a)(i) amended by Mich. Legis. Serv. P.A. 85 (H.B. 4115)(effective October 1, 2015). However, schools not created pursuant to the revised school code section 553a and defined in section 551 as cyber schools of excellence may waive the hour and day requirement and operate under a seat time waiver. “[T]he superintendent may waive for a district the minimum number of hours and days of pupil instruction requirement of subsection (3) for a department-approved alternative education program. Mich. Comp. Laws Ann. 388.1701 (9).
A seat time waiver removes the state requirements for days, hours, and physical attendance for traditional public schools and allows schools to operate 100% online. Pupil Accounting Manual 5-0-B. Traditionally, alternative education programs are reserved for students who have been expelled, are pregnant, or disabled. Pupil Accounting Manual 5-0-B states that a local school district, seeking to offer pupils access to online learning options and seeking to offer the opportunity to continue working on a high school diploma or grade progression without physically attending at the school facility may choose to do so under a seat time waiver. Applications for seat time waivers are individually submitted by public school districts and considered by the State Superintendent each year. Mich. Comp. Laws Ann. 388.1701 (g)(i)-(iii). The seat time waiver does not remove the teacher certification requirement. Mich. Comp. Laws Ann. 388.1701 (10)(e).
We believe that Southeast is an EI for its compliance with the Michigan school code and relevant laws relating to alternative education programs. Southeast operates through the public school district of Redford Union Schools and has successfully been granted a seat time waiver for the state days and hours requirement. The teachers at Southeast are certified with the Michigan Educator Certification Database and the course load meets the requirements set forth by the Michigan Merit Curriculum standards.
We conclude that Southeast Michigan Cyber Academy is an educational institution. If you find the statements in this case credible, and the claimant appears to have satisfied the full-time attendance requirement when he graduated on June 2015; we conclude that you could find that claimant was a full-time secondary school student at a EI as defined under section 202(d) of the Social Security Act.
Acting Regional Chief Counsel, Region V
OGC Legal Intern