TN 2 (12-07)
PR 08105.030 Nebraska
A. PR 08-018 Request for Legal Opinion on Determining the Educational Status of Internet-based "Virtual Education"
DATE: November 5, 2007
The University of Nebraska - Lincoln Independent Study High School is an independent study program in accordance with Nebraska law. It is, therefore, 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.
You previously requested our opinion as to whether the Missouri "Virtual Instruction Program" (or, "MoVIP") qualifies under section 202(d)(7) of the Social Security Act (the Act), 42 U.S.C. § 402(d)(7), as a school that provides elementary or secondary education in accordance with the laws of the state. We advised that the MoVIP program, either used alone or in conjunction with an otherwise-qualified school or home school program, may be used to confer full-time attendance (FTA) status to a student. Now, you have requested further opinions about similar programs in the other states of our region.
The region's state programs vary widely in the types of classes offered and the degree of state government oversight. Kansas and Missouri programs meet the requirements of § 202(d)(7), either alone or in conjunction with traditional classroom instruction. Iowa has a state-run "virtual" Internet program, but it is essentially used only to offer additional classes to students physically attending a traditional school. Nebraska has passed legislation demonstrating intent to begin a state-run virtual school program, but it does not have such a program at this time.
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." 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 the light of the standards and practices of the schools involved. See 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). See also POMS RS 00205.200 (defining "educational institution). 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 in full-time attendance. See 20 C.F.R. § 404.367(c) (2007). In order to qualify for benefits, a full-time student may attend a school that provides elementary or secondary education as determined under the laws of the state where the school is located; or study as a home school student, a correspondence student, or an independent study. See 20 C.F.R. § 404.367(a).
Since 2004, Iowa has had two state-led programs for high school students (grades 9-12), called "Iowa Learning Online," or ILO, and "Iowa Online AP Academy." ILO is a program of the Iowa Department of Education, but there is no particular authorizing legislation. See John W~, and Jennifer R~, et al., Keeping Pace with K-12 Online Learning: a Review of State-Level Policy and Practice (Keeping Pace), 82-83 (2007) (available at http://www.evergreenassoc.com/documents/KeepingPace2006.pdf). Instructors are fully accredited by the state. See ILO, Frequently Asked Questions (ILO FAQ), available at http://iowalearningonline.org/faq.cfm. The ILO does not appear to be a large program. One source states that there were only 250 students enrolled in a recent summer program.
The ILO program expects students to "attend" virtual Internet courses at a school building. See ILO FAQ. The program contemplates students attending the classes via Internet video feed in a classroom or computer lab at their school, with additional supervision from an on-site teacher. Id. It is intended to help students to take particular subjects that may not be offered in their local school. Id. In other words, the Iowa program appears to be conducted in the same way as normal school attendance. From SSA's viewpoint, the program should be indistinguishable from normal schooling. Therefore, a student utilizing ILO for a portion or the whole of his classes will be attending a school in accordance with the laws of his state, and he will likely be using combined classroom and virtual teaching to meet the full-time attendance requirement. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.367(b) (2007) (full-time attendance requirement met for students in day course of 13 weeks duration, and carrying a subject load which is considered full time).
The Kansas State Department of Education (KSDE) does not conduct a state-led virtual school program, but it has an extensive program of approved virtual school programs. KSDE requires that various district and private virtual schools register with the state, and submit to "perhaps the most-developed and well-documented system for tracking online programs" if they wish to receive government funding. Keeping Pace at 85. As a result, Kansas "virtual schools" programs are extensive and varied, and include a number of "cyber charter schools" and online programs run by local districts. Id. See also 2007-2008 Kansas Virtual Schools, available at http://www.ksde.org/LinkClick.aspx?fileticket=GSr3jZr5PUI=&tabid=455 (PDF file containing 35 currently-registered schools, including both local school districts and charter-type schools). See also Kan. Stat. Ann. § 72-1903 (providing for "charter schools" to be accredited by the state). To receive funding, virtual schools must meet all standards required by the state, including ensuring that students undergo required state assessments for their grade level, and that courses are aligned to state standards. See Keeping Pace at 86. In addition, Kansas requires verification of "enrolled and attending" students through an "Academic Activity Log." Id. at 85.
A student may use the KSDE virtual school program to meet the requirements of a "full-time" student. A student attending a virtual public or charter school which has qualified for funding is clearly complying with "the law of the State . . . in which it is located." See 20 C.F.R. § 404.367(a) (2007). According to Kansas statutes, a child under age 16 must attend continuously each school year either a public school or "a private, denominational or parochial school taught by a competent instructor for a period of time which is substantially equivalent to the period of time public school is maintained in the school district in which the private, denominational or parochial school is located." Kan. Stat. Ann. § 72-1111(a). The Kansas statutes require that a school term must consist of 186 school days, no less than 6 hours per day for grades kindergarten through 11, and slightly less for grade 12. In the alternative, the school term must consist of 1,116 hours per year for grades one through eleven, and again, slightly less for grade 12. Kan. Stat. Ann. § 72-1106(a) and (b) (Supp. 1996). There are different attendance requirements for religious school or parochial students, which may have virtual school students, but they are still expected to be engaged in at least five hours of school work per day. Kan. Stat. Ann. § 72-1111(f). According to a telephone conversation with Staci W~, Coordinator of Educational Alternatives at KSDE, any student utilizing a Kansas public virtual school program will comply with public school attendance requirements. In fact, she mentioned that students' time spent in schooling is often automatically tracked by their computer. Such a virtual school student will therefore be in compliance with both Kansas and SSA attendance requirements. Thus, a student will also meet SSA's 20-hour per week attendance requirement. See 20 C.F.R. § 404.367(c) (2007).
Interestingly, Ms. W~ noted that home school students often enroll in virtual school programs, and that the state then considers such students as normal full-time students whose time and production is carefully tracked. On the other hand, it is possible that a student may claim to be a full-time student using a Kansas virtual school program, but whose school does not appear on the list of virtual schools, cited above. In this case, it may be that the school has not met the stringent state requirements required to receive funding. Such a student should be assessed as if he were a home school student in accordance with the POMS and previous opinions provided by this office.
The Missouri virtual school program, or MoVIP, is designed to "offer instruction in a virtual setting using technology, intranet, and/or Internet methods of communication." Mo. Rev. Stat. § 161.670.1 (2007). A "full-time equivalent student" is a student who has "successfully completed the instructional equivalent of six credits per term." Id. Each "virtual course shall count as one class and shall generate that portion of a full-time equivalent that a comparable course offered by the school district would generate." Mo. Rev. Stat. § 161.670.2. In addition, the virtual instruction program must comply with all laws and regulations applying to schools. See Mo. Rev. Stat. § 161.670.4. The Missouri program is more closely tied to the school administration program at the state level than the Kansas program. Students participating in the program are guided in their studies by Missouri certified teachers, and courses are to be delivered through use of the Internet, including streaming audio and video, e-mail, chat rooms, bulletin boards, and so on. Teachers are to directly communicate with students via telephone, e-mail, instant messaging, and discussion forums. See "MoVIP Frequently Asked Questions," http://dese.mo.gov/divimprove/curriculum/movip/faq.html.
As noted in our previous opinion, a student using the MoVIP for all or a portion of his schooling may clearly be a full-time student under SSA regulations. See, e.g., Chris Harris, "MoVip off to a smooth start," Southeast Missourian (August 27, 2007), available at http://www.semissourian.com/story/1249300.html (students describing using MoVIP for a portion of schooling). As previously noted, a MoVIP student is attending an educational institution in accordance with the laws of the state of Missouri. See 20 C.F.R. § 404.367(a)(2). See also POMS RS 00205.285 ("Independent study programs are run by local education agencies . . . 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."). A student attending MoVIP for all of her schooling is considered by the state to be full-time if she carries "the instructional equivalent of six credits per term." Mo. Rev. Stat. § 161.670.2. Therefore, in order to meet the state standard, the factfinder will have to assess whether the student is receiving the required six credits. The student must also be attending the school 20 hours per week. See 20 C.F.R. § 404.367(b) (2007). Because of the demands of obtaining 6 credits, it appears likely that any MoVIP student will also be receiving the required 20 hours of instruction if she is taking the required 6 credits, but both the regulations and POMS state that such an analysis must be undertaken.
Nebraska does not appear to have a virtual school program at this time. Legislation was passed in August 2006 to develop infrastructure for such a program, so there may be one in the future. See Keeping Pace at 93. See also National Council for Online Learning (NACOL), "Nebraska," found at http://www.edgateway.net/cs/nacol/view/states/27.
The state has two "online learning programs" for high school students but these are not virtual schools as contemplated by this opinion. A website for one of the schools uses Internet resources for some limited lesson presentations and parent communications. See, generally, Westside Community Schools, available at http://www.westside66.org/wcs/site/default.asp. The other program, from the University of Nebraska - Lincoln, offers college preparation independent courses to be used as a part of a regular school or home school program, but the program is longstanding, and should be classified as an accredited independent study program. See University of Nebraska - Lincoln, "Independent Study High School Frequently Asked Questions," found at http://nebraskahs.unl.edu/faq.shtml. See also POMS RS 00205.285 ("Independent study programs are run by local education agencies . . . 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."). Therefore, to the extent that Nebraska offers online classes, these are not virtual school programs that could qualify independently as educational institutions.
Kristi A. S~
Acting Chief Counsel, Region VII
Kevin B. M~
Assistant Regional Counsel