TN 11 (09-10)
PR 08205.007 Colorado
A. PR 10-131 Validity of Online Schooling in Colorado – REPLY
DATE: May 11, 2010
Colorado recognizes public online schools as educational institutions (EI). Absent evidence to the contrary, the single and multi-district online schools listed on the Colorado Department Education (CDE) Unit of Online Learning’s website are EIs in accordance with Colorado law. If the student’s online school is not on the list, you can check the school’s current status by calling 303-866-6897. Colorado law does not specifically provide for nonpublic schools to offer online courses, nor does it prohibit it. Consider an independent or parochial online school to be an EI if it provides a basic academic education and instruction regarding the flag and the Constitution for students enrolled a minimum of 172 days. The adjudicator should follow the instructions in RS 00205.295 and in GN 01010.815 if a student alleges full-time attendance at a public online school in Colorado that does not appear on the list at the CDE site or at an independent or parochial online school that does not meet the above requirements. Any building in which a student takes courses from an independent or parochial online school must comply with health standards (e.g., local building codes, zoning requirements, and fire safety standards). Request a legal precedent opinion if you have reason to question whether a particular structure meets these requirements.
You asked whether Colorado recognizes online schools as educational institutions (“EIs”) within the meaning of section 202(d)(7) of the Social Security Act (“the Act”), 42 U.S.C. § 402(d)(7). If so, you asked us to provide the pertinent requirements; if not, you asked us to provide the state’s basic educational requirements for any school.
The State of Colorado recognizes public online schools as EIs within the meaning of the Act. Colorado does not specifically address whether nonpublic schools may offer online curriculum; however, our view is that nonpublic online schools that satisfy the same requirements established for traditional nonpublic schools qualify as EIs under Colorado law. A home school that primarily uses a nonpublic online school or program to instruct students cannot qualify as an EI under state law, since the home-based education program statute requires a child’s parent or other adult relative designated by a parent to instruct the child.
The Program Operations Manual System (“POMS”) defines an EI as “a school that provides elementary or secondary education . . . as determined under the law of the State or other jurisdiction in which it is located.” POMS RS 00205.200. A draft provision regarding online schools, POMS RS 00205.295, provides that a child is a full-time student if (among other things) “[t]he law of the State in which the student resides recognizes online schools as [EIs,]” and “[t]he online school the student attends meets the requirements of State law in which the student lives.” You requested formal legal opinions on these issues for each state in Region VIII.
Requirements for Child’s Benefits
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)-(7). Entitlement to child’s benefits may continue, however, if (among other things) the child is “a full-time elementary or secondary student and ha[s] not attained the age of 19.” Id. § 402(d)(1).
A full-time elementary or secondary student is an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner in light of the standards and practices of the schools involved. See id. § 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. § 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a); POMS 00205.200 (defining an EI). As noted above, draft POMS RS 00205.295 requires an adjudicator to determine whether the state where a student resides recognizes online schools as EIs, and whether the online school in question is an EI in that state. We note that the draft POMS provisions stands in tension with the Act, which provides that a school’s status is determined under the law of the state where the school is located (not the state where the student resides). See 42 U.S.C. § 402(d)(7)(C)(i). If this reflects a policy decision based on the unique nature of online schools, we recommend a revision of the draft POMS language to include some explanation of this policy choice. Alternatively, we recommend a revision of the POMS to be consistent with the Act.
The State of Colorado recognizes three types of educational entities: public schools (including charter schools), independent or parochial schools, and nonpublic home-based education programs. See Colo. Rev. Stat. Ann. §§ 22-33-104, 22-30.5-103(2), 22-30.5-104.
Public Online Schools
Colorado recognizes public online schools as EIs. Online program “means a full-time on-line education program or school authorized pursuant to [Article 30.7— On-Line Education Programs] that delivers a sequential program of synchronous or asynchronous[ Synchronous instruction “takes place when two or more people are communicating in real time.” With asynchronous instruction, “[t]he teaching takes place at one time and is preserved for the learner to participate in whenever the time is most convenient for him or her.” Deb P~, http://adulted.about.com/b/2009/01/25/synchronous-vs-asynchronous-learning-which-do-you-prefer.htm (last visited March 10, 2010). ] instruction from a teacher to a student primarily through the use of technology via the internet in a virtual or remote setting.” Id. § 22-30.7-102(9) (emphasis added). The single and multi-district online schools listed on the Colorado Department of Education (“CDE”) Unit of Online Learning’s website presumptively meet the state’s online education program requirements. See CDE Unit of Online Learning – Online Programs, http: //www.cde.state.co.us /onlinelearning/ schools.htm (last visited March 10, 2010). Absent evidence to the contrary, the public online schools listed are per se EIs under state law. See POMS RS 00205.250(B)(1). We verified with Della S~, Principle Consultant, Unit of Online Learning, that the website may experience occasional posting delays. Therefore, we recommend that you contact the Colorado Unit of Online Learning at 303-866-6897 to check the current status of a particular public online school.
Students who participate in public online programs pursuant to the provisions of Article 30.7 are deemed to attend school for the required number of hours during each school year. Colo. Rev. Stat. Ann. § 22-33-104(c).
Independent and Parochial Schools
In Colorado, public school attendance is compulsory for children between the ages of six (before August 1) and sixteen, unless the child “is enrolled for a minimum of one hundred seventy two days in an independent or parochial school which provides a basic academic education.” Id. §§ 22-33-104(2)(b), 22-32-116.5(10)(c). A basic academic education “means the sequential program of instruction provided by an independent or parochial school. Such program shall include, but not be limited to, communication skills of reading, writing, and speaking, mathematics, history, civics, literature, and science.” Id. § 22-33-104(2)(b). Additional required curriculum includes information concerning the honor and use of the flag, and instruction on the United States Constitution. See CDE, Colorado Non-Public Schools,http://www.cde.state.co.us/ choice/ nonpublic_law.htm (last visited March 10, 2010) (citing Colo. Rev. Stat. Ann. §§ 22-1-106(1), 108-109).
While Colorado law does not specifically provide that a nonpublic school may offer online curriculum, the state does not prohibit it either. Further, the state specifically recognizes public online schools, indicating general acceptance of online instruction. Therefore, we see no reason to conclude that a nonpublic independent or parochial school providing online instruction would not qualify as an EI, if the school provides instruction for a minimum of 172 days and offers a basic academic education and other required curriculum. Independent and parochial schools must also comply with health standards, and any building being used by these nonpublic schools must meet local building codes, zoning requirements, and fire safety standards. See CDE, Colorado Non-Public Schools,http://www.cde.state.co.us/ choice/ nonpublic_law.htm (last visited March 10, 2010) (citing Colo. Rev. Stat. § 25-1-107(1)(m), repealed and replaced by Colo. Rev. Stat. § 25-1.5-101 (Laws 2003, ch. 57 § 1, eff. July 1, 2003)). The most logical intent of this provision appears to be to ensure the safety of students. Therefore, we interpret this provision to mean that Colorado online students must receive instruction in a building or home that complies with applicable local health and safety regulations. We recommend you request a formal legal opinion should you question whether a particular structure satisfies these requirements.
See Memorandum, Status of Circle Christian Academy as an Educational Institution – Colorado, RCC VIII (Luedemann, E~L~) to RC, SSA, May 1, 1992.
Nonpublic Home-Based Education Programs
A child being instructed at home is also exempt from compulsory public school attendance. Colo. Rev. Stat. Ann § 22-33-104(2)(i). The state’s home-based education program requirements are set forth in POMS RS Den00205.275 (Determining the Educational Institution (EI) Status of a Home School).
A nonpublic home-based education program is “the sequential program of instruction for the education of a child which takes place in a home, [and] which is provided by the child’s parent or by an adult relative of the child designated by the parent . . . . This educational program is not intended to be and does not qualify as a private and nonprofit school.” Id. § 22-33-104.5(a)(2). Due to the restriction that a parent or other adult relative provide instruction, a private online school cannot qualify as a Colorado home-based education program. See Memorandum, Is an Internet High School Based in Georgia an Educational Institution for an Ohio Resident?, RCC V (Calvert/G~) to ARCMOS, SSA, Sept. 8, 2008 (concluding that a specific private online school did not satisfy either state’s home school requirement that a parent primarily direct and provide instruction).
Absent evidence to the contrary, the single and multi-district online education programs listed on the CDE Unit of Online Learning’s website are per se EIs under state law. While Colorado does not specifically address whether an independent or parochial school may offer online enrollment, an independent or parochial online school that provides a basic academic education and instruction regarding the flag and the Constitution for students enrolled a minimum of 172 days should be considered an EI under state law. A home-based education program that primarily uses a nonpublic online school to provide instruction cannot qualify as an EI under Colorado law, however, since the home-based education program law requires that a child’s parent or other adult relative designated by a parent provide instruction.
Donna L. C~
Acting Regional Chief Counsel, Region VIII
Yvette G. K~
Assistant Regional Counsel