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