TN 35 (04-13)

PR 08205.011 Florida

A. PR 13-050 Eligibility for Child’s Insurance Benefits as a Full-Time Elementary or Secondary School Student Based on Courses Taken Through American High School, an Online Entity Located in Florida

DATE: February 28, 2013

1. SYLLABUS

American High School (American) is an online entity located in Hollywood, Florida, that offers a privately accredited online high school and home school college preparatory curriculum for grades 6 through 12.

American is an educational institution under Florida law, therefore it is an educational institution (EI) 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

QUESTION

You asked whether American High School (American), an online entity located in Florida, is an educational institution and whether the beneficiary is in full-time attendance (FTA) for determining whether the beneficiary, an Arkansas resident, qualifies for child’s insurance benefits (CIB) as a full-time secondary school student.

OPINION

Based on the materials submitted, the Social Security Administration (agency) should consider American an educational institution under Florida law. However, the beneficiary is not in FTA in a noncorrespondence course. Therefore, the beneficiary is not a full-time elementary or secondary school student for determining her eligibility for CIB.

BACKGROUND

According to the information provided, Michaela (Beneficiary) receives CIB on the account of her mother, Melanie. Beneficiary’s eighteenth birthday was in February 2013, and she seeks CIB beyond the age of eighteen based on her alleged full-time attendance as a secondary school student at American. 

SSA records indicate Beneficiary resides in Arkansas. Beneficiary indicated in her school-attendance statement that she is home schooled through American, an online entity located in Hollywood, Florida.  Beneficiary also reported she attends American for twenty-five hours per week and expects to graduate in February 2014.  Beneficiary further reported she is not disabled, married, or being paid by an employer to attend school, and has no outstanding warrants for her arrest.

Stephanie, a counselor with American, certified the information Beneficiary provided was correct according to school records. Stephanie also certified that American’s course of study was at least thirteen weeks in duration and that American operates on a yearly basis. Additionally, Stephanie indicated American tracked students’ time and attendance online.  Nikki, a service representative with the Jonesboro, Arkansas district office, also contacted American to obtain additional information and learned American provides students with interactive access to teachers through e-mail, telephone, and Skype.  Additionally, students can interact with each other through messaging and signing into courses.

According to the materials provided and American’s website, American offers a privately accredited According to its website, American is “fully Accredited by leading accreditation agencies, including AdvancED (U.S. Dept of Education approved Accrediting Agency).” American High School, Accreditation (visited Feb. 21, 2013) <http://americanonlinehigh.com/internet-high-school-accreditation.asp>.  online high school and home school college preparatory curriculum for grades 6-12. See American High School, Accreditation (visited Feb. 21, 2013) <http://americanonlinehigh.com/internet-high-school-accreditation.asp>. American’s teachers have advanced degrees and/or credentials in their academic areas; and they perform grading, mentoring, and tutoring and are available via phone for immediate assistance. See American High School, About AHS (visited Feb. 21, 2013) <http://americanonlinehigh.com/online-high-school-about.asp>. 

According to Beneficiary, she scans her homework and assignments and uploads them through American’s website, takes and submits exams through the website, and generally uses e-mail to communicate with her teachers and school administrators.

DISCUSSION

To be eligible for CIB, a beneficiary who is eighteen years or older and not disabled must be a “full-time elementary or secondary school student.” See Social Security Act (Act) § 202(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2012); Unless otherwise noted, all subsequent references to 20 C.F.R. are to the 2012 version.

Program Operations Manual System (POMS) RS 00205.001. To qualify as a “full-time elementary or secondary school student,” a beneficiary must attend an educational institution, i.e., a school that provides elementary or secondary education (twelfth grade or below) as determined under the law of the State in which the school is located. See Act § 202(d)(7)(A), (C)(i), (C)(ii); 20 C.F.R. § 404.367(a), (e); POMS RS 00205.001.A; POMS RS 00205.200.A.  A beneficiary can also meet the requirement of attending an educational institution if he or she receives instruction in elementary or secondary education at home in accordance with a home school law of the State in which he or she resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275.B.

A beneficiary also must attend school full time to qualify as a “full-time elementary or secondary school student.” See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.200.A; POMS RS 00205.300.A.  A beneficiary attending an online school is in FTA if he or she is attending an educational institution and meets both State and Federal standards for full-time attendance. See POMS RS 00205.295.B; POMS RS 00205.300.A.  A beneficiary meets the State standards if the school considers the beneficiary to be full-time based on the school’s standards and practices. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b); POMS RS 00205.300.B; POMS RS 00205.350.C.1. A beneficiary meets the Federal standards if he or she is scheduled to attend school for at least twenty hours per week, enrolled in a noncorrespondence course, and enrolled in a course of study that lasts at least thirteen weeks. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C.

A beneficiary who is home schooled must carry a subject load that is considered full-time for day students under standards and practices set by the State in which he or she resides. See 20 C.F.R. § 404.367(b); POMS RS 00205.275.B.  A home-schooled beneficiary must also meet the Federal standards for FTA. See POMS RS 00205.275.B. If a beneficiary is attending an online school, the beneficiary may be a full-time student if he or she meets the Federal standards for full-time attendance and “[t]he online school is consistent with the law of the state in which the online school is located.”  POMS RS 00205.295.B

According to the information we received, American is located in Hollywood, Florida. Therefore, we look to Florida law to determine whether American is an educational institution.  Florida requires regular school attendance for children ages six through sixteen. See Fla. Stat. Ann. § 1003.21(1) (2012). Unless otherwise noted, all subsequent references to West’s Florida Statutes Annotated are to the 2012 version.  A child is in regular school attendance within the intent of Fla. Stat. Ann. § 1003.21 if he or she attends a public school; a parochial, religious, or denominational school; a private school supported in whole or in part by tuition charges or by endowments or gifts; a home education program; or a private tutoring program. See Fla. Stat. Ann. § 1003.01(13).  Florida law defines a private school as a non-public school that provides instructional services that meet the intent of Fla. Stat. Ann. § 1003.01(13). See Fla. Stat. Ann. §§ 1002.01(2), 1002.42(1).  Attendance at a private school satisfies the attendance requirements of Fla. Stat. Ann. §§ 1003.01(13) and 1003.21(1). See Fla. Stat. Ann. § 1002.42(7).

Florida statutes do not regulate the establishment of private schools in Florida. See Fla. Stat. Ann. § 1002.42; State v. M.M., 407 So. 2d 987, 990 (Fla. Dist. Ct. App. 1981). However, private schools in Florida must register and file an annual survey with the Florida Department of Education. See Fla. Stat. Ann. § 1002.42(2)(b); Florida Department of Education, Office of Independent Education & Parental Choice, General Requirements for Private Schools  (visited Feb. 21, 2013) <http://www.floridaschoolchoice.org/Information/Private_Schools/general_requirements.asp>; Florida Department of Education, Office of Independent Education & Parental Choice, Private School Annual Survey (visited Feb. 21, 2013) <http://www.floridaschoolchoice.org/Information/Private_Schools/annual_survey_info.asp>. Private schools in Florida also must keep attendance records to demonstrate compliance with Florida’s compulsory attendance requirements and must meet certain health and safety requirements. See Fla. Stat. Ann. §§ 1002.42(4)-(6), 1003.23(2); Florida Department of Education, Office of Independent Education & Parental Choice, General Requirements for Private Schools (visited Feb. 21, 2013) <http://www.floridaschoolchoice.org/Information/Private_Schools/general_requirements.asp>. 

The annual survey must include a notarized statement from the owner of the private school certifying that each of the private school’s employees has been fingerprinted and undergone a criminal background check. See Fla. Stat. Ann. § 1002.42(2)(b), (c). The Florida Department of Education uses the information provided by the annual survey to organize, maintain, and update a database of private schools in Florida. See Fla. Stat. Ann. § 1002.42(2)(a), (b).  The Florida Department of Education does not use the annual survey or database to “accredit” private schools; rather, the database of private schools exists solely as a “service to the public, and not to regulate, control, approve, or accredit private educational institutions.” Fla. Stat. Ann. § 1002.42(2)(h). The public may access the database of private schools via the Florida Department of Education’s website. See Florida Department of Education, Office of Independent Education & Parental Choice, Florida Private Schools Directory (visited Feb. 21, 2013) <http://www.floridaschoolchoice.org/Information/PrivateSchoolDirectory>.   The website states the “[i]nformation contained in this database was submitted by private schools as part of the annual survey requirement found in section 1002.42(2)(b)” and reiterates that “inclusion of a school’s information in the database does not imply approval or accreditation by the Department of Education.” Florida Department of Education, Office of Independent Education & Parental Choice, Private School Information for Parents (visited Feb. 21, 2013) <http://www.floridaschoolchoice.org/Information/Private_Schools/default.asp?whichView=parent>; see Florida Department of Education, Office of Independent Education & Parental Choice, Private School Accreditation (visited Feb. 21, 2013) <http://www.floridaschoolchoice.org/Information/Private_Schools/accreditation.asp>.

According to American’s website, the school is registered with the Florida Department of Education and is recognized as a “degree granting institution,” which issues high school diplomas rather than GEDs. See American High School, Accreditation (visited Feb. 21 2013) <http://americanonlinehigh.com/internet-high-school-accreditation.asp>. Additionally, American is listed in the Florida Private Schools Directory, demonstrating American has complied with the requirements of the preceding paragraph. See Florida Department of Education, Office of Independent Education & Parental Choice, Florida Private Schools Directory (visited Feb. 21, 2013) <http://www.floridaschoolchoice.org/Information/PrivateSchoolDirectory/Default.aspx>.  American charges tuition, American High School, Financial Aid (last visited Feb. 21, 2013) <http://americanonlinehigh.com/financial-aid.asp>. making it supported “in whole or in part” by tuition charges. See Fla. Stat. Ann. § 1003.01(13)(c). Therefore, we believe American is an educational institution under Florida law for determining whether Beneficiary is eligible for CIB as a full-time secondary school student. See 20 C.F.R. § 404.367(a); POMS PR 07905.011; POMS PR 08205.011

However, the information provided indicates Beneficiary is not in “full-time attendance in a day or evening noncorrespondence course” as required by 20 C.F.R. § 404.367(b). See POMS RS 00205.300.C (stating that to meet Federal full-time attendance standards, the individual must be “[e]nrolled in a course that is not a correspondence course”). “Generally, a student is not in full-time attendance (FTA) based on correspondence school courses even if the correspondence school meets the definition of an [educational institution].”  POMS RS 00205.330.B.  The agency also emphasized in 1996 that correspondence courses were insufficient to satisfy the full-time attendance requirements of the Act and regulations.  See When You Are a Full-Time Elementary or Secondary School Student, 61 Fed. Reg. 38,361, 38,361-62 (July 24, 1996). To accommodate students who participate in alterative education methods, SSA revised 20 C.F.R. § 404.367 to include students enrolled in home schooling or independent study programs authorized by State (or other jurisdiction) laws. In providing basic background information regarding the CIB program, SSA noted, in part, Congress’s belief that a child over age eighteen who is attending school was as dependent as a child under eighteen, and it was unrealistic to stop CIB at age eighteen. See 61 Fed. Reg. at 38,361.  SSA interpreted Congress’s statement to mean “full-time students attending class are less likely to be able to support themselves through employment than are part-time or correspondence students.” Id. See id. at 38,362. However, SSA made clear that it would “continue to exclude from eligibility those individuals who are enrolled solely in correspondence courses. We do not believe that such courses satisfy the definition of an elementary or secondary school in the Act. . . .” Id. 

The regulations and POMS do not appear to define “noncorrespondence course” or “correspondence course.” However, the POMS defines “correspondence school” as a “school that teaches by mailing lessons and exercises to the student.  Upon completion, the student returns the exercises to the school for grading.”  POMS RS 00205.330.A. “Although the definition of ‘correspondence school’ refers to submitting materials by mail, we believe that submitting materials over the internet constitutes merely a difference in methodology rather than substance.”  POMS PR 08005.048, PR 04-329 (July 19, 2004).

The information available indicates Beneficiary’s studies through American are correspondence courses. Beneficiary reported she is enrolled as a home school student with American. According to American personnel, students register and receive materials online. American offers self-paced web-based interactive courses, including optional live sessions and live chat with teachers. If a student has a question regarding coursework, he or she may submit questions via email, chat, or telephone.  According to Beneficiary, she attends American for twenty-five hours per week and completes all coursework through the school’s website.  Beneficiary generally communicates with her instructors and school administrators through email, as needed, and she did not indicate she uses either video chat or the telephone. Thus, the available information indicates Beneficiary’s studies through American were correspondence courses, more akin to sending course materials, student work, and teacher grading back and forth by mail than to interactive classroom work that happens to occur on line.  Therefore, Beneficiary does not satisfy the FTA requirements of 20 C.F.R. § 404.367(b). We note Beneficiary indicated she was in a home school program. Because agency records and Beneficiary provided an Arkansas mailing address for her, we do not offer an opinion on whether Beneficiary can qualify as a home school student under the laws of Arkansas, the State where she resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275.B. If the field office needs help determining if Beneficiary’s situation qualified as home schooling, we recommend you refer the matter to your counterpart in Region VI.  Your counterpart can obtain assistance from the Office of the Regional Chief Counsel in Dallas, as appropriate.

CONCLUSION

Although American is an educational institution under Florida law, Beneficiary does not meet the FTA requirements because her studies at American are correspondence courses. Therefore, Beneficiary’s participation in American’s program does not qualify her as a full-time elementary or secondary school student for the purposes of determining her eligibility for CIB.  We do not offer an opinion here about whether Beneficiary would qualify as a home-schooling student under Arkansas law.  

Very truly yours,

Mary Ann Sloan
Regional Chief Counsel

By_________

Joseph P. Palermo
Assistant Regional Counsel

B. PR 12-037 State Law Requirements for an Online Educational Institution – The Southern Baptist Academy, NH Carolyn, SSN ~ (C1 & C2), Brianna and Amy , Students – REPLY

DATE: December 23, 2011

1. SYLLABUS

The Southern Baptist Academy online program offers high school courses via the Internet. There is conflicting evidence regarding where the Southern Baptist Academy is located (i.e. Florida, Texas, or Pennsylvania). To be an educational institution (EI) for SSA purposes, a school must provide elementary or secondary education under the law of the state or other jurisdiction in which it is located. SSA addressed the state laws of Florida, Texas, and Pennsylvania and determined that the Southern Baptist Academy is not an EI for SSA purposes under the Florida, Texas, or Pennsylvania law.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether The Southern Baptist Academy, which offers online high school courses via the Internet (http:/thesouthernbaptistacademy.org/), meets the definition of an educational institution under the Social Security Act (Act). 1 We believe that The Southern Baptist Academy online program is not an educational institution under the Act, and therefore, Brianna and Amy’s entitlements to child’s insurance benefits on the number holder’s account stopped once they reached 18 years of age.

BACKGROUND

The facts indicate that in December 1994, Brianna and Amy became entitled to child’s insurance benefits. Both Brianna and Amy reside in Arkansas. Brianna and Amy turned age 18 in December 2010, after which the agency terminated their child’s insurance benefits. Prior to turning age 18, Brianna and Amy completed SSA Form 1372, Student’s Statement Regarding School Attendance. Each stated that she had been attending The Southern Baptist Academy, based in Philadelphia, Pennsylvania, since September 8, 2009; that she was scheduled to attend classes for 900 hours a year, which averaged 25 hours per week; that her current school year would end on June 17, 2011; and that she expected to graduate in June 2011.

The Southern Baptist Academy registrar certified that the information Brianna and Amy provided on the SSA Form 1372 was correct. The registrar also stated that the school’s course of study was at least 13 weeks in duration. Contrary to Brianna and Amy’s statement that The Southern Baptist Academy is based in Pennsylvania, however, the registrar sent the agency a letter on October 6, 2010, stating that the school is registered in Florida. The Southern Baptist Academy website provides conflicting statements regarding its location. On one page the website states, “The Southern Baptist Academy is an independent private Christian K-12 online homeschool program that is registered as a private school by the Texas Department of Education.” 2 (http://thesouthernbaptistacademy.org/accreditation.php) Elsewhere, however, the website states, “The Southern Baptist Academy is accredited by the National Association of Private Schools Accreditation Alliance and is registered with the Florida Department of Education.” (http://thesouthernbaptistacademy.org/faq.php#Is_the_Academy_accredited or_Licensed) Nevertheless, all addresses directing contact with the school are in Philadelphia, Pennsylvania. 3 (http://thesouthernbaptistacademy.org/faq.php)

The Sherwood, Arkansas, Field Office contacted the Florida Board of Education to ask whether The Southern Baptist Academy is registered in Florida. The Florida Board of Education stated that the school appears in their directory as located in Florida, but they did not have any information about the school operating as an online educational entity. 4 The Florida Board of Education indicated that it was possible that The Southern Baptist Academy operates an online school because the school can determine its own method of instruction. 5

DISCUSSION

The Act provides for the payment of child’s insurance benefits to certain applicants over the age of 18 who are full-time elementary or secondary school (educational institution) students. 6 See 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5); POMS RS 00205.001(A). Under the Act, an educational institution is a school that provides elementary or secondary education, as determined under the law of the state or other jurisdiction in which it is located. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.300.

Under the regulations, in order for a child to be eligible for child’s insurance benefits, she must attend a school that provides elementary or secondary education as determined under the law of the state in which the school is located. 7 See 20 C.F.R. § 404.367(a). Participation in the following programs also meets the requirements of 20 C.F.R. § 404.367(a): 1) a student is instructed in secondary education at home in accordance with the home school law of the State or other jurisdiction in which she resides 8 ; or 2) a student is a in an independent study secondary education program in accordance with the law of the State or other jurisdiction in which the student resides and that is administered by the local school or school district/jurisdiction 9 . 20 C.F.R. § 404.367(a)(1), (2). Accordingly, a student may meet the requirements set out by 20 C.F.R. § 404.367(a) if either the school itself is deemed an educational institution in the state in which it is located or the student’s curriculum qualifies under the law of the state in which the student resides.

In addition to meeting the requirements of 20 C.F.R. § 404.367(a), the student must be in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and carry a subject load that is considered full-time for day students under the institution’s standards and practices. 20 C.F.R. § 404.367(b). If the student is enrolled in the home schooling program discussed in 20 C.F.R. § 404.367(a)(1), the student must be carrying a subject load which is considered full-time for day students under standards and practices set by the state in which she resides. 20 C.F.R. § 404.367(b). Finally, the student’s scheduled attendance must be at least 20 hours per week, unless the school attended does not schedule at least 20 hours per week and going to that particular school is the student’s only reasonable alternative or the student’s medical condition prevents her from having scheduled attendance of at least 20 hours per week. 20 C.F.R. § 404.367(c)(1), (2).

The Southern Baptist Academy is not an educational institution because it does not provide elementary or secondary education, as determined under the laws of the State in which it is located. 20 C.F.R. § 404.367(a).

We first address the question of whether The Southern Baptist Academy qualifies as an educational institution under the law of the state where it is located. 20 C.F.R. § 404.367(a). There is conflicting evidence regarding where The Southern Baptist Academy is located. Thus, we will address the state laws of Florida, Texas, and Pennsylvania because the regulations require us to consider the state laws where the school is located. 10

Florida

Florida requires regular school attendance for children ages six through sixteen. Fla. Stat. § 1003.21 (2011). A child is in regular school attendance if she attends a public school, a parochial school, a private school, home education, or private tutoring. Fla. Stat. § 1003.01. Florida law defines a private school as a non-public school that provides instructional services and is supported in whole or in part by tuition charges, endowments, or gifts. See Florida Stat. §§ 1002.01, 1003.01(2), 13(c). The Southern Baptist Academy is a private school, as it is operated through the tuition of its students by a nonprofit organization, Learning by Grace, Inc. 11

There is no Florida statutory authority regulating the establishment of private schools in Florida. See State v. M.M., 407 So.2d 987 (Fla. 1981). However, a private school must file an annual survey form with the Florida Department of Education to be registered in the state of Florida. Fla. Stat. § 1002.42. This annual survey form certifies that each of the private schools’ employees are fingerprinted and undergo a criminal background check. See Florida Stat. § 1002.42. The Florida Department of Education does not use this survey form to “accredit” a private school; rather the Florida Department of Education’s database of private schools exists solely as a “service to the public, and not to regulate, control, approve, or accredit private educational institutions.” Florida Stat. § 1002.42(2)(h).

As of November 10, 2011, The Southern Baptist Academy had not filed its annual survey form with the Florida Department of Education for the 2011-2012 school year and was not included in the department’s Private School Database. Therefore, Florida law does not consider The Southern Baptist Academy a private school and Brianna and Amy are not in regular school attendance, as Florida law defines.

Texas

Texas requires compulsory school attendance for children ages six to eighteen. Tex. Educ. Code Ann. § 25.085. However, a child is exempt from the requirements of compulsory school attendance if the child attends a private or parochial school that includes in its course a study of good citizenship. Tex. Educ. Code Ann. § 25.086. There is no evidence that the Southern Baptist Academy has a physical location in Texas. The Southern Baptist Academy lists its degree requirements on its website, but does not include a course in good citizenship. (http://www.thesouthernbaptistacademy.org/diplomarequire.php) Thus, The Southern Baptist Academy does not satisfy the minimum requirements for either a private or parochial school in the state of Texas.

Pennsylvania

Pennsylvania requires compulsory school attendance for children ages eight through seventeen. 24 Pa. Cons. Stat. Ann. §§ 13-1326, 13-1327. A child who attends a private school can satisfy the compulsory school attendance requirement in one of two ways. Under the first exception, the child satisfies the compulsory school attendance requirement if she is enrolled in a day school operated by a bona fide church or other religious body and that school provides a minimum of 180 days of instruction or 900 hours per year of instruction at the elementary level or 990 hours per year of instruction at the secondary level. 24 Pa. Cons. Stat. Ann. § 13-1327. Under the second exception, the child satisfies the compulsory school attendance requirement if she is enrolled in a day or boarding school accredited by an accrediting association approved by the State Board of Education. Id.

The Southern Baptist Academy does not satisfy the first exception because it is operated by a non-profit corporation, not a bona fide church or other religious body. The school also only requires 900 hours per year of instruction at the secondary level, falling short of the 990 hours that Pennsylvania law requires. Finally, the school does not have a minimum number of days that the child must attend. Thus, the school does not satisfy the first exception.

The Southern Baptist Academy also does not satisfy the second exception because it is not listed as a Licensed/Registered School on the Pennsylvania Department of Education website. (http://www.education.state.pa.us/portal/server.pt/community/list_of_schools/7422) In addition, the Pennsylvania Board of Education has not approved the National Association of Private Schools Accreditation Alliance, the organization that accredits The Southern Baptist Academy, as an approved accrediting agency. Id. Regardless, even if The Southern Baptist Academy were registered in Pennsylvania, Pennsylvania considers internet schools to be the equivalent of correspondence schools. See 24 Pa. Cons. Stat. Ann. § 6503(a). The agency recognizes that, generally, a student is not in full-time attendance based on taking correspondence school classes, even if the correspondence school meets the definition of an educational institution. See POMS RS 00205.330(B). Thus, Pennsylvania does not recognize The Southern Baptist Academy as a private school that satisfies the state’s compulsory school attendance requirement.

The Southern Baptist Academy does not instruct Brianna and Amy in secondary education at home in accordance with Arkansas home school law. 20 C.F.R. § 404.367(a)(1).

Brianna and Amy reside in Arkansas. Thus, we next consider whether The Southern Baptist Academy provides secondary education at home to Brianna and Amy in accordance with Arkansas home school law. 20 C.F.R. § 404.367(a)(1). While Arkansas recognizes a home school program as an educational institution that can provide secondary education, we conclude that Arkansas would not recognize The Southern Baptist Academy as a home school program. Under Arkansas law, parents and guardians may teach their children in a home school program. See Ark. Code Ann. §§ 6-15-501, 6-15-503, 6-15-504. Because The Southern Baptist Academy is not a parent or guardian of the students enrolled in its program, however, it fails as a threshold matter to qualify as a home school program under Arkansas law. See Ark. Code Ann. § 6-15-501. Furthermore, The Southern Baptist Academy does not qualify as a home school program under Arkansas law because it does not meet Arkansas statutory reporting and testing requirements. See Ark. Code Ann. § 6-15-503(a)(1). Under Arkansas law, parents or guardians desiring to provide a home school for their children must give written notice to the superintendent of their local school district of their intent to provide a home school for their children and sign a waiver acknowledging that the State of Arkansas is not liable for the education of their children during the time that the parents choose to home school. Ark. Code Ann. §§ 6-15-503, 6-15-504. There is no evidence that anyone gave written notice to the superintendent of Brianna and Amy’s local school district regarding their attending a home school program. In addition, to qualify as a home school program, each student must take a standardized achievement test that the Arkansas Department of Education administers each year. Ark. Code Ann. § 6-15-504(b)(1)(A). There is also no evidence that Brianna or Amy have taken or will take the Arkansas Department of Education standardized achievement test. Thus, The Southern Baptist Academy does not qualify as a home school program under Arkansas law.

The Southern Baptist Academy does not provide Brianna and Amy an independent study secondary education program in accordance with Arkansas law. 20 C.F.R. § 404.367(a)(2).

We next address the issue of whether The Southern Baptist Academy qualifies as an independent study program 12 under Arkansas law. 20 C.F.R. § 404.367(a)(2). The regulations define an independent study program as an elementary or secondary education program in accordance with the law of the state or other jurisdiction in which the student resides which the local school or school district administers. 20 C.F.R. § 404.367(a)(2). The POMS further define an independent study program as a program that local education agencies, such as high schools or school districts, run in accordance with specific state law requirements, where the credits earned count toward high school graduation. POMS RS 00205.285(A). Independent study programs involve periodic teacher contact, direction, and testing on campus, with the student making academic progress generally through independent study at home. Id.

In Arkansas, the Department of Education oversees and coordinates the implementation of distance learning, 13 which conducts independent study programs, in elementary and secondary public schools and promulgates rules and regulations to establish appropriate adult supervision in distance-learning courses. See Ark. Code Ann. §§ 6-47-201(a)-(b), 6-47-302(a). The Department of Education must approve all distance learning courses, including out-of-state course providers, before an educational institution may import those courses through distance learning. See Ark. Code Ann. §§ 6-47-201(c)(1), 6-47-302(b)(1); see also RGDL, Rule 4.01. 14 The Department of Education requires that all distance-learning courses have an appropriately licensed or approved primary instructor; 15 that an adult facilitator 16 must be present when student achievement assessments used to determine a student’s final grade are administered in a distance-learning course; and that all distance learning courses must comply with the Arkansas Standards for Accreditation. See RGDL Rules 4.02, 4.04, 4.05. The only representation that The Southern Baptist Academy program makes is that it is accredited by the National Association of Private Schools Accreditation Alliance. There is no evidence that the Arkansas Department of Education has approved The Southern Baptist Academy courses; that The Southern Baptist Academy has appropriately licensed or approved primary instructors; that The Southern Baptist Academy has an adult facilitator during student achievement assessments; or that The Southern Baptist Academy online courses comply with the Arkansas Standards for Accreditation. Thus, The Southern Baptist Academy does not qualify as an independent study program under Arkansas law.

Brianna and Amy are not in full-time attendance at The Southern Baptist Academy. 20 C.F.R. § 404.367(b)-(c).

Next, we address the issue of whether Brianna and Amy are full-time students at The Southern Baptist Academy. 20 C.F.R. § 404.367(b)-(c). As previously noted, in order to be eligible to receive child’s insurance benefits, an applicant who is 18 years of age but has not attained age 19 must be a full-time student, based on the agency’s regulatory standards, at an educational institution. See 42 U.S.C. 402(d)(1)(B); POMS RS 00205.285. The agency considers a student to be a full-time student if she attends a school that provides a secondary education under the law of the state in which the school is located and if the student: (1) is in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; (2) carries a subject load considered full-time for day students under the institution’s standards and practices; and (3) attends school at least 20 hours a week. See 20 C.F.R. § 404.367(a), (b), (c); POMS RS 00205.300(C). The Southern Baptist Academy requires its students to complete 900 hours within 36 weeks, an average of 25 hours a week. The school records the amount of time that a student spends online in courses, as well as the offline time the student spends in “Study Hall.” In addition, the school permits the student to submit a log of up to 110 hours for participation in “Joy Directed Activities.”

However, there is no specific time that a student must attend school each day or each week, as each student is permitted to work at her own pace. (http://thesouthernbaptistacademy.org/faq.php#Details_flexible_schedule).

Although Brianna and Amy stated that they must average 25 hours of classes a week, the school does not have any weekly attendance requirement. No documentation shows that Brianna and Amy have attended school for at least 20 hours a week. Thus, the agency cannot conclude that Brianna and Amy are in full-time attendance at The Southern Baptist Academy.

CONCLUSION

In conclusion, The Southern Baptist Academy is not an educational institution under Florida, Texas, or Pennsylvania. Brianna and Amy were not enrolled in home school or an independent study program under Arkansas law. We also cannot conclude that Brianna and Amy are full-time students at The Southern Baptist Academy. Therefore, Brianna and Amy are not full-time students at an educational institution, and their entitlement to child’s insurance benefits on the number holder’s account stopped once they turned 18.

Michael McGaughran
Regional Chief Counsel

By_________

James D. Sides
Assistant Regional Counsel

C. PR 12-023 State Law Requirements for an Online Educational Institution – Continental Academy (NH: Andres SSN ~) – REPLY

DATE: November 30, 2011

1. SYLLABUS

Continental Academy is a distance education high school located in Miramar, Florida. Continental Academy is compliant with the only Florida law governing private schools and qualifies as an educational institution under Florida law. Although Continental Academy is an educational institution for SSA purposes, the student’s attendance in correspondence courses precludes her status as a full-time student.

2. OPINION

The purpose of this memorandum is to respond to your request for an opinion on whether an internet-based school qualifies as an educational institution under the Social Security Act (Act). You also asked whether a student attending an internet-based school qualifies as a full-time student of a secondary school under Texas law. In our opinion, the internet-based school qualifies as an educational institution under the Act. However, we believe that the student does not qualify as a full-time student of a secondary school taking noncorrespondence courses under the relevant Social Security regulations. Thus, we believe the student would not be eligible to receive continued child’s insurance benefits on the number holder’s account.

BACKGROUND

As we understand the facts, Z~ resides in Texas. She began receiving childhood benefits on Andres’ (number holder) record in June 2003. In June 2011, when she attained the age of 18, Z~’s eligibility for child’s insurance benefits ended. In order to obtain continued child’s insurance benefits on the number holder’s account after attaining age 18, Z~ submitted Form SSA-1372, Student’s Statement Regarding School Attendance (Form SSA-1372), in which she indicated that she was currently a full-time student at Continental Academy, an internet-based school based in Miramar, Florida. Z~ reported that, as of January 2011, she was enrolled 20 hours a week in a “self-pace” course of study at Continental Academy, which she completed via distance learning, and that she expected to graduate in June 2013.17

The Social Security Administration (agency) contacted Continental Academy and spoke with Chan, M.S., the Director of Guidance. Chan stated that Continental Academy offers courses in mathematics, English, science, and electives, similar to those offered in a traditional high school curriculum. Chan indicated that Continental Academy has no daily or weekly attendance requirements and does not track the time a student spent online or engaged in coursework. Further, Continental Academy has no web-based interactive courses or classes where students interact with teachers or classmates. Rather, if a student has questions regarding coursework, he or she submits them via email or calls a toll-free number for assistance. Chan stated that, once enrolled, it is entirely up to the student to complete the required coursework.

Chan also directed the agency to view Continental Academy’s website for more information. Continental Academy’s website offers two online distance-learning programs: the Pioneering Alternative Career-centric Education (P.A.C.E.) Program; and the Online Utility to Raise Educational Achievement for College-bound High Schoolers (O.U.T.R.E.A.C.H.) Program.18 Neither Z~ nor Chan indicated in which online program Z~ was currently enrolled. Each online program listed mandatory courses in Language Arts, Mathematics, Science, Social Studies, U.S. Government, Fine Arts, and Practical Arts. Continental Academy also offers the Secondary Education for Alternative Learners (S.E.A.L.) program, which offers courses identical to those offered in the O.U.T.R.E.A.C.H. program, but allows students to receive coursework on a CD ROM or in printed format. 19

Finally, Chan completed a Certification By School Official, in which he certified that Continental Academy’s course of study lasted at least 13 weeks in duration. In this document, Chan also certified under penalty of perjury that Z~’s statement that she attended school for 20 hours per week was “correct according to the school’s records.”

DISCUSSION

The Act provides for the payment of child’s insurance benefits to certain applicants over the age of 18 who are full-time elementary or secondary school students at an educational institution.20 See 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5); POMS RS 00205.001(A). Under the Act, an educational institutionis a school that provides elementary or secondary education, as determined under the law of the state or other jurisdiction in which it is located. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.300.21

Under the regulations, in order for a child to be eligible for child’s insurance benefits, she must attend a school that provides secondary education as determined under the law of the state in which the school is located. See 20 C.F.R. § 404.367(a). Participation in the following programs also meets the requirements of 20 C.F.R. § 404.367(a): 1) a student is instructed in secondary education at home in accordance with the home school law of the State or other jurisdiction in which she resides; or 2) a student is in an independent study secondary education program in accordance with the law of the State or other jurisdiction in which the student resides, which is administered by the local school or school district/jurisdiction. 20 C.F.R. § 404.367(a)(1), (2). Accordingly, a student may meet the requirements set out by 20 C.F.R. § 404.367(a) if either the school itself is deemed an educational institution in the state in which it is located or the student’s curriculum qualifies under the law of the state in which the student resides.

In addition to meeting the requirements of 20 C.F.R. § 404.367(a), the student must be in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and carry a subject load that is considered full-time for day students under the institution’s standards and practices. 20 C.F.R. § 404.367(b). If the student is enrolled in the home schooling program discussed in 20 C.F.R. § 404.367(a)(1), the student must be carrying a subject load that is considered full-time for day students under standards and practices set by the state in which she resides. 20 C.F.R. § 404.367(b). Finally, the student’s scheduled attendance must be at least 20 hours per week, unless the school attended does not schedule at least 20 hours per week and going to that particular school is the student’s only reasonable alternative or the student’s medical condition prevents her from having scheduled attendance of at least 20 hours per week. 20 C.F.R. § 404.367(c)(1), (2). Accordingly, to be entitled to a continuation of child’s insurance benefits, Z~ must show: 1) that Continental Academy is either an educational institution under Florida law, where the school is located, or provides a home school or independent study program that qualifies as such under Texas law, where Z~ resides; 2) that she is in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and carrying a subject load that is considered full-time for day students under Continental Academy’s standards and practices or, if home school provisions apply, considered full-time for Texas students; and 3) she must show that she either attends school at least 20 hours per week or meets one of the regulatory exceptions.

We first turn to the requirements of 20 C.F.R. § 404.367(a), and look to whether or not Continental Academy qualifies as an educational institution. Because Continental Academy is located in Miramar, Florida, Continental Academy may be considered an educational institution if it qualifies as one under Florida law. 20 C.F.R. § 404.367(a).

Florida requires regular school attendance for children ages six through sixteen. Fla. Stat. § 1003.21 (2011). A child is in regular school attendance if she attends a public school, a parochial school, a private school, home educations, or private tutoring. Fla. Stat. § 1003.01 (2011). Florida law defines a private school as a non-public school that provides instructional services and is supported in whole or in part by tuition charges, endowments, or gifts. See Florida Stat. §§ 1002.01, 1003.01(2), 13(c). Continental Academy’s website indicates that it charges tuition, making it supported “in whole or in part” by tuition charges. 22 Thus, Continental Academy is a private, rather than public, school.

There is no Florida statutory authority regulating the establishment of private schools in Florida. See State v. M.M., 407 So.2d 987 (Fla. 1981). However, a private school must file an annual survey form with the Florida Department of Education to be registered in the state of Florida. Fla. Stat. § 1002.42 (2011). This annual survey form certifies that each of the private schools’ employees are fingerprinted and undergo a criminal background check. See Florida Stat. Ann. § 1002.42. The Florida Department of Education does not use this survey form to “accredit” a private school; rather the Florida Department of Education’s database of private schools exists solely as a “service to the public, and not to regulate, control, approve, or accredit private educational institutions.” Florida Stat. § 1002.42(2)(h).

On November 9, 2011, we contacted the Florida Board of Education at 1-800-447-1636. A private school specialist stated that, if a school is currently listed in the Florida Department of Education’s online directory, that school has properly submitted its annual survey. Continental Academy is listed in the Florida Department of Education’s online directory, found at http://www.floridaschoolchoice.org/Information/PrivateSchoolDirectory/. Accordingly, Continental Academy is compliant with the only Florida law governing private schools. As such, Continental Academy qualifies as an educational institution under Florida law. 20 C.F.R. § 404.367(a).23

Turning to the requirements of 20 C.F.R. § 404.367(b), Z~ must show that she is in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and carries a subject load that is considered full-time for day students under the institution’s standards and practices. 20 C.F.R. § 404.367(b). Here, Z~ cannot meet the requirements of 20 C.F.R. § 404.367(b) because she cannot show that she attends a noncorrespondence course. Rather, the evidence indicates that Z~ engages in correspondence courses, which preclude her from status as a full-time student under the Act.

In 1996, the agency revised 20 C.F.R. § 404.367 to provide for home schooling and independent study programs considered equivalent to traditional schools. See 61 Fed. Reg. 38361, 38361 (Jul. 24, 1996). In particular, the agency noted Congress’s belief that “full-time students attending class are less likely to be able to support themselves through employment than are part-time or correspondence students.” See id. Thus, the agency desired to accommodate those students who participated in full-time home schooling or independent study programs when the student lived in a state that recognized those programs and when the program was not a correspondence course. See id. The agency specifically noted that “home schooling is an educational program in which the student is generally taught within the home by a parent or teacher,” while an independent study program is one authorized by the school district which houses the school the student would attend. See id. at 38362. However, the agency made clear that it would “continue to exclude from eligibility those individuals who are enrolled solely in correspondence courses. We do not believe that such courses satisfy the definition of an elementary or secondary school in the Act.” See id.

The regulations do not define “noncorrespondence course,” “correspondence course,” or “correspondence school.” The POMS defines correspondence school as “a school that teaches by mailing lessons and exercises to the student. Upon completion, the student returns the exercises to the school for grading.” See POMS RS 00205.330. As we noted in a 2003 opinion, “although the definition of ‘correspondence school,’ refers to submitting materials by mail, we believe that submitting materials over the internet constitutes merely a difference in methodology rather than substance.” See OGC Opinion 03-1254, Texas Internet Online Schooling – REPLY, p. 3; contrast OGC Opinion 06-2014, Oklahoma State Law Requirements for Internet Online Schooling – REPLY, pp. 3-4 (distinguishing 2003 opinion when the student interacted with her instructor through a “white board” function, which allowed the student to watch her instructor complete problems and answers).

Here, Continental Academy has no web-based interactive courses or classes where students interact with teachers or classmates. Rather, if a student has questions regarding coursework, he or she submits them via email or calls a toll-free number for assistance. Thus, unlike the student in our 2006 opinion, Z~ does not engage in interactive coursework online. Compare OGC Opinion 06-2014, Oklahoma State Law Requirements for Internet Online Schooling – REPLY, pp. 3-4.

Further, Continental Academy’s program descriptions support our conclusion that Z~’s coursework at Continental Academy amounts to electronic correspondence courses. As stated above, Continental Academy offers two online educational programs: the P.A.C.E. program; and the O.U.T.R.E.A.C.H. program. Because Z~ stated she completes her coursework online, we know that she is enrolled in one of these two programs. However, Continental Academy also offers a third program, the S.E.A.L. program, which provides the same curriculum “for students who want to have their study materials mailed and want to study in a traditional paper and pencil homeschooling method.” Accordingly, the only apparent difference between each of Continental Academy’s three programs is that P.A.C.E. and O.U.T.R.E.A.C.H. students receive their coursework online, and S.E.A.L. students receive their coursework on a CD ROM or in printed format. Accordingly, there is no discernable difference between Z~’s online coursework and traditional correspondence courses.

As such, the evidence provided indicates that Z~’s classes at Continental Academy amount to correspondence courses. Thus, she cannot meet the requirements of 20 C.F.R. § 404.367(b), which require attendance in a noncorrespondence course. Finally, we look to whether Z~ is a full-time student because she attends school at least 20 hours a week. 20 C.F.R. § 404.367(c). Chan indicated that Continental Academy has no daily or weekly attendance requirements and that they do not track the time any student spends online or engages in coursework. Further, Continental Academy has no web-based interactive courses or classes where students interact with teachers or classmates. Despite the fact that Continental Academy does not track or require students’ attendance, Chan certified under penalty of perjury in his Certification by School Official that Z~’s statement regarding her weekly attendance was “correct according to the school’s records.” We understand that the agency’s POMS provisions suggest that we credit an educator’s statement regarding attendance if it indicates attendance is more than 20 hours per week. See generally POMS RS 00205.595F (to establish student entitlement at an online school, one must request that the school verify full time attendance and, once verified, the question of payment turns only on whether precedent recognizes the school as an educational institution). Thus, the agency’s POMS provision authorizes wholesale acceptance of an educator’s statement, and we have found no statute, regulation, or policy provision requiring more evidence than this statement. Thus, the evidence provided indicates that Z~ attends classes at least 20 hours per week.

CONCLUSION

In summary, Z~ is not entitled to child’s benefits on the number holder’s account. While Florida law establishes that Continental Academy is an “educational institution” for the purposes of 20 C.F.R. § 404.367(a), Z~ has not shown that she is engaged in noncorrespondence courses, as required by 20 C.F.R. § 404.367(b). Rather, the evidence indicates that the classes that Z~ takes at Continental Academy amount to correspondence courses. Thus, despite the fact that Chan certified that Z~ attends school 20 hours a week, in accordance with 20 C.F.R. § 404.367(c), we conclude that Z~ does not qualify as a full-time student and, as such, she is not eligible to receive continued child’s insurance benefits on the number holder’s account.

Michael McGaughran
Regional Chief Counsel

By_________

Nicole Dana
Assistant Regional Counsel

D. PR 11-120 Continued Eligibility for Child's Insurance Benefits as a Full-Time Elementary or Secondary School Student

DATE: June 24, 2011

1. SYLLABUS

The Florida Connections Academy (FCA), an online school located in Orlando, Florida, that tracks and monitors students' hours of attendance, provides elementary and secondary education as a public school under Florida law and is, therefore, an educational institution for SSA purposes.  The FCA joined the Florida Virtual School to become the Florida Virtual School Full Time (FLVS FT). The FCA serves students in grades K-11 as public school students and in grades 6-12 as home education students.  The FLVS FT public program will add twelfth grade for the 2012-2013 school year, and the first FLVS FT public graduating class will occur in 2013.  If a student uses FCA as part of his or her home schooling, the student must receive instruction in accordance with the home school law of the state in which he or she resides.

2. OPINION

QUESTION

You asked whether Florida Connections Academy, a school located in Florida, is an online educational institution.  By telephone, you clarified that you also want an opinion regarding whether the beneficiary, a resident of Georgia, continues to qualify for child's insurance benefits as a full-time elementary or secondary school student based on his attendance at or through Florida Connections Academy.

OPINION

Florida Connections Academy appears to be a school that provides elementary and secondary education under Florida law.  If the beneficiary is attending Florida Connections Academy's public program as an online student, he may qualify as a full-time secondary school student for the purpose of determining his continued eligibility for child's insurance benefits.  However, the Agency should investigate the apparent conflict between the beneficiary's statement that he expects to graduate in June 2012 and information indicating Florida Connection Academy's public program will not offer twelfth grade education in the 2011-12 school year.  If the beneficiary is using Florida Connections Academy as part of a home-schooling program, the information provided does not establish that the beneficiary meets the requirements of Georgia's home schooling law and he would not be a full-time elementary or secondary school student for the purpose of determining his continued eligibility for child's insurance benefits.

BACKGROUND

According to the information provided, M~ (Beneficiary) is currently receiving child's insurance benefits (CIB) on the earnings record of his deceased father, Ed, Beneficiary will turn age eighteen on July 30, 2011. Social Administration (SSA) records indicate Beneficiary and his mother reside in Georgia, and Beneficiary provided a Georgia mailing address on the Student's Statement Regarding School Attendance form he completed.  Beneficiary indicated in his school-attendance statement that he was being home schooled through Florida Connections Academy (FCA), a school located in Orlando, Florida.  Beneficiary also reported he is scheduled to attend FCA for twenty-five hours per week and is expected to graduate from high school in June 2012. Beneficiary further reported he is not disabled, married, or being paid by an employer to attend school, and he indicated he had no outstanding warrants for his arrest.

Hannah , an assistant principal with FCA, certified that the information Beneficiary provided was correct according to FCA's records. Hannah also certified that FCA's course of study was at least thirteen weeks in duration and FCA operated on a yearly basis. Hannah reported that an individual may attend FCA if at least one parent is residing in Florida. Hannah reported she had not known Beneficiary was not a Florida resident, but stated Beneficiary was complying with FCA's attendance policy, noting FCA was a virtual online school and students' hours of attendance were tracked and monitored online.

FCA's website states that FCA and the Florida Virtual School "joined forces" in 2008 to become Florida Virtual School Full Time (FLVS FT). Florida Virtual School Full Time, About Us, http://www.connectionsacademy.com/florida-school/about.aspx (last visited June 24, 2011).  FCA's website describes FCA as "FLVS FT's predecessor." Id. FCA's website lists Hannah as assistant principal for grades 9-12 and indicates FLVS FT's administrative office address is the same Florida address Beneficiary noted in his school attendance statement. See id. FCA's website states, "For the 2011–12 school year, under new legislation enacted by the Florida Legislature, FLVS FT will be accepting students for full-time enrollment directly as their school district of record rather than only through their resident school districts.  We can serve full-time students in grades K–11* as public school students and in grades 6–12 as home education students." Id. The footnote states, "FLVS FT Public Program will be accepting students in Kindergarten-11th grade in the upcoming school year. 12th grade will be added for the 2012–13 school year enabling the first FLVS FT Public graduating class of 2013." Id. FCA's website also indicates FLVS FT's public and home education programs offer a standard public course load or a flexible option for home education students and follow a traditional 180-day school calendar. See id.

DISCUSSION

To be eligible for CIB on the earnings record of an individual who died a fully or currently insured individual, a beneficiary who is eighteen years or older and not disabled must be a "full-time elementary or secondary school student." See Social Security Act (Act) § 202(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2011); All references to 20 C.F.R. are to the 2011 version unless otherwise noted.

Program Operations Manual System (POMS) RS 00205.001. To qualify as a "full-time elementary or secondary school student," a beneficiary must attend an educational institution, i.e., a school that provides elementary or secondary education (twelfth grade or below) as determined under the law of the State in which the school is located. See Act § 202(d)(7)(A), (C)(i), (C)(ii); 20 C.F.R. § 404.367(a), (e); POMS RS 00205.001.A; POMS RS 00205.200.A.  A beneficiary may meet the requirement of attending an educational institution if he or she is instructed in elementary or secondary education at home in accordance with a home school law of the State in which he or she resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275.B.

A beneficiary also must attend school full time to qualify as a "full-time elementary or secondary school student." See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.201.A; POMS RS 00205.300.A.  To be considered in full-time attendance, a beneficiary generally must be in a day or evening noncorrespondence course of at least thirteen weeks duration, carry a subject load considered full-time for day students under the school's standards and practices, and be scheduled to attend at the rate of at least twenty hours a week. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c). The POMS states that a beneficiary is in full-time attendance if he or she is attending an educational institution and meets both State and Federal standards for full-time attendance. Neither the Act nor the regulations appear to specifically differentiate between State and Federal standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367. See POMS RS 00205.300.A. According to the POMS, a beneficiary meets the State standards if the school considers the beneficiary to be full-time based on the school's standards and practices. See POMS RS 00205.300.B. A beneficiary meets the Federal standards if he or she is scheduled to attend school at the rate of twenty hours per week, enrolled in a noncorrespondence course, and enrolled in a course of study that is of at least thirteen weeks' duration. See POMS RS 00205.300.C. 

A beneficiary who is home schooled must carry a subject load that is considered full-time for day students under standards and practices set by the State in which he or she resides. See 20 C.F.R. § 404.367(b); POMS RS 00205.275.B. A home-schooled beneficiary also must meet the Federal standards for full-time attendance. See POMS RS 00205.275.B.  If a beneficiary is attending an online school, the beneficiary may be a full-time student if he or she meets the Federal standards for full-time attendance and "[t]he online school is consistent with the law of the state in which the online school is located." POMS RS 00205.295.B; see also POMS PR 08205.039.B (PR 11-088) (noting an Agency specialist stated the requirement in POMS RS 00205.295.B that "[t]he online school is consistent with the law of the state in which the online school is located" should be read consistently with POMS RS 00205.200, which requires the Agency to determine if a school is an educational institution "under the law of the State or other jurisdiction in which it is located").

Beneficiary and FCA's website indicate FCA is located in Orlando, Florida.  Therefore, we look to Florida law to determine whether FCA is a school that provides elementary or secondary education. FCA's website states FCA and the Florida Virtual School "joined forces" to become FLVS FT and describes FCA as "FLVS FT's predecessor." Florida Virtual School Full Time, About Us, http://www.connectionsacademy.com/florida-school/about.aspx (last visited June 24, 2011).  Florida establishing the Florida Virtual School "for the development and delivery of online and distance learning education . . . ." Fla. Stat. Ann. § 1002.37(1)(a) (West 2011).  "The Florida Virtual School is a component of the delivery of public education within Florida's . . . education system." Fla. Stat. Ann. § 1000.04(4) (West 2011); see also Fla. Stat. Ann. § 1002.20(6)(a) (West 2011) (stating public school choice options include the Florida Virtual School).  FCA's website states its public program will provide kindergarten through eleventh grade education for the 2011-12 school year and will add twelfth grade for the 2012-13 school year. See Florida Virtual School Full Time, About Us, http://www.connectionsacademy.com/florida-school/about.aspx (last visited June 24, 2011). Given FCA's association with the Florida Virtual School and because FCA's website indicates its public program will provide education only through grade eleven in the 2011-12 school year and only through grade twelve beginning with the 2012-13 school year, FCA appears to be a public school that provides elementary and secondary education under Florida law. Therefore, FCA appears to be an educational institution for the purpose of determining whether Beneficiary is a full-time elementary or secondary school student. See also POMS PR 08205.011.C (PR 09-096) (concluding the Florida Virtual Global School, an online school located in Florida and an extension of the Florida Virtual School, is an educational institution).

If Beneficiary is attending FCA's public program as an online student, he would need to meet both FCA and Federal standards for full-time attendance. See POMS RS 00205.295. Beneficiary reported he is scheduled to attend FCA for twenty-five hours per week. Hannah certified Beneficiary's statements were correct and that FCA's course of study was at least thirteen weeks in duration. FCA's website does not indicate that its courses are correspondence courses.  Thus, the information provided indicates Beneficiary meets the Federal full-time attendance standards. See 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C. The evidence also indicates FCA attendance standards satisfy Florida law.  Because FCA qualifies as a public school under Florida law, above, SSA considers FCA attendance standards to comport with Florida law requirements. See POMS RS 00205.295, POMS RS 00205.300. FCA appears to be an educational institution, and Hannah stated Beneficiary was complying with FCA's attendance policy.  Thus, the available information indicates Beneficiary is in full-time attendance if he was or is attending FCA's public program as an online student. FCA's website states "Students must reside in the state of Florida and provide acceptable proof of residency to be eligible for enrollment." Florida Virtual School Full Time, Eligibility Requirements, http://www.connectionsacademy.com/florida-school/eligibility.aspx (last visited June 8, 2011). However, Hannah stated Beneficiary was complying with FCA's attendance policy, and SSA policy on online schools does not indicate the beneficiary is required to prove he or she is eligible to enroll in the online school. See POMS RS 00205.295.

However, Beneficiary stated he expects to graduate from high school in June 2012.  As noted above, FCA's website indicates its public program will offer education only through eleventh grade for the 2011-12 school year. Thus, FCA's website indicates Beneficiary could not graduate from high school in June 2012 because FCA will not be offering twelfth grade classes during the upcoming school year.  Given the apparent inconsistency between Beneficiary's statement and the information on FCA's website, we believe SSA should further investigate whether Beneficiary is attending or will be able to attend FCA's public program before deciding whether he is a "full-time elementary or secondary student" for the purpose of determining his continuing eligibility for CIB. The information provided indicates Beneficiary meets the other requirements for being a full-time elementary or secondary student. See Act § 202(d)(7)(A), (C)(ii); 20 C.F.R. § 404.367(d)-(f); POMS RS 00205.001. Beneficiary reported he was not being paid by an employer to attend school; FCA's website indicates it provides instruction in twelfth grade or below, and Beneficiary and Ms. R~ indicated he was scheduled to graduate from high school in June 2012; and nothing in the record suggests Beneficiary was in prison or another publically funded institution.

Furthermore, Beneficiary indicated on his school-attendance statement that he was being homeschooled. FCA offers both a public program and a home education program. See Florida Virtual School Full Time, About Us, http://www.connectionsacademy.com/florida-school/about.aspx (last visited June 24, 2011).  If Beneficiary is using FCA as part of his homeschooling, he must receive instruction in accordance with a home school law of the State in which he resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275.B. Beneficiary also must carry a subject load that is considered full-time for day students under standards and practices set by the State in which he resides. See 20 C.F.R. § 404.367(b); POMS RS 00205.275.B.

The information provided indicates Beneficiary resides in Georgia.  Georgia law mandates attendance in a public school, private school, or home school program for children between their sixth and sixteenth birthdays. Although Beneficiary is beyond his sixtieth birthday, "a home school must comply with State law for the child to be entitled as a student even if he/she is beyond the State's compulsory education age." POMS RS 00205.275B. See Ga. Code. Ann. § 20-2-690.1 (2011).  A parent may teach his or her child in a home study program provided the parent and home study program comply with numerous requirements, including: the parent must submit a declaration to the local school district; the parent must have at least a high school diploma or a general educational development diploma, or employ a tutor who holds a high school diploma or a general educational development diploma; the home study program must provide instruction each year equivalent to 180 school days of education; the parent must keep attendance records and submit them to the local school district; the student must be subject to an appropriate nationally standardized testing program; and the home study program instructor must write an annual progress assessment report. See Ga. Code. Ann. § 20-2-690(c) (2011).  The information provided does not indicate Beneficiary's mother or his home study program has met or complied with the requirements of Georgia's home schooling law. Thus, if Beneficiary is being home schooled, the information currently available does not establish that he is in full-time attendance under Georgia law and, therefore, he would not be a full-time elementary or secondary student for purposes of determining his continuing eligibility for CIB.

CONCLUSION

FCA is an educational institution under Florida law. If Beneficiary is or will be enrolled in FCA's public program as an online student, Beneficiary may be a full-time elementary or secondary student for purposes of determining his continuing eligibility for CIB.  However, SSA should obtain further information from Beneficiary and FCA regarding the apparent discrepancy between Beneficiary's statement that he expects to graduate in June 2012 and the information on FCA's website indicating its public program will offer education only through the eleventh grade in the 2011-12 school year.  If Beneficiary is using FCA's home education program for homeschooling, the information provided does not establish Beneficiary as a full-time elementary or secondary student for the purpose of determining his continuing eligibility for CIB.

Mary Ann Sloan
Regional Chief Counsel

By_________

Brian C. Huberty
Assistant Regional Counsel

E. PR 11-107 Status of Christian Educators Academy as an Educational Institution

DATE: May 19, 2011

1. SYLLABUS

The Christian Educators Academy (CEA), located in Cape Canaveral, Florida, offers teacher-supported high school classes online. The CEA provides secondary education in accordance with Florida law and is, therefore, an educational institution for SSA purposes. 

2. OPINION

QUESTION PRESENTED

You asked whether the Social Security Administration (SSA) should consider Christian Educators Academy as in educational institution when determining a beneficiary’s eligibility for child’s insurance benefits after the beneficiary attained age eighteen.

OPINION

Based on the information provided, SSA should consider Christian Educators Academy an educational institution when determining the beneficiary’s eligibility for child’s insurance benefits.

BACKGROUND

Timothy (Beneficiary) received child’s insurance benefits on the account of his father, Gary . Just prior to his eighteenth birthday in March 2011, Beneficiary submitted a “Student’s Statement Regarding School Attendance,” certifying that he was enrolled, full time, in classes at Christian Educators Academy (CEA).

CEA is located in Cape Canaveral, Florida, and is accredited by the Northwest Accreditation Commission. See http://www.highschool-online.com/why-cea.php (visited May 5, 2011).  The Florida Department of Education’s on-line directory of non-public schools also lists CEA as a private school in the Brevard County School District. See http://www.floridaschoolchoice.org/information/privateschooldirectory/Default.aspx (visited May 5, 2010).  However, this directory does not identify any source of CEA’s accreditation. See id.

According to the materials we received, CEA’s full-time student program offers a full college preparatory curriculum, honors and Advanced Placement (AP) courses, standardized testing, accredited diploma choices, and state-approved record keeping. A student may complete his high school diploma in four years or choose to accelerate his graduation at his own pace. Students take teacher-supported classes online, which they must complete within 365 days.  Unlike a traditional home-school program, parents do not teach their children. The students become “Private School Students of CEA.”  Students must take at least four (4) academic courses at one time and up to eight (8) full credit courses each year. High school courses lasting one semester generate 0.5 units of credit, whereas courses lasting two semesters generate one (1) unit of credit, unless stated otherwise.

Students graduating from CEA may obtain a “Standard College Preparatory Diploma” or an “Advanced College Preparatory Diploma.” See http://www.highschool-online.com/graduation-requirements.php (visited May 5, 2011). To obtain the standard diploma, a student must obtain twenty (20) to twenty-two (22) credits, must participate in seventy-five (75) hours of approved community service, must complete the “EXIT” exam or the SAT or ACT test, and must have a cumulative grade point average (GPA) of 3.0. See id.  To obtain an advanced diploma, a student must obtain thirty-one (31) to thirty-six (36) credits of which eight courses must be honors or AP, must participate in seventy-five (75) hours of approved community service, must take the SAT or ACT preparatory course and the “TEST,” and must have a cumulative grade point average (GPA) of 3.5. See id.

Beneficiary reported he was scheduled to attend school for twenty-plus hours per week and expected to graduate high school in January 2012.  Deborah, Director of CEA, confirmed Beneficiary’s enrollment, scheduled hourly attendance, and expected graduation date. Deborah also stated CEA observes a year round calendar and confirmed its course of study was at least thirteen weeks in duration.

DISCUSSION

To be eligible for child’s insurance benefits on the earnings record of an insured person who is entitled to old-age or disability insurance benefits, a claimant who is eighteen years or older and not disabled must be a “full-time elementary or secondary school student.” See Social Security Act (Act) § 202(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2010). A claimant may qualify as a “full-time elementary or secondary school student” if he or she attends a recognized educational institution, which is a school that provides elementary or secondary education as determined under the law of the State in which the school is located. See Act § 202(d)(7)(A), (C)(i); 20 C.F.R. § 404.367(a); Program Operations Manual System (POMS) RS 00205.200.A.; see also POMS RS 00205.250 (describing the process for determining whether a school is an educational institution).

Because CEA is located in Florida, we look to Florida law to determine whether it qualifies as an elementary and/or secondary school. Under Florida law, a “school” is “an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, or other public school level authorized under rules of the State Board of Education.” Fla. Stat. Ann. § 1003.01(2) (West 2011). Florida recognizes five types of educational entities a student may attend to satisfy regular attendance requirements:  public schools; parochial, religious or denominational schools; private schools; home education programs; and private tutoring programs. See Fla. Stat. Ann. § 1003.01(13). A “private school” in Florida is a nonpublic school defined as:

an individual, association, copartnership, or corporation, or department, division, or section of such organizations, that designates itself as an educational center that includes kindergarten or a higher grade or as an elementary, secondary, business, technical, or trade school below college level or any organization that provides instructional services . . . .  A private school may be a parochial, religious, denominational, for-profit, or nonprofit school.

Fla. Stat. Ann. § 1002.01(2) (West 2011); cf.Fla. Stat. Ann. § 1002.42(1) (West 2010) (cross-referencing private school definition at Fla. Stat. Ann. § 1002.01(2)). Florida has minimum requirements for private schools, including registration with the Florida State Department of Education, an annual survey, and owner fingerprinting for a criminal background check. See Fla. Stat. Ann. § 1002.42; see also http://www.floridaschoolchoice.org/Information/Private_Schools/general_requirements.asp (visited May 10, 2011).  Also, private schools must keep attendance records to demonstrate compliance with State compulsory attendance requirements and must meet certain health and safety requirements. See Fla. Stat. Ann. §§ 1002.42(4)-(7), 1003.23(2) (describing compulsory attendance and record-keeping requirements); see also http://www.floridaschoolchoice.org/Information/Private_Schools/general_requirements.asp.

Full-time attendance requires a course of at least 13 weeks duration where the student is “carrying a subject load [that] is considered full-time for day students under the institution's standards and practices” or, if attending a home schooling program, the student is “carrying a subject load [that] is considered full-time for day students under standards and practices set by the State or other jurisdiction in which [the student] reside[s].” 20 C.F.R. § 404.367(b).  To demonstrate full-time attendance at an elementary or secondary school, the student must meet both State and Federal standards for full-time attendance. See POMS RS 00205.300.A.  Under the relevant Federal standard, a student is in full-time attendance if his or her scheduled attendance is at a rate of at least twenty (20) hours per week, with certain exceptions not relevant here. See 20 C.F.R. § 404.367(c).

Florida law and the rules of the Florida State Board of Education establish attendance requirements for private school students. See Fla. Stat. Ann. § 1002.42(7) (West 2010) (stating attendance at a private school satisfies Florida school attendance requirements of Fla. Stat. Ann. §§ 1003.01(13) and 1003.21(1) (West 2010)). “Regular school attendance” means the actual attendance of a student during the school day as defined by law and rules of the State Board of Education. Fla. Stat. Ann. § 1003.01(13). The Florida State Board of Education’s rules state a child complies with compulsory attendance requirements if he or she maintains regular attendance of either 180 actual school days or a minimum of 170 actual school days and the hourly equivalent of 180 actual school days, totaling 900 net instructional hours for grades 4-12. See Fla. Admin. Code Ann. r. 6A-1.09512 (2010).

The evidence provided demonstrates that the Florida Department of Education Directory of Non-Public Schools lists CEA as a private school, but does not identify any source of CEA’s accreditation. Nevertheless, Florida does not require accreditation among its minimum standards for operating a private school. See Fla. Stat. Ann. § 1002.42. Indeed, Florida clearly indicates that registration in its database does not indicate any State regulation, control, approval, or accreditation of private schools, such as CEA; private school registration is required to create a database where current information may be obtained as a service to the public, governmental agencies, and other interested parties. See Fla. Stat. Ann. § 1002.42(2)(h).  Thus, notwithstanding the absence of CEA’s accreditation in the directory, there is no indication that CEA has failed to comply with the State’s minimum standards for operating a private school. See Fla. Stat. Ann. § 1002.42.  Therefore, we believe CEA is a school recognized under Florida law as providing elementary or secondary education and can be considered an educational institution when determining whether Beneficiary is a full-time student.

The evidence also indicates Beneficiary meets the other conditions for a full-time elementary or secondary school student. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b)-(f). Beneficiary reported he was scheduled to attend classes for twenty-plus hours per week at CEA. See 20 C.F.R. § 404.367(b) (setting forth requirements for enrollment in an educational institution); 20 C.F.R. § 404.367(c) (defining full-time attendance). Beneficiary also stated he was not being paid by an employer to attend school. See 20 C.F.R. § 404.367(d) (disqualifying students “paid while attending the school by an employer who has requested or required that [he or she] attend the school”). Beneficiary is in grade 12 or below, as he reported he expects he will graduate from high school in January 2012. See 20 C.F.R. § 404.367(e) (requiring the student to be “in grade 12 or below”). Therefore, the record indicates Beneficiary meets the attendance and other requirements to be a full-time elementary or secondary school student.** Nothing in the facts we received indicates Beneficiary is a “prisoner or certain other inmate” of a publicly funded institution. See 20 C.F.R. § 404.367(f) (excluding payment of benefits to prisoners).

CONCLUSION

Because CEA provides secondary education under the laws of Florida, CEA is an educational institution for determining Beneficiary’s continuing eligibility for child’s insurance benefits. The record also indicates Beneficiary meets the other requirements for a full-time student for the purposes of determining his continuing eligibility for child’s insurance benefits. 

Mary Ann Sloan
Regional Chief Counsel

By_________

Jerome M. Albanese
Assistant Regional Counsel

F. PR 10-072 Legal precedent opinions for online schooling -- Region IV jurisdictions

DATE: March 12, 2010

1. SYLLABUS

The Florida Virtual Global School (FLVGS), an Internet school located in Florida that is an extension of the Florida Virtual School (FVS), provides secondary education in accordance with Florida law. The FLVGS is, therefore, an educational institution (EI) for SSA purposes. If a student alleges full-time attendance at an online school in Florida other than the FLVGS or FVS, the adjudicator should follow the instructions in RS 00205.295 and GN 01010.815 to obtain a legal precedent opinion about its EI status.

2. OPINION

BACKGROUND

To be eligible for child’s benefits on the earnings record of an insured person who is entitled to old-age or disability benefits, a claimant eighteen years or older who is not disabled must be a full-time elementary or secondary school student. See Social Security Act (Act) § 202(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2009). An individual can meet this requirement if he or she attends a school that provides elementary or secondary education as determined under the law of the state in which the school is located. See Act § 202(d)(7)(A), (C)(i); 20 C.F.R. § 404.367(a). You have asked an online school can qualify as an educational institution under the laws of the states within the Atlanta region. Few states in the Atlanta region have specific provisions allowing on-line schools. Rather the states tend to provide general guidelines for what they recognize as an educational institution and some on-line schools might satisfy those guidelines. It is important to note, however, that other on-line schools may not qualify. As with other types of schools, each case will require an individual determination based on the facts as presented. Following is a review of each of the eight states within the Atlanta region.

DISCUSSION

Alabama:

Alabama recognizes four types of educational entities: public schools, private schools, church schools, or instruction from a competent private tutor. See Ala. Code § 16-28-3 (2009) (requiring attendance of every child between the ages of seven and sixteen years, with limited exceptions, at one of these educational entities). Alabama contemplates teacher-assisted online learning, and requires among its teaching standards that teachers have knowledge of the wide range of technologies to support and enhance instruction, including distance learning and online learning opportunities. See Ala. Admin. Code r. 290-3-3-03, Standard 3.4(ii) (2008). Alabama offers residents the opportunity to take courses offered by public schools online for free. See http://distancelearn.about.com/od/virtualhighschools/a/AlabamaPublic.htm (visited Feb. 16, 2010); http://accessdl.state.al.us/ (visited Feb. 16, 2010). With the exception of one credit hour for physical education, a half credit hour for arts education, and a state-required graduation examination, the offerings online via either Web-Based Instruction or Video Conferencing Instruction can enable a student to graduate from high school in Alabama while attending school online for grades 9, 10, 11, and 12. See http://accessdl.state.al.us/courses.html (indicating course offerings) (visited Feb. 16, 2010). We did not find any Alabama statute, regulation or administrative code regarding the requirements for attending or graduating from high school in Alabama through the online courses outlined in the above-noted websites. We also did not find any Alabama statute, regulation, or administrative code regarding whether taking online courses not offered by Alabama public schools, including entities outside Alabama, might satisfy the standards of a school under Alabama law.

A private school in Alabama must hold a certificate issued by the State Superintendent of Education, see Ala. Code § 16-28-1(1) (2009), and must be licensed to operate in the state, see Ala. Code § 16-46-5 (2009) (denoting that a private secondary and K-12 school must be licensed to operate, and such licensure includes fees, a statement of financial stability, and payment of a surety bond). A private school certificate must show it conforms to the following requirements: 1) the teachers must be certified by the State Superintendent of Education; 2) instruction must be offered in the several branches of study required to be taught in the public schools of Alabama; 3) English must be used in instructing the students; and 4) a register of attendance must be kept that clearly indicates every absence of each child from school for a half day or more during each school day of the school year. See Ala. Code § 16-28-1(1); see also Ala. Admin. Code r. 290-3-2-.02 (2008) (denoting teacher certification requirements). We found nothing in Alabama law prohibiting a private (non-church) school, which meets these requirements, from providing online education in Alabama.

Church schools are “schools . . . operated as a ministry of a local church, group of churches, denomination, and/or association of churches on a nonprofit basis which do not receive any state or federal funding.” Ala. Code § 16-28-1(2). A child attending a church school is exempt from the requirements of compulsory attendance provided the child complies with the procedure in section 16-28-7. See Ala. Code § 16-28-3. “The enrollment and attendance of a child in a church school must be filed with the local public school superintendent by the parent . . . on a form provided by the superintendent . . . which shall be countersigned by the administrator of the church school.” Ala. Code § 16-28-7 (2009). Additionally, the principal teacher of the church school must keep an attendance register for each day of the school year. See Ala. Code § 16-28-8 (2009). In an opinion dated January 3, 1997, the Alabama Attorney General stated:

There is no statutory authority authorizing or requiring any state or local authority to regulate church schools, which may conduct classes as they see fit. There is no requirement that church school teachers be certified or that a church school be accredited by the state or any private agency. No state or government authority has the authority to regulate a church school. . . .

Other than the state laws requiring parents to report attendance and for church schools to report if a student is no longer in attendance at such a church school, there is no provision of Alabama law that permits or requires any state or local authority to regulate a church school.

246 Ala. Op. Atty. Gen. 14, 1997 WL 1053990 (Ala. A.G.). Thus, the parents of a student attending an online church school might need to comply only with Alabama attendance reporting requirements.

Alabama also recognizes that a child can receive instruction from a competent private tutor. See Ala. Code § 16-28-5 (2009). The tutor must be a state certified teacher, teach “for at least three hours a day for 140 days each calendar year, between the hours of 8:00 a.m. and 4:00 p.m.,” file with the county superintendent a statement describing subjects taught and period of instruction, keep a register of the child’s work showing daily hours of instruction and attendance, and make such reports as the State Board of Education may require. Id. To obtain a high school diploma, a child must have credits in such courses as English, algebra, geometry, biology, social studies, physical education, and arts education. See Ala. Admin. Code r. 290-3-1-.02(8) (2008). Contents of courses not defined in the state course of study must be approved by the local board of education. Id. Alabama does not appear to address whether instruction by a competent private tutor could be provided online, but a student obtaining online tutoring from an Alabama certified teacher might qualify as online coursework in the state.

Florida:

Florida law recognizes five types of educational entities: public schools, private schools, parochial, religious or denominational schools, home education programs, and private tutoring programs. See Fla. Stat. Ann. § 1003.01(13) (West 2009). Florida law further states that parents of public school students may seek the public school choice option available to their child. See Fla. Stat. Ann. § 1002.20(6)(a) (West 2009). Public school choices include enrollment at the Florida Virtual School. See id. Thus, Florida allows students to attend public school online. The Florida Virtual School was established to develop and deliver online and distance learning education. See Fla. Stat. Ann. § 1002.37(1)(a) (West 2009). It is administratively housed within the Commissioner of Education’s Office of Technology and Information Services. See id. The mission of the Florida Virtual School is to provide students with technology-based educational opportunities to gain the knowledge and skills necessary to succeed. See id. at (b). This school serves any student in the state who meets the profile for success in this educational delivery context, with priority given to: (1) students who need expanded access to courses to meet their educational goals, such as home education students and students in inner-city and rural high schools who do not have access to higher-level courses; and (2) students seeking accelerated access to obtain a high school diploma at least one semester early. See id.

A “private school” in Florida is a nonpublic school defined as:

an individual, association, copartnership, or corporation, or department, division, or section of such organizations, that designates itself as an educational center that includes kindergarten or a higher grade or as an elementary, secondary, business, technical, or trade school below college level or any organization that provides instructional services . . . . A private school may be a parochial, religious, denominational, for-profit, or nonprofit school.

Fla. Stat. Ann. § 1002.01(2) (West 2009).

Florida has state attendance requirements for private school students. See Fla. Stat. Ann. § 1002.42(7) (West 2009) (citing Fla. Stat. Ann. §§ 1003.01(13), 1003.21(1) (West 2009)). The attendance requirements are defined by law and the rules of the State Board of Education. See Fla. Stat. Ann. § 1003.01(13) (West 2009). The Florida State Board of Education rules describe the following school attendance requirements in a non-public school:

(1) One hundred eighty (180) actual school days determined as prescribed by Section 1011.60(2), Florida Statutes, or

(2) A minimum of one hundred seventy (170) actual school days and the hourly equivalent of one hundred eighty (180) actual school days, determined as prescribed below:

(a) Kindergarten: Five hundred forty (540) net instructional hours.

(b) Grades 1-3: Seven hundred twenty (720) net instructional hours.

(c) Grades 4-12: Nine hundred (900) net instructional hours.

Fla. Admin. Code Ann. r. 6A-1.09512 (2010). Keeping and preparing attendance records applies to “all officials, teachers, and other employees in parochial, religious, denominational, and private schools . . . .” Fla. Stat. Ann. § 1002.42(4) (West 2009). Florida law does not appear to prohibit a private school from providing education to students online, nor does it appear to specifically allow such instruction.

A student in Florida may achieve regular school attendance as by attending a private tutoring program, provided the person tutoring the student: (a) holds a valid Florida certificate to teach the subjects or grades in which instruction is given; (b) keeps all records and makes all reports required by the state and district school board and makes regular reports on the attendance of students; and (c) requires students to be in actual attendance for the minimum length of time as prescribed by statute. See Fla. Code. Ann. § 1002.43(1) (West 2009). The statutory requirement for a minimum school term is that all schools must operate “for a term of 180 actual teaching days or the equivalent on an hourly basis as specified by rules of the State Board of Education each school year.” Fla. Stat. Ann. § 1011.60(2) (West 2009). Florida law does not appear to prohibit a private tutor from providing education to students online, nor does it appear to specifically allow such instruction.

Georgia:

Georgia recognizes three types of educational entities: public schools, private schools, and home study programs. See Ga. Code Ann. § 20-2-690(a) (West 2009). Georgia also recognizes online learning through the Georgia Virtual School. See Ga. Code Ann. § 20-2-319.1 (West 2009). The Georgia Virtual School is fully accredited and offers a full high school curriculum with advanced placement and college prep level courses and a limited middle school curriculum. See http://www.gavirtualschool.org/ (visited Feb. 20, 2010). Under a tuition program, students may take additional courses to enhance their course of study or to catch up if they have fallen behind. See id. All courses are taught by certified teachers and the Georgia Virtual School offers courses free of charge to all Georgia students who are taking courses as part of their state reported school day. See Ga. Code Ann. § 20-2-319.1. Students from public school are given priority over private school students for enrollment in Georgia Virtual School courses. See id. The Georgia Virtual School also provides special programs for out-of-state students and to hospital/homebound students at no cost if funded seats are available or with the payment of tuition in an unlimited capacity. See http://www.gavirtualschool.org/Home/ParentInformation/ tabid/141/Default.aspx (visited Feb. 20, 2010) (viewing subtabs for Out of State Students and Hospital Homebound or Special Education Students). This program allows students to either take courses online during their regular school day or take additional courses after regular school hours or during the summer. See http://www.gavirtualschool.org/Home/SchoolInformation/ PublicSchools/tabid/142/Default.aspx (visited Feb. 20, 2010). Further, each school must have a person appointed to approve all courses a student requests to take with Georgia Virtual School. See http://www.gavirtualschool.org/Default.aspx?tabid=149 (visited Feb. 20, 2010). The schools must have a monitor who works in tandem with the online instructor and provides the student with face-to-face support, necessary technical and academic guidance, and resources at the local school, is responsible for coordinating required tests, and acts as a liaison between the local school and Georgia Virtual School. See id. The local school must agree to accept and transcribe the students’ grades at the end of the semester. See id. The Georgia Virtual School does not grant credit itself. See id. Thus, a student attending the Georgia Virtual School must also be enrolled in a “brick and mortar” school to convert any virtual course credits to accepted transcript credits on the student’s official school record.

As indicated above, private school students may also attend the Georgia Virtual School, albeit with lower priority. See Ga. Code Ann. § 20-2-319.1. A “private school” in Georgia must: (1) have providing education as its primary purpose; (2) be privately controlled and operate on a continuing basis; (3) provide instruction each 12 months for the equivalent of 180 school days of education with each school day consisting of at least four and one-half school hours; (4) provide a basic academic educational program that includes reading, language arts, mathematics, social studies, and science; (5) provide to the school superintendent of each local public school district which has residents enrolled in the private school with a list of the name, age, and residence of each resident so enrolled and provide monthly updates of students who enroll or terminate enrollment in the private school; and (6) meet local health and safety standards. See Ga. Code Ann. § 20-2-690(b). Religious schools are also considered private schools and are subject to the same requirements. See id. at (b)(1). Georgia law does not appear to prohibit private schools from providing online or internet education apart from the Georgia Virtual School. However, Georgia law does not appear to specifically allow a private school to provide classes online.

The requirements for home schooling indicate parents or guardians may teach their children at home in a home study program, provided the parent(s) or guardian satisfies certain requirements. See Ga. Code Ann. § 20-2-690(c). Parents may teach their own children and not those children of others, but parents may also employ a tutor. See id. at (c)(3). Georgia law does not appear to contemplate online teaching of a child by his or her parent located elsewhere or an online tutor hired by the parents, but nor does it explicitly prohibit such methods of education. We note the Georgia Virtual School provides special programs for home school students with the payment of tuition costs. See http://www.gavirtualschool.org/Home/ParentInformation/tabid/141/Default. aspx (visited Feb. 20, 2010) (viewing subtab for Home School Students). However, because the Georgia Virtual School does not give credits, the student attending such courses would have to apply to receive credit for such courses from the local school board, as would any other student.

Kentucky:

With certain exceptions, parents, guardians, or other persons having custody or charge over any child between the ages of six (6) and sixteen (16) must send the child to a regular public day school or to the public school that the board of education of the district makes provision for the child to attend. See Ky. Rev. Stat. Ann. § 159.010(1) (West 2009). A child within the compulsory school age is exempt from the requirement of attending a regular public day school if the child: (a) has graduated from an accredited or an approved four (4) year high school; (b) is enrolled and in regular attendance in a private, parochial, or church regular day school; (c) is fewer than seven (7) years old and is enrolled and in regular attendance in a private kindergarten-nursery school; (d) has a physical or mental condition that prevents or renders inadvisable attendance at school or application to study; (e) is enrolled and in regular attendance in private, parochial, or church school programs for exceptional children; or (f) is enrolled and in regular attendance in a state-supported program for exceptional children. See Ky. Rev. Stat. Ann. § 159.030(1) (West 2009). Thus, Kentucky recognizes a variety of school programs in addition to regular public school.

Within its laws for special school programs, Kentucky has created the Kentucky Virtual High School (KVHS), which involves secondary-level instructional programs or courses offered by the Kentucky Department of Education through the Internet and other online, computer-based methods. See Ky. Rev. Stat. Ann. § 158.007(11) (West 2009); see also http://www.kyvs.org/ webapps/portal/frameset.jsp?tab_id=_104_1 (visited Mar. 8, 2010). Students may take advanced-placement courses through the KVHS. See Ky. Rev. Stat. Ann. §§ 158.622, 158.847, 160.348 (West 2009). Also, children confined to home or the hospital may use the KVHS to continue course credit. See 704 Ky. Admin. Regs. 7:120 § 4(3)-(4) (2009). However, instruction through the KVHS for confined students is in addition to a minimum of two (2) visits with the confined student per week lasting at least one (1) hour each. See id. at § 4(4). This regulation, however, does not define the substance of what these “visits” must entail or whether they are by a teacher or an administrative representative of the school. A student may be in attendance if the he or she is participating in an offsite virtual high school class or block. See 702 Ky. Admin. Regs. 7-125 § 1(4)(c) (2009). However, to graduate from high school, each student must complete an individual learning plan that emphasizes career development and must have a total of at least twenty-two (22) credits, and after the graduating class of 2012, each student must have demonstrated performance-based competency in technology. See 704 Ky. Admin. Regs. 3:305 §§ 1-2 (2009).

Private and parochial schools must at all times be open to inspection by directors of pupil personnel and officials of the Department of Education. See Ky. Rev. Stat. Ann. § 159.040 (West 2009). To ensure compliance with its compulsory attendance law, Kentucky requires each private, parochial, or church regular day school to notify the local board of education of those students in attendance at the school. See Ky. Rev. Stat. Ann. §§ 159.030(1)(b), 159.040, 159.160 (West 2009). However, if a school declines to notify the local board of education of those students in attendance, that school must notify each student’s parent or legal guardian in writing and the parent or legal guardian must then give proper notice to the local board of education. See Ky. Rev. Stat. Ann. § 159.030(1)(b) (2009). Further, any private, parochial, or church school may voluntarily comply with curriculum, certification, and textbook standards established by the Kentucky Board of Education and be certified upon application to the board by such schools. See Ky. Rev. Stat. Ann. § 156.160(4) (West 2009); 704 Ky. Admin. Regs. 10:022 § 3 (2009). Further, private and parochial schools must teach courses in the English language and offer instruction in the several branches of study required to be taught in the public schools of the state. See Ky. Rev. Stat. Ann. § 158.080 (West 2009). Except in those school districts operating a year-round school program, the term of the private or parochial school must not be for a shorter period in each year than the term of the public school provided in the district in which the child attending the school resides. See id. In school districts that operate a year-round school program, the minimum term of private and parochial schools must be one hundred eighty-five (185) days. See id. Kentucky law is silent on whether or not a private, parochial, or church school may provide online education.

Mississippi:

A parent, guardian, or custodian of a child in Mississippi must cause his or her child to enroll in and attend a public school or legitimate nonpublic school for the period that the child is of compulsory school age, except in certain limited circumstances. See Miss. Code Ann. § 37-13-91(3) (West 2009). The limited circumstances when a child is not compelled to attend a public or legitimate non-public school include when a child is: (a) physically, mentally or emotionally incapable of attending school as determined by an appropriate school official based upon sufficient medical documentation; (b) enrolled in and pursuing a course of special education, remedial education, or education for handicapped or physically or mentally disadvantaged children; or (c) being educated in a legitimate home instruction program. See Miss. Code Ann. § 37-13-91(3)(a)-(c).

Mississippi has also created the Mississippi Virtual Public School (MVPS) Program. See Miss. Code Ann. § 37-163-3(2) (West 2009); see also 36-000-112 Miss. Code R. pt. I (Weil 2009). The intent of this school is to provide Mississippi families with an alternative choice to access additional educational resources to improve academic achievement. See Miss. Code Ann. § 37-163-3(2) (West 2009); see also 36-000-112 Miss. Code R. pt. I. The MVPS is a public school and treatment and resources on par with other public schools in the state. See id. The MVPS’ website indicates it is a web-based educational service offered by the Mississippi Department of Education to provide Mississippi students with access to a wider range of coursework, greater flexibility in scheduling, and an opportunity to develop their capacities as independent learners. See http://www.mvps.mde.k12.ms.us/about.html (visited Mar. 7, 2010); see also 36-000-112 Miss. Code R. pt. I (Weil 2009). All students in grades 9 through 12 have access to free online courses through MVPS, with priority given to juniors and seniors. See http://www.mvps.mde. k12.ms.us/about.html (visited Mar. 7, 2010). However, the MVPS does not offer online courses in subjects that are tied to standardized subject-area tests, such as algebra I, biology I, English II, or U.S. history -- students may take non-core content courses for elective credit only. See id. The goals of the MVPS program are to provide additional Advanced Placement (AP) course options to school districts, offer students an alternative to traditional learning, enhance educational technology use in the schools, and assist school districts in offering courses in subject areas where teachers are limited or nonexistent. See id. The MVPS targets a variety of students from the highly gifted to the disadvantaged for its online courses. See id. In particular, the MVPS is designed to enable public schools to support students who are unable to attend school for medical or other reasons, students who are interested in taking AP courses or other courses not offered in their school, and students who need intervention or accommodations or are in alternative schools. See id. As of 2010, it appears that the MVPS only provides courses for students in high school, see http://www.mvps.mde.k12.ms.us/spring2010.html (visited Mar. 7, 2010), and requires students to have adequate keyboard skills, see http://www.mvps.mde.k12. ms.us/faq.html (visited Mar. 7, 2010). Through the MVPS program, public school students in Mississippi may take some, but not all, courses online.

A “nonpublic school” in Mississippi is an institution for the teaching of children, consisting of a physical plant, whether owned or leased, including a home, instructional staff members, and students, which is in session each school year. See Miss. Code Ann. § 37-13-91(2)(i) (West 2009). This definition includes, but is not limited to, private, church, parochial, and home instruction programs. See id. The Mississippi Board of Education may accredit non-public schools if requested. See Miss. Code Ann. § 37-17-7 (West 2009). Such accreditation of non-public schools is outlined in the Mississippi Administrative Code. See 36-000-070 Miss. Code R. §§ 1.0-10.5 (Weil 2009). Otherwise, nonpublic schools in Mississippi may be accredited by one or more nonpublic school association(s) or group(s). See Miss. Code Ann. § 37-17-9 (West 2009). Finally, Mississippi has established a program to provide for financial assistance to children attending nonsectarian private schools. See Miss. Code Ann. § 37-51-1 et seq. (West 2009).

The Mississippi Legislature has provided that private education providers may be selected by the State Board of Education to operate virtual school programs in the state, which will be overseen by the State Department of Education. See Miss. Code Ann. § 37-163-3(2) (West 2009). Thus, any private school (private, church, parochial, and home instruction programs, see Miss. Code Ann. § 37-13-91(2)(i) (West 2009)) may apply for approval to operate a virtual school in Mississippi. See Miss. Code Ann. § 37-163-3(2). Also, this law would appear to allow a private entity not already operating a private school in Mississippi to apply and obtain approval to operate a virtual school in Mississippi. See id.

North Carolina:

North Carolina provides for free public education throughout the state for all students. See N.C. Gen. Stat. Ann. § 115C-1 (West 2009). Public schools statutes include provisions for education to students with disabilities, see N.C. Gen. Stat. Ann. § 115C-107.6 (West 2009), and a system of charter schools to improve learning opportunities, see N.C. Gen. Stat. Ann. § 115C-238.29 (West 2009). Also, North Carolina has a goal of improving education, one method of which is to establish a virtual high school. See N.C. Gen. Stat. Ann. § 116C-4 (West 2009). To that end, the Governor of North Carolina in 2002 established a commission to establish the North Carolina Virtual Public School (NCVPS). See http://ncvps.org/about/history/ (visited Feb. 23, 2010). The purpose of the NCVPS is to provide courses that students cannot take at their local schools, to augment a student’s local school’s program of study. See id. The program also allows home-bound or hospital-bound students to remain on schedule to graduate on time or enable students to graduate from high school in three years. See id. Students are taught by North Carolina-certified teachers and the grades that they earn in their NCVPS course will transfer to their local school and become part of their academic record. See http://ncvps.org/parentstudent/ (visited Feb. 23. 2010). This program was established to offer high school courses, but later expanded to add courses for middle school students and to provide college courses for high school students seeking to earn college credits. See http://ncvps.org/about/history/ (visited Feb. 23, 2010). Courses at the NCVPS are available at no cost to all students in North Carolina public schools, Department of Defense schools, and schools operated by the Bureau of Indian Affairs. See id.

North Carolina recognizes three types of non-public schools: private church schools or school of religious charters, qualified non-public schools, and home schools. See N.C. Gen. Stat. Ann. §§ 115C-547, 115C-555, 115C-563 (West 2009). Qualified non-public schools have one or more of the following characteristics: (1) the school is accredited by the State Board of Education; (2) the school is accredited by the Southern Association of Colleges of Schools; (3) the school is an active member of the North Carolina Association of Independent Schools; and/or (4) the school receives no funding from the State of North Carolina. See N.C. Gen. Stat. Ann. § 115C-555. While recognizing the separation of church and state clause of the First Amendment to the U.S. Constitution, see N.C. Gen. Stat. Ann. § 115C-547, North Carolina law requires that both religious schools and qualifying non-public schools comply with certain attendance, health, safety, and minimum testing requirements, see N.C. Gen. Stat. Ann. §§ 115C-548-50, 115C-556-58 (West 2009). Each school must make and maintain annual attendance and disease immunization records for each pupil enrolled and regularly attending classes. See N.C. Gen. Stat. Ann. §§ 115C-548, 115C-556 (West 2009). The school must operate on a regular schedule during at least nine calendar months of the year, excluding reasonable holidays and vacations. See id. The courses of instruction must run concurrently with the term of the public school in the district and extend for at least as long a term. See id. The school must annually administer a nationally standardized test or other nationally standardized equivalent test measuring achievement in certain academic areas to all enrolled students in grades three, six, nine, and eleven. See N.C. Gen Stat. Ann. §§ 115C-549, 115C-550, 115C-557 (West 2009). Furthermore, no church or qualified non-public school that complies with the applicable statutes is subject to any other education-related law except that it must comply with state fire, safety, sanitation, and immunization requirements. See N.C. Gen. Stat. Ann. §§ 115C-554, 115C-562 (West 2009). Students attending private church schools/school of religious charters or qualified non-public schools are not eligible to attend the NCVPS or register for its classes. See http://ncvps.org/about/history/. North Carolina law does not appear to prohibit a private church, religious organization, or non-public school from offering educational instruction online. However, North Carolina law does not appear to specifically allow a non-public school to provide online instruction.

South Carolina:

South Carolina law provides that all parents shall cause their children to regularly attend school from the school year in which the child is five before September 1 until the child attains his or her seventeenth birthday or graduates from high school. See S.C. Code Ann. § 59-65-10(a) (2009). The school the child attends must be (1) a public or private school approved by the State Board of Education; (2) a member school of the South Carolina Independent Schools’ Association or some similar organization; (3) a parochial, denominational, or church-related school; or (4) another program that has been approved by the State Board of Education. See id.

Under South Carolina law, the terms “private school” means a school established by an agency other than the state, which is primarily supported by non-public funds, and is operated by individuals other than publicly-elected or appointed officials. See S.C. Code Ann. § 59-1-110 (2009). An attorney general opinion states that in areas where the compulsory school attendance act is applicable, the State Board of Education possesses authority to establish minimum standards to which private schools must adhere in order to gain Board approval. See 1967-68 S.C. Op. Atty. Gen. No 2585, p. 291. Our thorough review of South Carolina laws and regulations did not reveal minimum standards of attendance for private schools established by the State Board of Education. However, South Carolina law indicates all private schools must report to the county superintendent in which the school is located the number of students receiving instruction, the number of students in regular attendance, the number of teachers employed and, other facts that show the grade and amount of educational work performed in the private school. See S.C. Code Ann. § 59-13-130 (2009). These laws seem to apply to all private schools, including those run by churches, synagogues, religious sects, or other religious organization or institutions.

South Carolina law includes a more limited definition of private school in the context of providing grants to students to attend private or independent elementary or high schools that are not operated or controlled by any church, synagogue, sect or other religious organization or institution. See S.C. Code Ann. § 59-41-10(c) (2009).

In this regard, South Carolina provides that any student who desires to enroll in private school, that is, any non-religious private school, is entitled to receive a grant in the amount equal to the cost per pupil as certified by the governor. See S.C. Code Ann. § 59-41-20 (2009).

As an alternative to public or private schools, parents have three options in South Carolina for home schooling. See S.C. Code Ann. §§ 59-65-40(A); 59-65-45; 59-65-47 (2009). Under the first home schooling option, parents may home school their children if the district board of trustees of the district in which the child resides approves the instruction. See S.C. Code Ann. § 59-65-40(A). To receive the district board of trustees’ approval, a home schooling program must meet the following criteria:

(1) the parent (a) holds at least a high school diploma or the equivalent general educational development (GED) certificate or (b) has earned a baccalaureate degree;

(2) the instructional day is at least four and one-half hours, excluding lunch and recesses, and the instructional year is at least one-hundred eighty days;

(3) the curriculum includes, but is not limited to, the basic instructional areas of reading, writing, mathematics, science, and social studies and in grades seven through twelve, composition and literature;

(4) as evidence that a student is receiving regular instruction, the parent shall present a system for maintaining and maintain the following records for inspection upon reasonable notice by a representative of the school district:

a) a plan book, diary, or other written record indicating subjects taught and activities in which the student and parent engage;

b) a portfolio of samples of the student’s academic work; and

c) a record of evaluations of the student’s academic progress. A semiannual progress report including attendance records and individualized assessments of the student’s academic progress in each of the basic instructional areas specified in item (3) must be submitted to the school district;

(5) students must have access to library facilities;

(6) students must participate in the annual statewide testing program and the Basic Skills Assessment

Program approved by the State Board of Education for their appropriate grade level. The tests must be administered by a certified school district employee either with public school students or by special arrangement at the student’s place of instruction, at the parent’s option; and

(7) parents must agree in writing to hold the district, the district board of trustees and the district’s employees harmless for any educational deficiencies of the student sustained as a result of home instruction.

See § 59-65-40(A). These requirements must be met before parents may teach their children at home. See 1991 S.C. Op. Atty. Gen. 36, 1991 WL 474738, at *2-3 (Jan. 22, 1991). This law further provides that at any time the school district determines that the parent is not maintaining the home school program as required, the district board of trustees shall notify the parent to correct the deficiencies within thirty days. See § 59-65-40(A). If the parents do not correct the deficiencies within thirty days, the district board of trustees may withdraw its approval. See id.

The second home schooling option allows parents to teach their children at home “if the instruction is conducted under the auspices of the South Carolina Association of Independent Home Schools.” S.C. Code Ann. § 59-65-45. Under this type of home schooling, the State Department of Education conducts annual reviews of the standards of the South Carolina Association of Independent Home Schools to ensure that, at a minimum, the parents hold at least a high school diploma or GED, the school year is at least 180 days, and the curriculum includes at a minimum instruction in reading, writing, mathematics, science, social studies, and, in grades seven through twelve, composition and literature. See id.

Under the third home schooling option, South Carolina recognizes an alternate form of home education if the instruction is conducted under the auspices of an association for home schools with no more than fifty members. See S.C. Code Ann. § 59-65-47. This type of home schooling has the same requirements as those under the South Carolina Association of Independent Home Schools, except that additional parent reporting is also required. See id.

South Carolina has established the South Carolina Virtual School Program. See S.C. Code Ann. §§ 59-16-10 to 59-16-80 (2009). Any public, private, or home school student residing in South Carolina, who is twenty-one years of age or younger, is eligible to enroll in the South Carolina Virtual School Program. See S.C. Code Ann. § 59-16-15(B). Students may be awarded a maximum of three online initial credits in a school year, and no more than twelve online initial credits throughout high school, but the governing body of the student’s school district may grant a waiver to exceed the established limit. See S.C. Code Ann. § 59-16-15(C). The student’s local school district transcribes the student’s grade to his or her permanent record and transcript, whereas home school students and private school students receive a certified grade report indicating date, course, and final numeric grade from the South Carolina Virtual School Program or an entity approved by the State Board of Education. See S.C. Code Ann. § 59-16-15(D). Through this program, any student in South Carolina may take some of his or her instruction online. However, it does not appear that such instruction can supplant education through traditional public, private, or home school programs. South Carolina law does not specifically address whether private, church, or home schools can offer or employ online schooling independent of the South Carolina Virtual School Program.

Tennessee:

Under Tennessee law, every parent, guardian, or other legal custodian residing within the state having control or charge of any child between five and seventeen years of age, must cause the child to attend public or non-public school. See Tenn. Code. Ann. § 49-6-3001(c)(1) (West 2009). Tennessee has also established virtual education programs. See Tenn. Code Ann. §§ 49-16-101 to 49-16-105. Participation in a virtual education program by a student is at the discretion of the local education agency in which the student is enrolled or zoned to attend; however, only students who were enrolled in and attended a public school during the previous school year are eligible to participate in a virtual public education program. See Tenn. Code Ann. § 49-16-105. Students who are receiving hospital or homebound instruction also are eligible to participate. See id. Given these provisions, a student may receive part of all of his or her education through virtual education programs. The only local jurisdictions that appear to have instituted virtual education programs in Tennessee are Hamilton County, in which Chattanooga, Tennessee, is located, and Putnam County. See http://hcschools.org/vhs/ (visited Mar. 3, 2010); http://www.ena.com/files/Customer_Success_Stories/CSS10_VirtualLearning_PutnamCoTN.pdf (visited Mar. 3, 2010). The Hamilton County Virtual School (HCVS) offers core courses (Language Arts, Math, Science, Social Studies) to students in kindergarten through eighth grade and all core courses and several elective courses to students in grades nine through twelve. See http://hcschools.org/vhs/ (visited Mar. 3, 2010). This school also offers Virtual Dual Enrollment courses to high school juniors and seniors. See id. Under this program, the HCVS works with a student’s school by reporting grades to his or her school, which is then responsible for assigning credit, as appropriate. See id. Enrollees in the HCVS must obtain the principal’s signature on all registration requests in order to assure that the grades will be accepted for credit by that school. See id. Home-schooled students may have grades sent to their umbrella organizations or other appropriate credit-granting entity, if desired. See id. The Putnam County virtual learning program began more recently in January 2008, and offers courses similar to those offered students in Hamilton County. See http://www.ena.com/files/Customer_Success_Stories/ CSS10_VirtualLearning_PutnamCoTN.pdf (visited Mar. 3, 2010). Thus, at least in Hamilton and Putnam Counties, Tennessee, children may obtain some form of online schooling.

In Tennessee, a “private school” is one that is accredited by, or a member of, an organization or association approved by the Tennessee State Board of Education as an organization accrediting or setting academic requirements in schools. See Tenn. Code. Ann. § 49-6-3001(c)(3)(A)(iii) (West 2009). Students may transfer among public schools or among Category I, II, or III private schools or Category IV non-public schools without loss of credit for completed work. See Tenn. Comp. R. & Regs. § 0520-01-03.03 (2009); Tenn. Comp. R. & Regs. § 0520-07-01.03 (2009). Category I schools are approved individually by the State Department of Education; Category II schools belong to an agency whose accreditation process is approved by the State Board of Education; Category III schools are regionally accredited by one of five accrediting organizations; and Category IV schools are “church related” schools. See Tenn. Comp. R. & Regs. § 0520-02-01.01(1)(a)-(d) (2009).

Tennessee allows home schooling, church-related private schools, and also a hybrid, i.e., home schools affiliated with church-related schools. See Tenn. Code. Ann. § 49-6-3050(a) (West 2009). A church school is defined as a school operated by a denominational, parochial, or other bona fide church organization that meets the standards of accreditation or membership in various organizations. See Tenn. Code. Ann. § 49-50-801 (West 2009). The state board of education and local boards of education cannot regulate the selection of faculty or textbooks or the establishment of a curriculum in church-related schools. See id. at (b); accord Tenn. Comp. R. & Regs. 0520-07-02.05(1) (2009). Tennessee regulations only require religious schools to: (a) comply with all city, county, and state rules and regulations, and codes regarding planning of new buildings, alterations, and safety; (b) comply with all rules and regulations of the Tennessee Department of Health and Environment regarding construction, maintenance, and operation of the school plant; (c) observe all fire safety regulations and procedures promulgated by the Tennessee Fire Marshal’s Office; (d) comply with the requirements that each child enrolled in school be vaccinated against disease; and (e) comply with the requirement that the names, ages, and addresses of all pupils in attendance be reported to the superintendent of the public school system in which the student resides. See Tenn. Comp. R. & Regs. 0520-07-02.05(2) (2009) (citing Tenn. Code Ann. §§ 49-6-3007, 49-6-5001 (West 2009) (regarding vaccination and attendance-reporting)).

Generally, a parent-teacher home school has extensive attendance, testing, and credential requirements. See Tenn. Code. Ann. § 49-6-3050(b). Such parents must:

(1) provide notice to the local director of schools of the parent-teacher’s intent to conduct a home school and submit the name, number, age and grade level of children involved, the location of the school, the curriculum to be offered and the proposed hours of instruction, and the qualifications of the parent-teacher;

(2) maintain attendance records, subject to inspection by the local director of schools, and submission of these records to the director of schools at the end of each school year;

(3) instruct for at least four (4) hours per day for the same number of instructional days as are required by state law for public schools;

(4) possess a high school diploma or GED by the parent-teacher conducting classes in kindergarten through grade eight;

(5) administer state board approved standardized tests required of public school students for the children’s respective grades;

(6) consult with the director of schools if the home school student falls three (3) to six (6) months behind the home school student’s appropriate grade level, based on the standard testing, design a remedial program for any child that falls (6) to nine (9) months behind the home school student’s appropriate grade level; or enroll the child in public school if the home school student falls more than one (1) year behind the home school student’s appropriate grade level; (7) possess at least a baccalaureate degree awarded by a college or university accredited by an accrediting agency or association recognized by the state board of education, by a parent-teacher conducting classes in grades nine through twelve (9-12). A parent-teacher may request an exemption from this requirement from the department on a year-to-year basis;

(8) notify in writing to the local director of schools by a parent-teacher conducting classes in grades nine through twelve (9-12) as to whether a college preparatory or general course of education will be taught to the home school student and a description of the courses to be taught in each year;

(9) submit proof to the local director of schools that the home school student has been vaccinated and has received any other health services or examinations as may be required by law generally for children in this state;

(10) Submit by the home school student entering public schools to the evaluation tests if the local system requires the tests, or the tests required by the state board of education for transfer students; and

(11) in the event of the illness of a parent-teacher, or the inadequacy of the parent-teacher to teach a specific subject, employ a tutor, having the same qualifications as a parent-teacher teaching that grade level or course.

See id. However, a home school affiliated with a church-related school, like a church school, has a much shorter and less stringent list of requirements than a parent-teacher home school, provided that the church-related school:

(1) is accredited by or a member of one of the organizations listed in the statute defining church-related schools at Tenn. Code. Ann. § 49-50-801;

(2) supervises the home school; and

(3) administers standardized achievement tests at the same time such tests are given in the regular day school.

See Tenn. Code. Ann. § 49-6-3050(a)(2)(A).

While the two counties mentioned above provide public online schooling, Tennessee law does not specifically address whether private, church-related, or home schools can independently offer or employ online schooling.

Mary Ann Sloan
Regional Chief Counsel

By_________

Jerome M. Albanese
Assistant Regional Counsel

G. PR 09-096 Status of Florida Virtual Global School as an Educational Institution

DATE: May 5, 2009

1. SYLLABUS

The Florida Virtual Global School (FLVGS), an Internet school located in Florida, provides secondary education in accordance with Florida law. The FLVGS is, therefore, an educational institution for SSA purposes.

2. OPINION

QUESTION PRESENTED

You asked whether Florida Virtual Global School, an internet school located in Florida, can be classified as an educational institution for the purpose of determining entitlement to child's insurance benefits.

Opinion

Based on the information provided, Florida Virtual Global School would be considered an educational institution under the Agency's regulations.

Background

Katherine (Claimant), a resident of Tennessee, currently receives child's insurance benefits on the earnings record of her father Kenneth. Claimant seeks to continue these payments beyond the age of eighteen based on her full-time attendance with Florida Virtual Global School (FLVGS), an internet school located in Florida.

FLVGS is located in Orlando, Florida, and is accredited by the Southern Association of Colleges and Schools (SACS) and the Commission on International and Trans-Regional Accreditation. See Florida Virtual Global School Website, http://www.flvsgs.net/index.php/about_us.html (last visited on April 27, 2009). FLVGS's website also notes that it is a public school funded by Florida state tax dollars. The website states FLVGS is an extension of Florida Virtual School. FLVGS does not issue high school diplomas. Instead, FLVGS will provide transcripts of all course work completed at FLVGS. The materials we received included a letter from the Tennessee Department of Education that stated Tennessee recognizes Florida Virtual School as an appropriate on-line program for educational choices.

The courses offered by FLVGS include: 1) Core Courses such as math, science, social studies, and language arts; 2) Elective Courses such as art, business tech, computer science, foreign language, health, and study skills; 3) Honors Courses; and 4) Advance Placement (AP) Courses. See http://flvsgs.net/index.php/e_solutions/for_educators/course-offerings.html (last visited April 27, 2009).

In her statement regarding school attendance, Claimant said she was scheduled to attend school twenty-five hours per week. Claimant expects to graduate from high school in July 2009. Claimant also indicated she is not being paid by an employer to attend school. Elaine , the principal at FLVGS, signed this document certifying Claimant's statements. Elaine further certified that Claimant's course work lasted at least thirteen weeks.

Discussion

To be eligible for child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits, a claimant eighteen years or older who is not disabled must be a full-time elementary or secondary school student. See Social Security Act (Act) § 202(d)(1)(B)(i); 42 U.S.C. § 402(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2008). An individual can meet this requirement if he or she attends a school that provides elementary or secondary education as determined under the law of the state in which the school is located. See Act § 202(d)(7)(A), (C)(i); 20 C.F.R. § 404.367(a). Because FLVGS is located in Florida, we look to Florida law to determine whether FLVGS qualifies as an elementary and/or secondary school.

Florida statutes recognize five types of educational entities: public schools, private schools, parochial, religious or denominational schools, home education programs, and private tutoring programs. See FLA. STAT. § 1003.01(13) (2008). Florida statutes further state parents of public school students may seek the public school choice option available to their child. See FLA. STAT. § 1002.20(6)(a) (2008). Public school choices include the Florida Virtual School. See id. Because FLVGS is an extension of the Florida Virtual School and Florida recognizes the Florida Virtual School as a public school choice, we conclude FLVGS is a school that provides secondary education under the Act and the Agency's regulations. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(b).

Furthermore, because Claimant resides in Tennessee, we look to Tennessee law to determine if she qualifies as a full-time secondary student. 20 C.F.R. § 404.367(b). According to Tennessee law, a child between the ages of six (6) and seventeen (17) must attend public or non-public school. See TENN. CODE ANN. § 49-6-3001(c) (2008). The evidence provided demonstrates Tennessee recognizes FLVGS as an acceptable school option. Additionally, Claimant attends FLVGS classes twenty-five hours per week. See 20 C.F.R. § 404.367(c) ("To be considered in full-time attendance, your scheduled attendance must be at the rate of at least 20 hours per week"). Moreover, Claimant stated she is not being paid by an employer to attend school. See 20 C.F.R. § 404.367(d) ("You are not being paid while attending the school by an employer who has requested or required that you attend the school"). Claimant also said she expects to graduate from high school in July 2009. See Act § 202(d)(7)(c)(ii) (do not consider education beyond grade twelve for determining whether a child is a full-time student); 20 C.F.R. § 404.367(e) ("You are in grade 12 or below"). Because Claimant attends classes full-time at a school providing secondary education under the law of the state where the school is located, she is in grade 12 or below, and she is not being paid by an employer to attend the school, Claimant met the requirements of 20 C.F.R. § 404.367(a), (b), (c), (d), and (e).

CONCLUSION

Because FLVGS is a school that provides secondary education under the laws of Florida, FLVGS is an educational institution for the purposes of determining Claimant's eligibility for child's insurance benefits. Based on her attendance at FLVGS, Claimant has established that she is a full-time student, she can qualify for child's insurance benefits under the provisions of section 202(d)(1)(B)(i) of the Act.

Mary Ann Sloan
Regional Chief Counsel
By: _____________
Jennifer L. Patel
Assistant Regional Counsel


Footnotes:

[1]

The agency assumes that public schools in the United States are educational institutions (elementary schools, middle schools, junior high schools, and high schools). See Social Security Administration Program Operations Manual System (POMS) RS 00205.250(B)(1). With state or other local jurisdiction approval, certain preparatory and postsecondary schools may provide education at the secondary level or below, and the agency will consider those schools educational institutions. Id. RS 00205.250(A).

[2]

Although the school’s website indicates that it is “registered as a private school by the Texas Department of Education,” we note that there is no Texas Department of Education. The agency that administers the state public education system in Texas is the Texas Education Agency. The Texas Education Agency does not accredit private schools. The Texas Private School Accreditation Commission (TPSAC) administers a voluntary registration and accreditation of Texas private schools. The Southern Baptist Academy is not registered with the TPSAC. (http://www.tepsac.org/search_school.cfm) In addition, the National Association of Private Schools Accreditation Alliance, the organization that accredits The Southern Baptist Academy, is not an approved accrediting agency. (http://www.tepsac.org/agencies.cfm)

[3]

The Southern Baptist Academy is run through a parent corporation, Learning by Grace, Inc. (http://www.learningbygrace.org/) Learning by Grace, Inc. was incorporated in March 2002 in Pennsylvania. The Southern Baptist Academy website is maintained on network servers in Pennsylvania. (http://www.networksolutions.com/whois-search/thesouthernbaptistacademy.org)

[4]

The Southern Baptist Academy is not listed in the Private School Directory that the Florida Department of Education maintains online. (http://www.floridaschoolchoice.org/Information/ PrivateSchoolDirectory) On November 9, 2011, we contacted the Florida Board of Education at 1-800-447-1636. A private school specialist verified that The Southern Baptist Academy had begun registration with the Florida Department of Education in December 2009, but was not currently in compliance with registration. The official indicated that the school had only submitted its annual survey online, but had not yet followed up with a hard copy in the mail. When the Florida Department of Education receives the hard copy of the annual survey, The Southern Baptist Academy will be added to the online directory.

[5]

The documentation included with this opinion request stated that the Florida Department of Education issues high school diplomas earned through The Southern Baptist Academy. However, the Florida Department of Education does not issue high school diplomas for private schools. (http://www.floridaschoolchoice.org/Information/private_schools/faqs.asp)

[6]

The POMS refers to elementary or secondary education schools, grade 12 or below, as educational institutions. See POMS RS 00205.200(A).

[7]

Here, Brianna and Amy are attending high school. Thus, we are addressing whether The Southern Baptist Academy provides secondary education.

[8]

The evidence you provided does not show that Brianna or Amy were in a home school program while taking classes from The Southern Baptist Academy. Although the Southern Baptist Academy website references that it has a home school curriculum, it also describes itself as an accredited teacher-led academy (http://thesouthernbaptistacademy.org/how.php), which “is equivalent to sending [your child] to the private Christian school across town. The Southern Baptist Academy is recognized by colleges and school districts across the country as a private school, just like our ‘brick and mortar’ counterparts.” (http://thesouthernbaptistacademy.org/ accreditation.php).

[9]

The evidence does not show that Brianna and Amy were in an independent study program. Independent study programs are run by local education agencies such as high schools or school districts, in accordance with specific State law requirements, and the credits earned count towards high school graduation. See POMS RS 00205.285(A).

[10]

We note that The Southern Baptist Academy also would not qualify as an educational institution under Arkansas law. See 20 C.F.R. § 404.367(a)(1). The evidence shows that The Southern Baptist Academy is privately owned and is not affiliated with the State of Arkansas. In addition, neither the state of Arkansas nor any local jurisdiction in the State of Arkansas has approved The Southern Baptist Academy to provide education at the secondary level or below. The evidence also shows that the Arkansas Nonpublic School Accrediting Association (ANSAA) has not accredited The Southern Baptist Academy. (http://www.ansaa.com/memberschools.htm) Therefore, The Southern Baptist Academy is not an educational institution under Arkansas law.

[11]

The definition of “private school” includes parochial schools. Fla. Stat. § 1002.01.

[12]

An independent study is also known as off campus or alternative school. POMS RS 00205.285(A).

[13]

Distance learning is the technology, educational process, and independent study program that Arkansas schools use to provide instruction when the student and primary instructor are not physically present at the same time and place. See Arkansas Department of Education Rules Governing Distance Learning” (RGDL), Rule 3.05.

[14]

An electronic copy of the RGDL can be found at http://dlc.k12.ar.us/ (last viewed on December 23, 2011).

[15]

Appropriately licensed or approved instructor is a teacher either licensed to teach the content of the required course in a public school in Arkansas or that the Commissioner of the Arkansas Department of Education approves to teach the content through distance-learning technology. The intent of the approval process is to provide flexibility for the approval of teachers of programs originating from outside Arkansas, exceptionally qualified individuals within the state whom may not meet licensure requirements, or teachers of courses that do not have an appropriate licensure requirement. RGDL, Rule 3.03.

[16]

An adult facilitator is the person responsible for supervising and assisting the students at the receiving site. The adult facilitator must be an adult approved by the school district. See RGDL, Rule 3.01.

[17]

The SSA-1372 Form states that a school official must certify the information the student provided concerning current and prior school attendance and certify that the school’s course of study was at least 13 weeks in duration. The Program Operations Manual System (POMS) clarifies that, for home school situations, the home schooling instructor is the certifying official for full-time attendance on the SSA-1372 Form. See POMS Retirement and Survivors Insurance (RS) 00205.275(C). In this situation, Chan , M.S., the Director of Guidance at Continental Academy, certified the information Z~ provided regarding her current and past attendance and certified the duration information Z~ provided on the SSA-1372 Form, including that she attended a distance learning high school program 20 hours per week.

[18]

See http://www.continentalacademy.com/pace.html; http://www.continentalacademy.com/outreach.html (last viewed November 28, 2011).

[19]

See http://www.continentalacademy.com/seal.html (last viewed November 28, 2011).

[20]

The POMS refers to elementary or secondary education schools, grade 12 or below, as educational institutions. See POMS RS 00205.200(A).

[21]

In this case, Z~ attends high school. Thus, we address only whether Continental Academy provides secondary education

[22]

See Continental Academy Tuition and Fees, http://www.continentalacademy.com/affordable.html (last viewed November 9, 2011).

[23]

As Continental Academy qualifies as an educational institution under 20 C.F.R. § 404.367(a), we need not address the home school or independent study alternatives under 20 C.F.R. § 404.367(a)(1), (2). ---------------


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508205011
PR 08205.011 - Florida - 04/04/2013
Batch run: 04/04/2013
Rev:04/04/2013