Whether Breana M~ can be considered a full-time secondary school student as defined
under section 202(d)(7) of the Social Security Act.
As set forth below, the States of Washington, Oregon, and Idaho, specifically recognize
online educational experiences as educational institutions under state law. The State
of Alaska only recognizes online schools as correspondence study programs. The educational
institution requirements for each state are set forth below.
Breana L. M~ received child’s benefits (CIB) on the record of Patrick M~ from September
2001 until December 25, 2009, when she turned eighteen and her benefits were terminated.
However, Ms. M~ claims that she is a full-time student at a secondary school, and
thus, her benefits should continue. Ms. M~ has indicated that she is studying for
her high school diploma using the online school e-Tutor. She is currently taking courses
in geometry, U.S. history, English, chemistry, and all-star cheerleading to satisfy
her physical education credit. According to Ms. M~, she spends between 35-40 hours
a week on her studies, and she must attend class for a minimum of 182 days a year.
Ms. M~ is expected to receive her high school diploma in May 2011. Ms. M~ is a New
York State resident.
e-Tutor (http://www.e-tutor.com) is an online service that offers “lesson modules” at the primary and secondary school
levels. e-Tutor offers a diploma if a child petitions in his or her “junior year,”
is enrolled for the entire twelfth-grade year, and accumulates 24 credits. e-Tutor
is a product of Knowledge Headquarters, Inc. e-Tutor claims accreditation from the
North Central Association Commission on Accreditation and School Improvement (NCA
CASI). NCA CASI is a division of AdvancEd. Although e-Tutor and Knowledge Headquarters,
Inc. both represent on their websites that they are based in Chicago, Illinois, AdvancEd
lists an address for e-Tutor in Boulder, Colorado.
Section 202(d)(7)(A) of the Social Security Act defines “full-time elementary or secondary
school student” as an individual who is in full-time attendance as a student at an
elementary or secondary school as determined in accordance with regulations prescribed
by the Commissioner. The Social Security Act states at section 202(d)(7)(C)(i) that
an “elementary or secondary school” is a school which provides elementary or secondary
education, respectively, as determined under the law of the State or other jurisdiction
in which it is located.
The regulations explain at 20 C.F.R. § 404.367(a) that a person is a “full-time elementary
or secondary school student” if he or she attends a school that provides elementary
or secondary education, respectively, as determined under the law of the State or
other jurisdiction in which it is located. It states further that participation in
certain programs also meet the requirements of paragraph (a). For example, a person
is a full-time elementary or secondary school student if he or she is instructed in
elementary or secondary education at home in accordance with the home school law of
the State or other jurisdiction in which he or she resides. 20 C.F.R. § 404.367(a)(1).
In addition, in order to be considered a “full-time elementary or secondary school
student”, the student must be in full-time attendance in a day or evening noncorrespondance
course of at least 13 weeks duration and is carrying a subject load which 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 home-schooled, he or she must be carrying a subject
load which is considered full-time for day students under standards and practices
set by the State or other jurisdiction in which he or she resides. Id.
The regulations provide at 20 C.F.R. § 404.367(c) that a student is in full-time attendance
if his or her scheduled attendance is at least 20 hours per week, unless certain exceptions
The POMS explains at RS 00205.200A that a educational institution (EI) 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. With regard to home schooling, the POMS states at RS 00205.275 that CIB may be payable if the law of the State in which the home school is located
recognizes the home school as an educational institution.
The statute provides that an “elementary or secondary school” is a school that provides
elementary or secondary education, respectively, as determined under the law of the
State in which it is located. 42 U.S.C. § 402(d)(7)(C)(i). However, the regulations
state that a child may be a full-time elementary or secondary school student if he
or she is instructed in elementary or secondary education at home in accordance with
the home school law of the State in which he or she resides. 20 C.F.R. § 404.367(a)(1).
Difficulty may arise when it is not clear whether a child is attending a home school
or is primarily receiving education through the institution. Where a student resides
in the same state in which the educational institution is located, the distinction
is not particularly problematic, as the same state’s law would guide the Agency in
determining whether the institution is an elementary or secondary school and whether
the child is attending a home school. However, in cases like those at issue here,
the institution is located in one state (or multiple states) and the child is in a
different state. The question becomes whether the institution is an elementary or
secondary school in the state or states in which it is located, or whether the child’s
education through the Internet courses constitutes home schooling in the state in
which the child lives.
Is e-Tutor an elementary or secondary school in Illinois, the state in which it is
Because e-Tutor appeared to be located in Illinois, we obtained an opinion on the
issue of whether e-Tutor is an elementary or secondary school in Illinois from OGC
Region V (Region V). Region V noted that e-Tutor is potentially located in two states,
Illinois and Colorado. The web site for e-Tutor and its parent, Knowledge Headquarters,
Inc, indicate that they are located in Chicago, Illinois. However, AdvancEd lists
an address in Boulder, Colorado for e-Tutor. Region V contacted Martha A~, Ph.D.,
the president of e-Tutor and Knowledge Headquarters, Inc. informally and she stated
that e-Tutor is operated from her house in Boulder, Colorado, but also had a small
office located in Illinois.
However, Region V noted that the question of where a purported educational institution
is located is problematic when the organization does not provide services at a physical
location, but rather does so through the Internet. When services are provided on-line,
the student, teachers, and physical presence of the organization could all be located
in different states. Physical presence of any one element is therefore not a clear
indicator of an organization’s location. Thus Region V also looked at the state of
incorporation of the parent company, Knowledge Headquarters, Inc. The Illinois Secretary
of State lists Knowledge Headquarters, Inc. as a business incorporated in Illinois. The
Colorado Secretary of State indicates that Knowledge Headquarters, Inc., is a foreign
corporation under Illinois’ jurisdiction. Region V therefore believed it reasonable
to conclude that e-Tutor is located in Illinois. As additional support for this conclusion,
Dr. A~ indicated that the curriculum for e-Tutor is aligned to the goals and objectives
established by the Illinois Board of Education.
Region V next turned to the issue of whether under Illinois law, e-Tutor is an elementary
or secondary school. Region V noted that Illinois law does not directly address whether
an institution is an elementary or secondary school. Rather, the issue of whether
a student is attending a school in Illinois is addressed under article 26 of the Illinois
School Code (105 Ill. Comp. Stat. Ch. 5) which concerns compulsory school attendance.
The code provides that, with certain exceptions, whoever has custody or control of
a child between the ages of seven and seventeen must cause the child to attend public
school. 105 Ill. Comp. Stat. 5/26-1. The only exception to this rule applicable
to this case is that a child is not required to attend public school if she is attending
a “private or parochial school where children are taught the branches of education
taught to children of corresponding age and grade in the public schools, and where
the instruction of the child in the branches of education is in the English language”. Id. This
provision was first interpreted in People v. Levisen, 90 N.E.2d 213 (Ill. 1950), which
concerned whether the parent of a home schooled child violated the code. The court
explained that home education could be considered a “private school” if the person
with custody or control of the child shows that he or she had in good faith provided
an adequate course of instruction in the branches of education taught to the children
of corresponding age and grade in public schools. Id. at 215. The court stated that
the burden is not satisfied if the evidence fails to show a type of instruction and
discipline having the required quality and character. Id.
Region V believed that there is sufficient evidence to conclude that e-Tutor is an
educational institution because it offers a course of instruction similar to the branches
of education taught to children in Illinois public schools. e-Tutor’s website alone
does not provide enough information to reach this conclusion. For example, Ms. M~
states that she is taking United States history, but e-Tutor’s website provides no
specific information regarding what material that specific course covers. Region
V therefore asked Dr. A~ how e-Tutor’s curriculum compared with an Illinois public
school education. Dr. A~ stated that she based the e-Tutor curriculum on the goals
and objectives developed by the Illinois State Board of Education. Presumably, Dr.
A~ was referring to the Illinois Learning Standards. According to the Illinois State
Board of Education, the Illinois Learning Standards are a framework describing what
types of skills and knowledge a student should have at each grade level in seven core
areas of study. If e-Tutor’s curriculum is based on the Illinois Learning Standards,
it is reasonable to conclude that e-Tutor provides an adequate course of instruction
in the branches of education taught to the children of corresponding age and grade
in public schools. The curriculum would therefore satisfy the standard described
in Levisen, and it would be reasonable to conclude that e-Tutor is an educational
institution under Illinois law.
However, Region V noted that it is not clear that an individual’s “attendance” at
e-Tutor would meet the federal requirements for full-time attendance. The regulations
at 20 C.F.R. § 404.367(c) specify that a student is in full-time attendance if his
or her scheduled attendance is at least 20 hours per week, unless certain exceptions
apply. The POMS also states that “[s]cheduled attendance must be at the rate of at
least 20 hours per week.” POMS RS 00205.310. Ms. M~ claims to spend 35 to 40 hours per week on her studies on various subjects. e-Tutor’s
website states that students are expected to study approximately 20 hours per week,
but the website provides little detail regarding whether, or how, this time is tracked. The
website explains that “attendance is not enforced” (http://www.e-tutor.com/comparison.php). It states that a student, at a minimum, is required to login five times a week,
but does not state how long the student must remain online. Region V asked Dr. A~
informally for additional information regarding how much time a student must spend
on her studies. Dr. A~ stated that from fourth grade onward, students are expected
to complete over 200 “lesson modules” over a ten-month school year. She explained
that each module should take between an hour and an hour-and-a-half to complete and
that a student would probably spend 20 to 30 hours online per month. However, she
said that the student would spend additional time working offline under the guidance
of an adult, such as a parent. Dr. A~ stated that a student could be expected to
spend an additional 20 to 30 hours working offline each month. It is unclear how
much of that time is to be spent in direct instruction from an adult. Given that
each month contains approximately 4.35 weeks, this would mean that a student could
be expected to work between roughly 9 and 14 hours per week. Region V re-contacted
Dr. A~ to verify that these numbers are accurate and she responded that she told parents
that their children should spend about four-and-a-half to five hours per day on their
studies and that some of this time was guided by the parents. She stated that each
day a child studied was equivalent to a condensed traditional school day. It appears
that Dr. A~ expects that the weekly schedule of a student in the program would be
roughly the same as in a traditional school, and that only the school day would be
shorter. It appears that e-Tutor may generally expect students to work five days
a week for a total of between 22.5 and 25 hours per week. We recommend that the Agency
develop this issue formally. If the Agency finds that e-Tutor does not require at
least 20 hours of scheduled attendance, a finding of full-time attendance may be justified
if attending this school is the only reasonable alternative for her, or if her medical
condition precludes 20 hours of attendance. See 20 C.F.R. § 404.367(c)(1)-(2).
Does Ms. M~’s education through the Internet courses constitute home schooling in
New York, the state in which she lives?
Alternatively, Ms. M~ may be considered a full-time student under the home schooling
standards if her work on e-Tutor meets the applicable requirements under New York
law for home schooling. In New York, parents have the right to educate their children
elsewhere than in public schools. Zorach v. Clauson, 303 N.Y. 161, 173 (1951) (citing
Pierce v. Society of Sisters, 268 U.S. 510 (1925)), aff’d, 343 U.S. 306 (1952). New
York defines a person in a parental relationship as an individual’s “father or mother,
by birth or adoption, his step-father or step-mother, his legally appointed guardian,
or his custodian.” N.Y. Educ. Law § 3212(1). Children may be home schooled in New
York under N.Y. Educ. Law. § 3204(1) which provides that a child “may attend a public
school or elsewhere.” New York state law states that “[i]nstruction given to a minor
elsewhere than at a public school shall be at least substantially equivalent to the
instruction given to minors of like age and attainments at the public schools of the
city district where the minor resides.” N.Y. Educ. Law. § 3204(2). Home schooled children
must generally attend instruction for at least as many hours and within the hours
specified for public schools. N.Y. Educ. Law § 3210(2). Local public school boards
of education, through the superintendent of schools, are responsible for determining
whether home school instruction is substantially equivalent in time and quality to
that provided by public school. Matter of Adam D., 132 Misc. 2d 797, 801-02 (N.Y.
Fam. Ct. 1986).
New York’s home school regulations (N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10)
require the parent to:
Submit a notice of intent to home school to the district superintendent by July 1
(the beginning of the school year) annually, or within 14 days of starting home schooling
during the middle of a school year. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(b).
File an individualized home instruction plan (“IHIP”) with the Superintendent of Schools
that complies with certain requirements set forth in Section 100.10(c-d) of the education
regulations. An IHIP must contain, among other things, 1) the child’s name, age, and
grade level; 2) a list of the syllabi, curriculum materials, textbooks, or a plan
of instructions; 3) dates for submission of quarterly reports; and 4) the name of
the person(s) giving instruction. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(c-d).
Provide instruction in certain subjects in certain years, according to requirements
set forth in Section 100.10(e) of the education regulations and N.Y. Educ. Law §§
801, 804, 806, and 808. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(e).
Ensure that children attend the substantial equivalent of 180 days of instruction
each year, totaling 900 hours per year for children in grades one through six and
990 hours per year for children in grades seven through twelve. N.Y. Comp. Codes R.
& Regs. Tit. 8, § 100.10(f). Parents must maintain records of attendance and make
them available to the school district on request. Id.; see also N.Y. Educ. Law § 3212(d)
(stating that a person in parental relationship must be able to furnish proof that
the individual is attending required instruction elsewhere).
File quarterly reports giving the number of hours of instruction during the quarter,
a general description of the material covered in each subject, and a grade or narrative
evaluation in each subject (the superintendent has no authority to judge the adequacy
of these reports). N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.10(g).
File an annual assessment including 1) achievement test results, OR 2) alternative
evaluation by any of the following: a) a certified teacher, b) a home instruction
peer group review panel, or c) or other qualified person. N.Y. Comp. Codes R. & Regs.
Tit. 8, § 100.10(h)..
Here, Ms. M~ has not established that the e-Tutor program meets the legal requirements
for home schooling under New York law. Among other things, there is no indication
that she submitted a notice of intent to home school to the district superintendent
or that she filed an IHIP with the Superintendent of Schools. Further, she has not
submitted evidence that she is provided instruction in certain subjects in certain
years. Finally, she has not provided copies of attendance records, quarterly reports,
or annual assessments, to show she is in compliance with New York Law. Thus, based
on the given information, we cannot conclude that Ms. M~’s work on e-Tutor meets the
applicable requirements under New York law for home schooling.
In sum, it is our opinion that E-Tutor should be considered an educational institution
for SSA purposes based on the POMS and SSA regulations. However, it is not clear that
Ms. M~ is a full-time student of e-Tutor and we believe that additional development
is warranted on this issue. Further, Ms. M~ has not satisfied the applicable requirements
for a home school program under New York law. Thus, based on the information currently
in the file, Ms. M~ cannot be considered a full-time secondary school student as defined
under section 202(d)(7) of the Social Security Act.
Stephen P. C~
Regional Chief Counsel
Sheena V. B~
Assistant Regional Counsel