You have requested our opinion as to whether the Missouri "Virtual Instruction Program"
(or, "MoVIP"), a new state Internet teaching program, qualifies under section 202(d)(7)
of the Social Security Act (the Act), 42 U.S.C. § 402(d)(7), as a school that provides
elementary or secondary education in accordance with the laws of the state. We believe
that the new MoVIP program satisfies Social Security criteria, either used alone or
in conjunction with an otherwise-qualified school or home school program, to confer
upon a student otherwise complying with SSA regulations, the status of a student in
full-time attendance (FTA) at an educational institution.
The MoVIP was signed by the Governor of Missouri on June 12, 2006, and was published
at Mo. Rev. Stat. § 161.670 (2007). It provides that the state board of education
is to establish a "virtual public school," for the school year beginning in 2007.
The MoVIP is expected to "offer instruction in a virtual setting using technology,
intranet, and/or Internet methods of communication." See Mo. Rev. Stat. § 161.670.1. A "full-time equivalent student" is a student who has
"successfully completed the instructional equivalent of six credits per term." Each
"virtual course shall count as one class and shall generate that portion of a full-time
equivalent that a comparable course offered by the school district would generate."
See Mo. Rev. Stat. § 161.670.2. In addition, the virtual instruction program must comply
with all laws and regulations applying to schools. See Mo. Rev. Stat. § 161.670.4. Students participating in the program are guided in their
studies by Missouri certified teachers, and courses are to be delivered through use
of the Internet, including streaming audio and video, e-mail, chat rooms, bulletin
boards, and so on. Teachers are to directly communicate with students via telephone,
e-mail, instant messaging, and discussion forums. See "MoVIP Frequently Asked Questions," http://dese.mo.gov/divimprove/curriculum/movip/faq.html .
You recently received an inquiry from Curt F~, Ph.D., Director of Virtual Education,
Missouri Department of Elementary and Secondary Education, regarding the MoVIP. He
stated the first school term under the program was to begin in August 2007. You asked
for a precedential opinion regarding whether students using the MoVIP are in full-time
attendance in an educational institution, pursuant to 42 U.S.C. § 402(d) (2007).
Analysis and Opinion
Section 202(d) of the Social Security Act provides that child's insurance benefits
usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6) and (7). Entitlement to child's benefits may continue, however,
if (among other things) the child "was a full-time elementary or secondary student
and had not attained the age of 19." See 42 U.S.C. § 402(d)(1). A full-time elementary or secondary student is defined as an
individual who is in full-time attendance as a student at an elementary or secondary
school, as determined by the Commissioner in the light of the standards and practices
of the schools involved. See id. at § 402(d)(7)(A). An elementary or secondary school is defined as "a school which
provides elementary or secondary education, respectively, as determined under the
law of the State or other jurisdiction in which it is located." Id. at § 402(d)(7)(C)(i). See also POMS RS 00205.200 (defining "educational institution). Except for two specific exceptions noted in
the Social Security regulations, the student must be scheduled to attend school for
at least 20 hours per week in order to be considered in full-time attendance. See 20 C.F.R. § 404.367(c) (2007).
In order to qualify for benefits, a full-time student may attend a school that provides
elementary or secondary education as determined under the laws of the state where
the school is located; or study as a home school student, a correspondence student,
or an independent study. See 20 C.F.R. § 404.367(a). While several of these programs would provide an adequate
framework for analyzing the MoVIP, the program seems most similar to an independent
study program. Agency regulations provide that a student qualifies for benefits if
he/she is participating in "an independent study elementary or secondary education
program in accordance with the law of the State or other jurisdiction in which you
reside which is administered by the local school or school district/jurisdiction."
20 C.F.R. § 404.367(a)(2). See also POMS RS 00205.285 ("Independent study programs are run by local education agencies . . . in accordance
with specific State law requirements, and the credits earned count toward high school
graduation. The programs involve periodic teacher contact, direction, and testing
on campus, with the student making academic progress generally through independent
study at home."). As noted above, the MoVIP program is conducted through regular contact
with certified teachers who provide online lectures and personal direction, the students
are expected to complete all required state testing, and most academic progress is
expected to be the result of study at home. See Mo. Rev. Stat. § 161.670.4. The program is also meant to work smoothly as a part
of other education programs, including regular school attendance. See "Greetings from Missouri's K-12 Virtual Instruction Program (MoVIP)," http://dese.mo.gov/divimprove/curriculum/movip/gen_info.html (students may wish to participate in MoVIP to expand on home or private school programs,
or if a particular topic is not offered at the student's school of regular attendance).
Because a student participating in MoVIP is complying with state law, he or she is
participating in an independent study "educational institution."
While MoVIP is an educational institution, a student using the program must still
be in "full-time attendance" in order for it to meet the federal standard. In other
words, having determined that MoVIP is an "educational institution," the child's attendance
must still be assessed to determine if he is attending at least 20 hours per week.
The POMS state that each student must meet both state standards for full-time schooling,
as well as the Commissioner's 20-hour per week standard. See 20 C.F.R. § 404.367(b) ("You are in full-time attendance in a day or evening noncorrespondence
course of at least 13 weeks duration and you are carrying a subject load which is
considered full-time for day students under the institution's standards and practices");
POMS RS 00205.285. First, a student attending MoVIP for all of her schooling is considered by the state
to be full-time if she carries "the instructional equivalent of six credits per term."
See Mo. Rev. Stat. § 161.670.2. Therefore, in order to meet the state standard, the factfinder
will have to assess whether the student is receiving the required six credits. The
student must also be attending the school 20 hours per week. See 20 C.F.R. § 404.367(b) (2007). Because of the demands of obtaining 6 credits, it appears
likely that any MoVIP student will also be receiving the required 20 hours of instruction
if she is taking the required 6 credits, but both the regulations and POMS state that
such an analysis must be undertaken.
In addition, it appears that the MoVIP envisions children using the school either
for all of their schooling, or in combination with regular school attendance or a
home school program. Therefore, separate analysis may be required for each type of
schooling involved in the student's education, in order to determine if the requisite
20 hours of instruction are present. See 20 C.F.R. § 404.367(c).
In summary, based on the information provided, the claimant enrolled in 6 credits
of MoVIP and attending 20 hours per week would be a full-time student for the purposes
of receipt of Title II benefits.
While it is reasonable to conclude that most students attending Ombudsman Learning
Center can be considered full-time students, if there are cases in which there are
questions as to the validity of a student's "outside" activities, please request further
Frank V. S~ III
Stacy A. M~
Assistant Regional Counsel