TN 10 (09-10)
PR 08205.029 Montana
A. PR 10-132 Validity of Online Schooling in Montana – REPLY
DATE: May 11, 2010
Public online schools in Montana, absent evidence to the contrary, are educational institutions (EI). Online programs must satisfy the state’s high school graduation requirements, meet the learner’s expectations of the school district, and align with state content and performance standards. The state established the Montana Virtual Academy (MVA) to provide distance learning through public school districts, and public schools that offer MVA-approved courses to students are EIs. Absent evidence to the contrary, nonpublic schools in Montana that meet the above requirements are also EIs provided they also comply with applicable local health and safety regulations.
Request a legal precedent opinion if you have reason to question whether a particular structure meets these requirements. The adjudicator should follow the instructions in RS 00205.295 and in GN 01010.815 if a student alleges full-time attendance at an online school in Montana and there is a question about whether it meets the above requirements.
You asked whether Montana recognizes online schools as educational institutions (“EIs”) within the meaning of section 202(d)(7) of the Social Security Act (“the Act”), 42 U.S.C. § 402(d)(7). If so, you asked us to provide the pertinent requirements; if not, you asked us to provide the state’s basic educational requirements for any school.
The State of Montana recognizes public online schools as EIs within the meaning of the Act. Montana does not specifically address whether nonpublic schools may offer online curriculum; however, our view is that nonpublic online schools that satisfy the same requirements established for traditional nonpublic schools qualify as EIs under Montana law. A home school that primarily uses a nonpublic online school or program to instruct students cannot qualify as an EI under state law, since the compulsory enrollment and excuses statute that defines a home school requires a parent to instruct his or her child.
The Program Operations Manual System (“POMS”) defines an EI as “a school that provides elementary or secondary education . . . as determined under the law of the State or other jurisdiction in which it is located.” POMS RS 00205.200. A draft provision regarding online schools, POMS RS 00205.295, provides that a child is a full-time student if (among other things) “[t]he law of the State in which the student resides recognizes online schools as [EIs,]” and “[t]he online school the student attends meets the requirements of State law in which the student lives.” You requested formal legal opinions on these issues for each state in Region VIII.
Requirements for Child’s Benefits
Section 202(d) of the Social Security Act (“the Act”) provides that child’s insurance benefits usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6)-(7). Entitlement to child’s benefits may continue, however, if (among other things) the child is “a full-time elementary or secondary student and ha[s] not attained the age of 19.” Id. § 402(d)(1).
A full-time elementary or secondary student is an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner in light of the standards and practices of the schools involved. See id. § 402(d)(7)(A). An elementary or secondary school is defined as “a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.” Id. § 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a); POMS 00205.200 (defining an EI). As noted above, draft POMS RS 00205.295 requires an adjudicator to determine whether the state where a student resides recognizes online schools as EIs, and whether the online school in question is an EI in that state.
The State of Montana recognizes three types of educational entities: public schools, nonpublic schools (includes parochial, church, religious, or private schools), and home schools. Mont. Code Ann. § 20-5-102.
Public Online Schools
Montana recognizes public online schools as EIs. The legislature established the Montana Virtual Academy (“MVA”) to provide distance learning opportunities through public school districts to all school-age residents. MVA’s online programs and courses must comply with all relevant education and distance learning rules, standards, and policies. Id. § 20-7-1201; see also Mont. Admin. R. 10.55.907. In sum, these online programs and courses must fulfill the state’s high school graduation requirements (discussed below), meet the learner expectations adopted by the school district, and be aligned with state content and performance standards. Online teachers must be licensed and endorsed in Montana or elsewhere in the area of instruction, and if not, the course facilitator must satisfy these qualifications. Id. 10.55.907(1), (2)(b), (3), (3)(a). School districts that receive or provide distance, online, and technology delivered learning programs, as well as other providers or coordinators of these programs to school districts, must comply with additional rules regarding facilitators for courses, as well as teacher load, reporting, and registration requirements. See id. 10.55.907(2)(c), (3), (3)(c)-(d), (4)-(5). Public online schools are per se EIs, unless there is evidence to the contrary. POMS RS 00205.250(B)(1).
Montana’s compulsory enrollment and excuses statute provides that a child age seven or older must attend public school, unless enrolled in a nonpublic school or a home school that complies with state law, “until the later of the following dates: (a) the child’s 16th birthday; or (b) the date of completion of the work of the 8th grade.” Mont. Code Ann. § 20-5-102(1); see also id. § 20-5-102(2)(e). A nonpublic school includes a parochial, church, religious or private school. Id. § 20-5-102(2)(e).
Traditional nonpublic schools must: 1) maintain attendance and immunization records; 2) provide at least the minimum aggregate hours of pupil instruction required by state law (a minimum of 1,080 hours for grades four through twelve and 1,050 hours for graduating seniors); 3) be housed in a building that complies with applicable local health and safety regulations; and 4) provide an organized course of study that includes instruction in the subjects required of public schools as a basic instructional program (see below). Id. §§ 20-5-109(1)-(4), 20-1-301. Id.
A basic educational program for ninth through twelfth graders requires at least 20 units of coursework that enables all students to meet content and performance standards. Minimum offerings must include at least the following: four units of English language arts, three units of mathematics, three units of science, three units of social studies, two units of vocational/technical education, two units of arts, one unit of health enhancement, two units of world languages, and two units of electives. Mont. Admin. R. § 10.55.904.
While Montana law does not specifically provide that a nonpublic school may offer online curriculum, the state does not prohibit it either. Further, the state specifically recognizes public online schools, indicating general acceptance of online instruction. Therefore, we see no reason to concluded that a nonpublic online school that satisfies all of the above requirements is not an EI under Montana law. Cf. POMS PR 07905.029 (Status of the Rocky Mountain Christian High School as an Educational Institution).
Montana parents who home school are solely responsible for “the time, place, and method of instruction.” Mont. Code Ann. § 20-5-111(3). However, the compulsory enrollment and excuses statute specifically provides that “a home school is the instruction by a parent of the parent’s child, stepchild, or ward in the parent’s residence . . . .” Id. § 20-5-102(2)(e) (emphasis added). Since a parent must instruct his or her own child, a home school that uses a nonpublic online school to provide instruction cannot qualify as an EI under Montana law. See Memorandum, Is an Internet High School Based in Georgia an Educational Institution for an Ohio Resident?, RCC V (Calvert/G~) to ARCMOS, SSA, Sept. 8, 2008 (concluding that the private online school did not satisfy either state’s home school requirement that a parent primarily direct and provide instruction).
Montana recognizes public online schools as EIs within the meaning of the Act. Absent evidence to the contrary, public schools that provide MVA approved courses to students are per se EIs. While Montana does not specifically address whether a nonpublic school may offer online enrollment, a nonpublic online school that meets all of the above requirements for traditional nonpublic schools should be considered an EI under state law. A home school that uses a private online school to provide instruction cannot qualify as an EI under Montana law, however, since the compulsory enrollment and excuses statute requires a parent who home schools to instruct his or her child.
Donna L. C~III
Acting Regional Chief Counsel ,
Yvette G. K~
Assistant Regional Counsel
We note that the draft POMS provisions stands in tension with the Act, which provides that a school’s status is determined under the law of the state where the school is located (not the state where the student resides). See 42 U.S.C. § 402(d)(7)(C)(i). If this reflects a policy decision based on the unique nature of online schools, we recommend a revision of the draft POMS language to include some explanation of this policy choice. Alternatively, we recommend a revision of the POMS to be consistent with the Act.
The most logical intent of this provision, which also applies to home schools, appears to be to ensure the safety of students. Therefore, we interpret this provision to mean that Montana online students must receive instruction in a building or home that complies with applicable local health and safety regulations. We recommend you request a formal legal opinion should you question whether a particular building or home satisfies these requirements.
See POMS PR 08005.029 (Requirements for Home Schooling in Montana) for a list of the other home school requirements.