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
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