TN 10 (09-10)
PR 08205.037 North Dakota
A. PR 10-133 Validity of Online Schooling in North Dakota – REPLY
DATE: May 11, 2010
North Dakota recognizes approved public online schools as educational institutions (EI). Absent a waiver, the Superintendent of Public Instruction must approve any public or nonpublic school in the state. The state provides a public online high school through the North Dakota Center for Distance Education (NDCDE).
Absent evidence to the contrary, public schools that offer online courses through NDCDE are EIs under state law. To determine whether a particular nonpublic online school has received either a waiver or approval, contact the Administrative Assistant for Approval and Accreditation for the North Dakota Department of Public Instruction. The adjudicator should follow the instructions in RS 00205.295 and GN 01010.815 if a student alleges full-time attendance at a public online school other than the NDCDE or at a nonpublic online school that does not have either a waiver or approval.
You asked whether North Dakota 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 North Dakota recognizes online schools as EIs within the meaning of the Act. Absent a waiver, the Superintendent of Public Instruction (“the superintendent”) must approve any public or nonpublic school in the state. State law requires nonpublic high schools that use telecommunications or other electronic means to deliver curricular programs and that have an enrollment of 50 or fewer students to undergo additional approval procedures. Thus, approved nonpublic online schools are EIs within the meaning of the Act. Moreover, any person who provides courses electronically to a student in North Dakota must obtain prior approval from the state. A home school under the supervision of a parent that uses a state-approved nonpublic online school or that uses state-approved electronic courses to instruct qualifies as an EI under state law.
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, the draft POMS provision, RS 00205.295, requires an adjudicator to determine whether the state where a student resides recognizes online schools as educational institutions, and whether the online school in question is an educational institution in that state.
North Dakota recognizes three types of education entities: approved public schools, approved nonpublic schools, and home education programs. See N.D. Cent. Code §§ 15.1-20-01, -02.
Public Online Schools
The State of North Dakota recognizes public online schools as EIs. The state is required to provide through the North Dakota Center for Distance Education (“NDCDE”), a public online high school, a complete distance education curriculum that must be approved by the superintendent. See id. § 15-19-01. The center offers full-time online enrollment and issues an accredited diploma; however, students under age sixteen are required to take NDCDE online classes at the public school they attend. See NDCE, https://www.ndcde.org/Home.aspx (last visited March 5, 2010). Absent evidence to the contrary, public schools that offer online courses through NDCDE are per se educational institutions under state law. See POMS RS 00205.250(B)(1).
Approved Nonpublic Schools
North Dakota’s compulsory attendance law requires a person having responsibility for a child between the ages of seven and sixteen ensure the child attends a public school for the duration of each school year. Id. § 15.1-20-01(1). A child who attends “an approved nonpublic school” for the same length of time as public schools are in session or a child participating in a home education program is exempt from the state’s compulsory attendance law. See id. §§ 15.1-20-01(3), 15.1-20-02 (a), (e).
Absent a waiver, the superintendent must annually approve all public and nonpublic schools in the state and may do so only if a school meets the following requirements: (1) each classroom teacher is licensed or approved to teach by the education standards and practices board;
(2) unless granted an exception, each classroom teacher teaches only in those course areas or fields for which the teacher is licensed or has received an exception; (3) students are offered all subjects required by law; (4) the school is in compliance with all local and state health, fire, and safety laws; and (5) the school has conducted all criminal history record checks required by law. Id. § 15.1-06-06; see also id. § 15.1-06-08 (rules governing waiver).
In addition to meeting all statutory requirements regarding subjects to be taught and length of school year, a nonpublic high school with an enrollment of 50 or fewer students must:
(1) ensure curricular programs delivered by telecommunications or other electronic means are prepared by individuals holding at least baccalaureate degrees and delivered in the presence of an individual who holds a North Dakota professional teaching license or who meets or exceeds the average cutoff scores of states that have normed the national teacher's examination; (2) the school employs at least one state-licensed high school teacher to serve in a supervisory capacity for each twenty-five students; (3) the average composite scholastic achievement test scores of students enrolled in the school or the students’ scores achieved on comparable standardized tests meet or exceed the national average test scores; (4) and the school and its employees are governed by a board of directors that includes parental representation.
Id. § 15.1-06—07. Any approved online private school presumably meets all of the applicable requirements noted above and, therefore, is an EI within the meaning of the Act. To determine whether a particular nonpublic online school has been approved by the state or has received a waiver, we recommend you contact Paula M~, Approval & Accreditation, Administrative Assistant, North Dakota Department of Public Instruction.
Electronic Course Delivery Approval Process
Before “a person” may provide courses electronically to a student in North Dakota, the person must obtain annual approval from the superintendent of public instruction, who must verify that: all courses offered by the person in the state are aligned with the state content and performance standards, and if standards do not exist for a particular course, the criteria must ensure that the course content is sufficiently challenging for students, given the grade level at which it is offered; all teachers involved in the electronic delivery of a course meet or exceed the qualifications and licensure requirements placed on the teachers by the state in which the course originates; and all students receiving a course electronically have ongoing contact time with the teachers of the course. Id. § 15.1-21-15. While the statute specifically provides the approval process does not apply “to a course provided electronically between approved schools in th[e] state," id. § 15.1-21-15(3), this exemption does not cover courses provided electronically by an approved private online school to home-schooled students.
Home Education Programs
Currently, home education “means a program of education supervised by a child’s parent . . . .” Id. § 15.1-23-01 (effective through July 31, 2011). Since the statute does not specifically require a parent to instruct his or her child, we believe a home school that uses a private online school or curriculum approved by the superintendent to instruct qualifies as an EI under state law, provided instruction occurs under the supervision of a parent. Similarly, the statute establishing the center for distance education specifically provides that home education students may enroll and take courses offered through the center “in their learning environment under the supervision of a parent.” Id. § 15-19-01.
A home school that uses an approved private online school or curriculum to provide instruction under the supervision of a parent must satisfy the state’s home education program requirements, which are set forth in POMS RS DEN 00205.275 and POMS PR 08005.037. We note, however, that the parent qualifications section should be corrected to reflect that effective July 1, 2009, through July 31, 2011, a parent does not have to be certified to teach in North Dakota or have a baccalaureate degree to supervise home education. See N.D. Cent. Code § 15.1-23-03 (effective through July 31, 2011). Through July 31, 2011, a parent who has only a high school diploma or general education development certificate (“GED”) may supervise home education without being monitored. Id. Until August 1, 2011, only a parent without a high school diploma or GED is required to be monitored. Id. The POMS currently reads as if a parent with a high school diploma or GED must be monitored.
Effective July 1, 2009, the legislature amended the required units approved public and nonpublic high schools must make available to students. (Home education programs must also provide these course offerings.) The amendments clarified the following: that English language arts must be “from a sequence that includes literature, composition, and speech”; that one unit of math must be algebra II and another unit must be a course “for which algebra II is a prerequisite”; that science must include one unit of physical science and one unit of biology; that history must include one unit of problems of democracy or one-half unit of Unites States government and one-half unit of economics, in addition to one world history unit and one United States history unit; that the foreign language requirement may be satisfied with a Native American language; that students must take one unit of an advanced placement course or one unit of a dual-credit course; and that the career and technical education units must be “from a coordinated plan of study recommended by the department of career and technical education and approved by the superintendent of public instruction.” Id. § 15.1-21-01(1); see also 2009 S.D. Sess. Law, ch. 175, § 14. Effective August 1, 2007, the legislature also required that “each public and nonpublic high school . . . make available to each student, at least once every two years, one-half unit of North Dakota studies, with an emphasis on the geography, history, and agriculture of th[e] state.” N.D. Cent. Code § 15.1-21-01(2); see also 2007 S.D. Sess. Law, ch. 174, § 2. POMS RS DEN00205.275 and POMS PR 08005.037 should be updated to reflect these and the above changes.7
The State of North Dakota recognizes approved online public and nonpublic schools as EIs within the meaning of the Act. An otherwise qualified home school under the supervision of a parent that uses a state-approved nonpublic online school or electronic curriculum to instruct qualifies as an EI under state law. As noted above, we recommend you contact the North Dakota Department of Public Instruction to verify whether the superintendent has approved a particular online school or electronic curriculum.
Donna L. C~
Acting Regional Chief Counsel Region VIII
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 North Dakota Supreme Court has held that parents who educate their children at home may elect between the private school exception and the home-based exception to the compulsory attendance law. Birst v. Sanstead, 493 N.W.2d 690, 692 (1992).
Section 15.1-06-06 does not specifically mention length of school year; however, the compulsory attendance exception requires that a child attend a nonpublic school for the same period of time that public schools are in session.
While there may be some question as to whether the state would allow students under the age of sixteen to take online courses from home, we do not think it necessary to resolve this question, as it is not relevant to this opinion.
We interpret “a person” to include an individual who owns, is employed by, or is otherwise acting on behalf of a private online school or curriculum provider.
Beginning August 1, 2011, the program of education must take place in the child’s home. N.D. Cent. Code § 15.1-23-01 (effective after July 31, 2011).