TN 8 (09-10)

PR 08205.046 South Dakota

A. PR 10-136 Validity of Online Schooling in South Dakota – REPLY May 11, 2010

DATE: May 11, 2010

1. SYLLABUS

South Dakota recognizes public online schools as education institutions (EI). The state’s online school program is the South Dakota Virtual School (SDVS). See About SDVS, at http://www.sdvs. k12.sd.us/Providers/About.aspx . An online private school that is accredited by the Secretary of Education is an EI. In order to determine whether a specific online school is accredited, contact an accreditation specialist with the South Dakota Department of Education. Absent evidence to the contrary, public schools that provide South Dakota Virtual School (SDVS) approved courses to students and private online schools that are accredited by the Secretary of Education are EIs. Unaccredited private online schools should also be considered EIs if the schools provide instruction for an equivalent period of time as in the public schools in the basic skills of language arts and mathematics and comply with all other applicable laws. If a student alleges full-time attendance (FTA) at an online school other than the SDVS or an online private school that is accredited by the Secretary of Education, the adjudicator should follow the instructions in RS 00205.295 and in GN 01010.815 to obtain a legal precedent opinion about its educational institution status.

2. OPINION

SHORT ANSWER

The State of South Dakota recognizes online public schools as EIs within the meaning of the Act. Online private schools accredited by the Secretary of Education are also EIs under state law. Our view is that unaccredited online private schools and home schools that primarily instruct using unaccredited online programs also qualify as EIs, if the schools satisfy the state’s alternative instruction compulsory attendance exemption requirements.

BACKGROUND

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 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. [1]

DISCUSSION

The State of South Dakota recognizes three types of education entities: public schools, accredited nonpublic schools, and alternative instruction programs, which include unaccredited private schools and home schools. S.D. Codified Laws §§ 13-27-1, - 3.

Public Online Schools

The State of South Dakota recognizes public online schools are EIs. The state’s online school program, the South Dakota Virtual School (“SDVS”), see About SDVS, http://www.sdvs. k12.sd.us/Providers/About.aspx (last visited March 11, 2010), is under the control of the Department of Education. S.D. Codified Laws § 13-33-24. SDVS is a consortium of approved statewide distance learning providers. S.D. Admin. R. 24:43:12:09. Students register for online courses and receive credits through their resident school districts. Id. § 13-33-29. Before a course offered by an approved distance learning provider is posted to SDVS, the Department of Education reviews and approves each course offered for alignment with state content standards and qualified instructional staff (among other factors). S.D. Admin. R. 24:43:12:11. South Dakota public school students who register for SDVS approved online courses are enrolled in public schools, which are per se EIs, absent evidence to the contrary. POMS RS 00205.250(B)(1).

“Nonpublic” Schools

South Dakota’s compulsory attendance law requires a child under the age of 18 to attend a public or “nonpublic” school regularly for the entire term during which the public school in the district in which the person resides, or the school to which the child is assigned to attend, is in session. Id. § 13-27-1. A “nonpublic” school is “a sectarian organization or entity which is accredited by the secretary of education for the purpose of instructing children of compulsory school age.” S.D. Codified Laws § 13-37-35.1(15) (emphasis added); see also id. § 13-3-47. In order to be accredited by the state, nonpublic schools are required to provide the same attendance and core curriculum requirements as public schools. The number of hours in the school term for grades four through twelve may not be less than 962.5, excluding recess and lunch. Id. § 13-26-1. The South Dakota Board of Education is responsible for establishing curriculum requirements for a basic high school program for all public and nonpublic schools within the state. Id. § 13-1-12.1 (effective until July 1, 2013). [2] Upon enrollment or within 30 days of enrollment in a public or nonpublic school, a parent or legal guardian is required to file with the school a certified copy of the child’s birth certificate or affidavit in lieu of birth certificate as issued by the Department of Health, if the original birth certificate is deemed unattainable. Id. § 13-27-3.1. The school must maintain the certified birth certificate as part of the child’s permanent school record. Id. § 13-27-3.2.

A sectarian online private school that is accredited by the Secretary of Education is an EI under state law. In order to determine whether a specific online school is accredited, we recommend you contact an accreditation specialist with the South Dakota Department of Education.

Alternative Instruction Requirements

Alternative instruction includes unaccredited private schools and home schools. A child who is “provided with alternative instruction for an equivalent period of time, as in the public schools, in the basic skills of language arts and mathematics” must be excused from compulsory attendance. “All instructions shall be given so as to lead to a mastery of the English language.” Id. § 13-27-3; see also id. § 13-27-2. Instructors are not required to be certified but cannot instruct more than twenty-two children. Children who are in grades two, four, eight, and eleven must take a nationally standardized achievement test of the basic skills. The alternative instruction program must maintain records regarding attendance and evidence showing academic progress. Id. § 13-27-3. Like public and accredited private schools, an alternative education program’s school term for grades four through twelve may not be less than 962.5 hours, excluding recess and lunch. Id. § 13-26-1.

With the initial application for excuse from compulsory attendance, a parent or guardian of a child receiving alternative instruction must provide the president of the local school board with a certified copy of the child’s birth certificate or an affidavit notarized or witnessed by two or more witnesses, swearing or affirming that the child identified on the request for excuse is the same person appearing on the child’s birth certificate. The application must reflect where the child will be instructed and any individual who will instruct the child. Id. §§ 13-27-3.1, -3, -7 (requiring all applications for excuse be on a standard form provided by the Secretary of the Department of Education). Within 30 days of excuse, a parent or legal guardian of a child participating in an alternative education program must annually submit to the program a certified copy of the child’s birth certificate (or affidavit in lieu of birth certificate issued by the Department of Health in instances where the original birth certificate is deemed unattainable) to the local superintendent, as well as identify the place where the child will be instructed and who will instruct the child. Id. §§ 13-27-3.1, -3, -7. The alternative instruction program must maintain the certified birth certificate as part of the child’s permanent school record. Id. § 13-27-3.2.

While South Dakota does not specifically provide that unaccredited schools or home schools may offer or use 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 conclude that unaccredited private online schools and home schools that primarily use unaccredited private online schools or programs to instruct students would not qualify as EIs, provided that they comply with the above requirements. Cf. POMS RS DEN00205.275 (Determining the Educational Institution (EI) Status of a Home School; Status of Home Schooling in South Dakota, RCC VIII (E~-L~/Randall) to ARCMOS, SSA, Dec. 10, 2008).

CONCLUSION

South Dakota recognizes online public schools as EIs within the meaning of the Act. Absent evidence to the contrary, public schools that provide SDVS approved courses to students and private online schools that are accredited by the Secretary of Education are EIs under South Dakota law. Unaccredited private online schools and home schools should also be considered EIs under South Dakota’s alternative instruction compulsory attendance exception, if the schools provide instruction for an equivalent period of time as in the public schools in the basic skills of language arts and mathematics and comply with all other applicable laws discussed above

Donna L. C~
Acting Regional Chief Counsel Region VIII

By_________

Yvette G. K~
Assistant Regional Counsel


Footnotes:

[1]

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

[2]

Effective July 1, 2013, Rule 13-1-12.1 will refer only to a “recommended high school program,” as opposed to a “basic high school program” and a “recommended high school program.”


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508205046
PR 08205.046 - South Dakota - 10/22/2010
Batch run: 11/12/2013
Rev:10/22/2010