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
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
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).
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).  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,
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
Yvette G. K~
Assistant Regional Counsel