Effective Dates: 05/08/2020 - Present Previous | Next

TN 53 (05-20)

PR 08205.054 West Virginia

A. PR 20-038 Eligibility for Child's Insurance Benefits as a Full-Time Student Based on Enrollment at or Studies through Whitmore Online High School

April 16, 2020

1. Syllabus

Whitmore Online High School (Whitmore) is physically located in Morgantown, Monongalia County, West Virginia. Therefore, we look to West Virginia law to determine whether Whitmore qualifies as an educational institution.

Whitmore is not an educational institution under West Virginia law.

2. Question

Whether J~ (Claimant) is eligible for child’s insurance benefits (CIB) on the earnings record of W~, the number holder, as a full-time student based on her enrollment at Whitmore Online High School (Whitmore), an online entity physically located in West Virginia.[1]

3. Opinion

Claimant cannot qualify as a full-time student based on her enrollment at Whitmore because Whitmore is not an educational institution under West Virginia law. Additionally, Claimant’s studies through Whitmore do not meet the requirements of a home study program under Georgia law. Consequently, Claimant is not in full-time attendance based on her studies through Whitmore.

4. Background

Claimant completed a Student’s Statement Regarding School Attendance form (Form SSA-1372-BK), which indicates she lives in Cartersville, Georgia. Claimant reported that Whitmore is physically located in Morgantown, West Virginia and described Whitmore as an online high school. Claimant stated she began attending Whitmore on July XX, 2017, and that her most recent school year ended July XX, 2019. Claimant indicated that she was in a home school program. She indicated that she was in full-time attendance, attended Whitmore for twenty hours per week, and expected to graduate in July 2019. She indicated that she is not disabled and not married. She further indicated that she did not receive payment to attend school.

The Educational Director for Whitmore completed and signed the Certification by School Official page of Claimant’s Form SSA-1372-BK, confirming Claimant’s attendance information. The Educational Director indicated that Whitmore’s course of study was at least thirteen weeks in duration and that Whitmore operated on a yearly basis.

Whitmore’s website states Whitmore is an accredited online high school and lists a Morgantown, West Virginia office address. Whitmore, School, https://www.whitmoreschool.org/ (last visited April 6, 2020). According to the Whitmore website, to graduate with a high school diploma, students must complete 18 credits in English, Social Studies, Science, Math, Physical Education, Fitness, Fine Arts and Electives. Whitmore School, Graduation Requirements, https://www.whitmoreschool.org/academics/graduation-requirements/ (last visited April 6, 2020). Whitmore does not require students to attend classes a set number of hours per week to be considered in full-time attendance. Whitmore, School, Educational Approach, https://www.whitmoreschool.org/academics/educational-approach/ (last visited April 6, 2020). Rather, Whitmore’s “mastery based learning” approach allows students to “learn at their own natural rate,” begin a new course at any time during the calendar year, and “progress at the pace that they find most comfortable.” Id. The only limit on Whitmore’s “self-paced learning” program is that a student may not finish a course in less than 30 days from the time he or she submits the first lesson in that course, and if coursework is unfinished after one year, the student may re-enroll and continue where they left off previously. Id.

5. Discussion

a. Federal Law

To be eligible for CIB on the earnings record of an individual who is entitled to old-age or disability insurance benefits or dies fully or currently insured, an individual who is eighteen years or older and not disabled must be a “full-time elementary or secondary school student.” Social Security Act (Act) § 202(d)(1)(B)(i), (d)(7)(A); see 20 C.F.R. §§ 404.350(a)(5), 404.367 (2020);[2] Program Operations Manual System (POMS) RS 00205.001A. A claimant may qualify as a “full-time elementary or secondary school student,” if he or she attends a school providing elementary or secondary education (twelfth grade or below) according to the law of the state or jurisdiction where the school is located. See Act § 202(d)(7)(A), (d)(7)(C); 20 C.F.R. § 404.367(a), (e); POMS RS 00205.001A; POMS RS 00205.200A. A claimant also may qualify as an elementary or secondary school student if he or she receives instruction in elementary or secondary education at home under the home school law of the state where he or she resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275B. “Home schooling is a private educational program in which the student is taught within the home by a parent/teacher.” POMS RS 00205.275A. The law of the state in which the home school is located must recognize home school as an educational institution. POMS RS 00205.275B. The claimant’s home school instructor must submit evidence that the educational institution meets the state requirements for home schooling. POMS RS 00205.275C.

A claimant also must attend school full time to qualify as a “full-time elementary or secondary school student.” See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.001A; POMS RS 00205.300A. A claimant is in full-time attendance if he or she is attending an educational institution and meets both state and Federal standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(a)-(c); POMS RS 00205.300A. Similarly, a claimant attending an online school is in full-time attendance if he or she is attending an online school that is consistent with the law of the state in which the online school is located (i.e., an educational institution), and meets both state and Federal standards for full-time attendance. See POMS RS 00205.295B; POMS RS 00205.300A. A claimant meets the state standards for full-time attendance if a qualifying educational institution considers the individual to be a full-time student based on the institution’s standards and practices. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b); POMS RS 00205.300B; POMS RS 00205.350C.1. A claimant meets the Federal standards for full-time attendance if he or she will attend school at the rate of at least twenty hours per week, in a non-correspondence course of study lasting at least thirteen weeks. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300C.

A home-schooled individual must meet the Federal standards for full-time attendance and carry a full-time subject load under standards and practices set by the state in which the individual resides. See 20 C.F.R. § 404.367(b); POMS RS 00205.275B. The home schooling instructor is the certifying school official for full-time attendance purposes on Form SSA-1372. See POMS RS 00205.275C; see also POMS RS 00205.350B (stating the agency uses Form SSA-1372 to verify attendance).

b. State Law Related to Educational Institutions

Whitmore is physically located in Morgantown, Monongalia County, West Virginia, and therefore we look to West Virginia law to determine whether Whitmore qualifies as an educational institution.[3] SeeAct § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.001A; POMS RS 00205.200A.

Compulsory public school attendance is required for all West Virginia children ages six through sixteen and for children enrolled in a school system after their sixteenth birthday. See W.Va. Code § 18-8-1a(a) (2020)[4]; see also POMS RS 00205.001A; RS 00205.300 (full-time attendance based on meeting both State and Federal standards). A child is exempt from compulsory public school attendance if he or she attends a private school approved by the county board of education for a time equal to the instructional term set forth for public schools, or 345 minutes of instruction per day for 180 instructional days per term.[5] See W.Va. Code §§ 18-8-1(b); 18-5-45. Upon the request of the county superintendent, an approved private school must furnish the county board of education with all information and records related to attendance, instruction, and progress of the students enrolled.[6] See W.Va. Code § 18-8-1(b).

Claimant’s enrollment at Whitmore does not satisfy West Virginia’s exemption from compulsory public school attendance based on attendance at an approved private school. See W.Va. Code § 18-8-1(b). Nothing on Whitmore’s internet website indicates that the Monongalia County Board of Education has approved Whitmore. Likewise, there is no indication that Whitmore provides the Monongalia County Board with information and records about the attendance, instruction, and progress of its students. See W.Va. Code § 18-8-1(b). Moreover, the West Virginia Department of Education does not include Whitmore on its directory of private schools operating in Morgantown, in Monongalia County, West Virginia. See https://wvde.state.wv.us/ed_directory/Nonpublic-Schools.pdf (last visited April 6, 2020).

Moreover, Whitmore’s “self-paced learning” approach, with no set weekly instructional hours and students attending courses at their own discretion, does not satisfy the exemption statute’s requirement that the approved private school must provide 345 minutes of instruction per day for 180 instructional days per term, the same as public schools located in the county. W.Va. Code §§ 18-8-1(b), 18-5-45. Indeed, Claimant’s statement that she attends Whitmore 20 hours a week falls short of the 28.75 weekly instructional hours required under the statute. W.Va. Code §§ 18-8-1(b), 18-5-45. Therefore, Whitmore is not an educational institution under West Virginia law.

c. State Law Related to Home Schooling

Because Claimant resides in Georgia, we look to Georgia law to determine whether Georgia recognizes home schooling as an educational institution, and if it does, whether Claimant’s instruction through Whitmore meets Georgia’s requirements for home schooling. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.200A.

Georgia law recognizes home study programs as educational entities. Ga. Code. Ann. § 20-2-690.1(a) (West 2020).[7] Under Georgia law, parents or guardians may teach their children in a home study program meeting the following requirements: (1) the parent, parents, or guardian must submit a declaration of intent (DOI) to use a home study program to the Georgia Department of Education (DOE) within 30 days after the establishment of a home study program and by September 1 annually thereafter; (2) the DOI must include certain enrollment and address information; (3) the parent or guardian providing instruction must possess at least a high school diploma or general educational development diploma (GED), although the parent or guardian may employ a tutor who holds a high school diploma or GED to provide instruction; (4) the home study program must provide a basic academic educational program, defined to include reading, language arts, mathematics, social studies, and science; (5) the home study program must provide instruction each 12 months equivalent to 180 school days per year with each school day consisting of at least 4 and 1/2 school hours, unless the child is physically unable to comply; (6) the parent or guardian may execute any document required by law to evidence the enrollment of a child in a home study program, the student’s attendance status, grades, and other required educational information; (7) students must be subject to an appropriate nationally standardized testing program administered in consultation with a person trained to administer such tests at least every 3 years beginning in third grade; and (8) the home study program instructor must write an annual progress report. Ga. Code Ann. § 20-2-690(c).

The information provided does not indicate that Claimant’s studies through Whitmore satisfies the requirements of a home study program under Georgia law. There is no indication that Claimant’s parent or guardian submitted a Home Study DOI to the Georgia DOE as required by the statute or has a home school instructor with a high school diploma or GED. Ga. Code Ann. §§ 20-2-690(c)(1), (c)(2), (c)(3). Although Whitmore’s website indicates that it provides instruction in a basic academic education, including reading, language arts, mathematics, social studies, and science, see Ga. Code Ann. § 20-2-690(c)(4), Whitmore’s self-paced course of study does not provide for instruction for at least 180 days or for 4 and 1/2 hours each school day.[8] See Ga. Code Ann. § 20-2-690(c)(5). Further, there is no indication that Claimant was subject to an appropriate nationally standardized testing program. See Ga. Code Ann. § 20-2-690(c)(7). Nothing on Whitmore’s website indicates that it participates in standardized testing and Claimant presents no evidence that she completed such testing. Finally, the information provided does not indicate that either Whitmore or a homeschool instructor provided an annual assessment of Claimant’s academic progress. As noted above, there is no indication that Whitmore reports such information. See Ga. Code Ann. § 20-2-690(c)(8). Thus, Claimant’s studies through Whitmore do not qualify as a home study program under Georgia law.

d. Full-Time Attendance

Claimant appears to have met the Federal standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300C. However, because Whitmore is not an educational institution under West Virginia law, Claimant’s studies through Whitmore did not meet the State standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b); POMS RS 00205.295.B; POMS RS 00205.300.A. Claimant’s home schooling also did not meet the State standards for full-time attendance because the information provided does not indicate that she carried a full-time subject load under standards and practices set by Georgia law for home schooling. See 20 C.F.R. § 404.367(b); POMS RS 00205.275B.

6. Conclusion

Whitmore is not an educational institution under West Virginia law and, consequently, Claimant did not meet the standards for full-time attendance. Additionally, Claimant’s instruction through Whitmore did not meet the requirements of a home study program under Georgia law.

[1] Although the request for a legal opinion did not specifically ask whether Claimant’s studies through Whitmore met the requirements of a home study program under Georgia law, in reviewing the materials presented we noted that Claimant described her course of studies as a home school program. Therefore, we addressed whether Claimant’s attendance of Whitmore satisfies Georgia’s home school statute.

[2] All references to the Code of Federal Regulations are to the 2020 edition.

[3] Region III OGC reviewed our discussion of West Virginia law and concurred with our conclusion.

[4] All references to the West Virginia code are to the 2020 edition.

[5] This equates to at least 5.75 hours of instruction a day for a five-day week, or 28.75 hours of instruction per week.

[6] The West Virginia statute also provides an exemption for religious-based schools that register with the county board and comply with the provisions of W.Va. Code § 18-28. W. Va. Code § 18-8-1(k). However, there is no indication that Whitmore is a religious-based school, is registered with the county board, or operates in compliance with W.Va. Code § 18-28.

[7] All references to the Georgia Code are to the 2020 edition.

[8] However, Claimant’s report that she attended Whitmore 20 hours per week would be sufficient to meet this requirement of the statute. Ga. Code Ann. § 20-2-690(c)(5).

B. PR 16-093 Reply to Request for Updated Status of the Law Regarding Online Schools in Region III Jurisdictions (Update of Maryland law)[1]

Date: March 8, 2016

1. Syllabus

Except for Pennsylvania (in limited circumstances), Maryland, and Virginia, none of the states in Region III recognizes online schools as educational institutions.  Therefore, a legal opinion should be requested from OGC on a case-by-case basis relating to title II issues for students attending online schools in Delaware, District of Columbia, and West Virginia.

2. Opinion

QUESTION PRESENTED

In January 2010, OGC was asked whether the states in Region III recognize online schools in order to determine whether these schools are educational institutions for SSA purposes, as defined in POMS RS 00205.200.

SUMMARY

Our updated research indicates that three states in Region III, Pennsylvania, Maryland, and Virginia, now recognize online schools as educational institutions. Pennsylvania, however, recognizes only one type of online school—cyber charter schools that have been approved by the state.

BACKGROUND

Under POMS RS 00205.295, a child attending an online school may be a full-time student if the child meets SSA’s standards for full-time attendance; the law of the state in which the student resides recognizes online schools as educational institutions; the online school the student attends meets the requirements of state law in which the student lives; and the student meets all other requirements for benefits.

DISCUSSION

Pennsylvania (PR 08205.042)

There has been no change in Pennsylvania law with regard to online schools since January 2010. Pennsylvania recognizes one type of online school as an educational institution—cyber charter schools that have been approved by Pennsylvania’s Department of Education. On July 1, 2002, Pennsylvania established cyber charter schools under 24 Pa. Cons. Stat. Ann. § 17-1745-A. Pennsylvania defines a cyber charter school as “an independent public school established and operated under a charter from the Department of Education and in which the school uses technology in order to provide a significant portion of its curriculum and to deliver a significant portion of instruction to its students through the Internet or other electronic means.”

24 Pa. Cons. Stat. Ann. § 17-1703-A. The curriculum of a cyber charter school must meet the requirements of 22 Pa Code, Ch. 4, et seq. (or any subsequent regulations promulgated to replace it), dealing with academic standards and assessment for schools, generally.

24 Pa. Cons. Stat. Ann. § 17-1747-A(1). Pennsylvania does not recognize any other type of online school as an educational institution.

Delaware (PR 8205.009)

There has been no change in Delaware law with regard to online schools since January 2010. Our research revealed that Delaware does not recognize online schools as educational institutions. Delaware’s requirements for schools are outlined at 14 Del. Code Regs § 500, et seq., dealing with state standards for curriculum and instruction.

Maryland (PR 08205.023)

Effective September 1, 2011, the Maryland state legislature approved legislation establishing virtual schools. See MD EDUC, §§ 7-1401-1408. Under Maryland law, county boards of education are permitted to establish virtual schools, subject to the approval of the state Department of Education. See MD EDUC, § 7-1402. Once a Maryland virtual school is approved, it is subject to all applicable federal and state laws and regulations governing the operation of a public school, and any student who is eligible for enrollment in a Maryland public school may enroll in a virtual school. Id. Virtual schools in Maryland are required to provide each enrolled student with: 1) access to a sequential curriculum approved by the state Board of Education that meets or exceeds the standards adopted by the county board in the county of the virtual school’s principal place of business; (2) the same length of time for learning opportunities per academic year that is required for public school students, unless the virtual school can show that a student has demonstrated mastery or completion of the subject area; and (3) regular assessment in the core areas of instruction as required by regulations adopted by the State Board of Education. See MD EDUC, § 7-1403. A virtual school in Maryland is also required to maintain an administrative office in Maryland that will be considered to be its principal place of business. See MD EDUC, § 7-1406. (2016 Update: please note that the Maryland State Board of Education regulations provide that a school may not operate without a Certificate of Approval from the State Board. Md. Admin. Code § 13A.09.09.01B (2015)).

Virginia (PR08025.052)

Effective July 1, 2010, the Commonwealth of Virginia approved legislation establishing virtual school programs. See Va. Code Ann. § 22.1-212.23. A virtual school program is defined as a series of online courses (i) with instructional content delivered primarily electronically using the Internet or other computer-based methods; (ii) taught by a teacher primarily from a remote location, with student access to the teacher given synchronously, asynchronously, or both;

(iii) delivered as a part-time or full-time program; and (iv) having an online component with online lessons and tools for student and data management. Id. The virtual school program must be provided by a “multidivision online provider.” A “multidivision online provider” is defined as

a private or nonprofit organization that enters into a contract with a local school board to provide online courses or programs through that school board to students who reside in Virginia both within and outside the geographical boundaries of that school division; (ii) a private or nonprofit organization that enters into contracts with multiple local school boards to provide online courses or programs to students in grades K through 12 through those school boards; or (iii) a local school board that provides online courses or programs to students who reside in Virginia but outside the geographical boundaries of that school division. See Va. Code Ann. § 22.212.23. “Multidivision online providers” must be approved by the Superintendent of Public Instruction. See http://www.doe.virginia.gov/instruction/virtual_learning/virtual_schools/ (last visited April 29, 2013). In the case of state-recognized virtual private schools, the Virginia Board of Education has authorized the Virginia Council for Private Education (“VCPE”) to oversee accreditation of nonpublic preschool, elementary, and secondary schools in the Commonwealth. See Va. Code Ann. § 22.1-19; see also http://www.vcpe.org (last visited April 29, 2013).

West Virginia (PR 08025.054)

There has been no change in West Virginia law regarding online schools since January 2010.

Our research revealed that West Virginia does not recognize online schools as educational institutions. West Virginia’s requirements for schools are outlined in W.Va.Code. R. § 126-42-1, et seq., dealing with Assuring the Quality of Education: Regulations for Education Programs.

District of Columbia (PR 08025.010)

There has been no change in District of Columbia law regarding online schools since January 2010. Our research revealed that the District of Columbia does not recognize online schools as educational institutions. The District of Columbia’s requirements for schools are outlined in D.C. Mun. Regs., tit. 5, § 300, et seq., dealing with curriculum and testing.

CONCLUSION

Except for Pennsylvania (in limited circumstances), Maryland, and Virginia, none of the states in Region III recognizes online schools as educational institutions. Therefore, with the exception of students conforming to the requirements for online schools under Pennsylvania, Maryland, and Virginia law, a legal opinion should be requested from OGC on a case-by-case basis relating to title II issues for students attending online schools.

Nora Koch,

Acting Regional Chief Counsel

By:

Heather Benderson

Assistant Regional Counsel

Anne von Scheven

Assistant Regional Counsel

Footnotes:

[1]

We submit this memo to replace the 2010 memo at PR 08205.023 (Maryland). This memo reflects the previously issued 2013 update for all of the states in Region III, as well as a 2016 update of the state of Maryland only.

To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508205054
PR 08205.054 - West Virginia - 05/08/2020
Batch run: 05/08/2020
Rev:05/08/2020