QUESTION PRESENTED
You asked whether the states in Region X recognize online schools as educational institutions
under state law and if so, to detail each state’s requirements for such programs.
In addition, you asked that if a particular state does not specifically recognize
online schools, to specify what educational requirements a school must meet to be
considered an educational institution under state law. You are seeking this opinion
in order to provide guidance to adjudicators in determining whether 18-year old individuals
attending online schools are entitled to child’s insurance benefits (student benefits)
under Title II of the Social Security Act.
ANSWER
As set forth below, the States of Washington, Oregon, and Idaho, specifically recognize
online educational experiences as educational institutions under state law. The State
of Alaska only recognizes online schools as correspondence study programs. The educational
institution requirements for each state are set forth below.
ANALYSIS
The Social Security Act provides for benefits for dependent children of individuals
who are entitled to Social Security old-age or disability insurance benefits, or who
die with sufficient Social Security insurance coverage. 42 U.S.C. § 402(d). Entitlement
to child’s insurance benefits usually terminates when the child attains age 18. 42
U.S.C. § 402(d)(6) and (7). All citations to statutes and regulations are to 2009
versions, unless indicated otherwise. However, individuals who have not yet turned
19 years old are eligible to receive child’s benefits, as long as they are unmarried
and attending an elementary or secondary school course of at least 13 weeks duration
on a full-time basis. A student is considered in full-time attendance in “a day or
evening noncorrespondence course of at least 13 weeks duration” and is carrying a
subject load which is considered full-time for day students under the institution’s
standards and practices. 20 C.F.R. § 404.367(b). This opinion does not address either
the 13-week durational requirement or the full-time attendance requirement (scheduled
attendance at the rate of at least 20 hours per week). 42 U.S.C. § 402(d)(1), 20 C.F.R.
§ 404.367. 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. §§ 404.352(b)(3), 404.367.
Whether a student is attending an elementary or secondary school is determined by
the laws of the state or other jurisdiction in which the institution is located (this
includes home schools and participation in independent study programs). 42 U.S.C.
§ 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a). Each school the student attends during
the period for which he is claiming child’s benefits must be an “educational institution.”
Program Operations Manual System (POMS) RS 00205.250. Public elementary schools, junior high schools, and high schools are educational
institutions, unless there is evidence to the contrary. POMS RS 00205.250(B)(1). Because the determination of whether an individual is attending a school is
dependent on state law, the relevant state law provisions for the states in Region
X are detailed below.
Alaska
The State of Alaska has no provisions for the establishment of online public schools,
including virtual public charter schools. The state requires every child between the
ages of 7 to 16 years to attend school at a public school in the district in which
the child resides during each school term, with some exceptions. Alaska Stat. § 14.30.010(a).
Children between the ages of 7 to 16 years who are not enrolled in a public school
must be provided an academic education “comparable to that offered by the public schools
in the area.” Alaska Stat. § 14.30.010(a). Examples of other forms of education that
would be permitted under state law include: (1) private schools; (2) religious schools;
(3) tutoring by personnel certificated according to state standards; (4) schools operated
by the federal government; (5) state boarding schools; (6) school board-approved educational
experiences; (7) home schooling by parents or legal guardians; and (8) correspondence
schools. Alaska Stat. § 14.30.010(b).
If the student does not attend a traditional public school we advise that you seek
a legal opinion.
Idaho
In the State of Idaho, online schools, or virtual schools may be: (1) part of the
school district; (2) established as a public charter school; or (3) an accredited
private school. Idaho Code Ann. §§ 33-119, 33-1619, 33-5203, 33-5207.
Virtual school as part of the school district: Public school districts may offer instruction in the manner described for virtual
schools or may offer instruction that is a blend of virtual and traditional instruction.
Idaho Code Ann. § 33-1619; Idaho Admin. Code § 08.02.02.140. All public secondary
schools (grades 9-12) must be accredited. Id.
Public charter school: Public charter schools are part of the state’s program of public education. Idaho
Code Ann. § 33-5203. Charter schools must meet defined educational thoroughness standards.
Idaho Code Ann. §§ 33-1612, 33-5205(3)(a); Idaho Admin. Code §§ 08.02.03.102-.105.
Public virtual charter schools deliver “a full-time, sequential program of synchronous
and/or asynchronous instruction primarily through the use of technology via the internet
in a distributed environment.” Idaho Code Ann. § 33-5202A(8). Virtual schools must
have an online component to their school with online lessons and tools for student
and data management. Id.
A virtual public charter school is established by petition, which must include, among
other things: (1) the learning management system by which courses will be delivered;
(2) the role of the online teacher, including availability, methods of learning, and
means of student assessment; (3) a plan for professional development specific to the
virtual environment; (4) the means by which students will receive appropriate teacher
interaction, including timely, frequent feedback about student progress; (5) the means
by which the school will verify student attendance and award course credit (attendance
at public virtual schools focuses primarily on coursework and activities that are
correlated to the Idaho state thoroughness standards); Student funding for virtual
school attendance is based on either the actual hours of attendance or the percentage
of coursework completed, whichever is more advantageous to the school. Idaho Code
Ann. § 33-5208(8)(b). (6) a plan for the provision of technical support relevant to
the delivery of online courses; (7) the means by which the school will provide opportunity
for student-to-student interaction; and (8) a plan for ensuring equal access to all
students, including the provision of necessary technical support. Idaho Code Ann.
§ 33-5205(6).
Accredited private school: The State Board of Education establishes accreditation standards setting forth the
minimum requirements to be met by public, private and parochial secondary schools,
and those in chartered school districts. Idaho Code Ann. § 33-119. All public schools
are accredited, but accreditation is voluntary for private and parochial schools.
Idaho Code Ann. § 33-119; Idaho Admin. Code § 08.02.02.140. Accredited private schools
must meet the accreditation standards of the Northwest Association of Accredited Schools,
as well as established local standards, and must submit an annual accreditation report
to the State Board of Education. Idaho Code Ann. § 33-119; Idaho Admin. Code §§ 08.02.02.102,
08.02.02.140.
An adjudicator should request confirmation that the virtual school is part of the
public school district, a public charter school, or an accredited private school.
The state currently maintains a list of all accredited schools at http://www.sde.idaho.gov/site/accreditation/list.htm. A list of all public charter schools is on the Idaho Public Charter School Commission
website: http://www.chartercommission.id.gov/schools.asp. An online school is considered an educational institution for purposes of child’s
benefits if it is: (1) a virtual school providing instruction through the public school
district; (2) a virtual school established as a public charter school; or (3) an accredited
private school.
Oregon
The State of Oregon allows schools to provide online courses for students. The state
has created an Oregon Virtual School District within the Department of Education,
which provides online courses that meet the state law academic requirements. Or. Rev.
Stat. § 329.840. Any public school may access these courses. Id. In addition, the State of Oregon allows for the establishment of “virtual public charter
schools,” which are defined as schools that provide online courses, but do not include
schools that primarily serve students in a physical location. Or. Rev. Stat. § 338.005.
All charter schools in the state are public institutions and are established by a
sponsor, which could be either a school district or the State Board of Education.
Or. Rev. Stat. § 338.005. Once a charter is approved, the school must meet the requirements
of its charter, as well as any other applicable state law requirements. Although exempt
from some state law requirements governing public schools, charter schools must comply
with all federal requirements; the state-wide assessment requirements for mathematics,
science, and English; all state requirements for academic content standards and instructions;
and all rules and statutes regarding requirements for instructional time during each
day. Or. Rev. Stat. § 338.115(1). The school district in which the charter school
is located must offer a high school diploma for students attending the charter school
if the student meets all requirements. Or. Rev. Stat. § 338.115(11).
In 2009, the State of Oregon passed legislation establishing a task force to study
online public instruction through charter schools. In December 2009, the task force
issued a report and draft legislation, which is currently pending before the State
Legislature. 2009 Or. Laws chp. 691 (S.B. 767). We recommend that this legal opinion
be reviewed within six months to monitor any future legislative developments.
An adjudicator should confirm that the online school is an approved public school.
The State Department of Education maintains a directory of public schools, including
charter schools, and may be accessed at: http://www.ode.state.or.us/search/results/?id=227. If the school is a valid online Oregon public school, it is considered an educational
institution for purposes of child’s benefits. POMS RS 00205.250(B)(1).
Washington
The State of Washington allows public schools to create programs for learning that
occurs primarily away from a traditional school, such as online schools. Under the
Basic Education Act, each school district “shall make available” to students “at least
a district wide annual average total instructional hour offering of one thousand hours.”
Wash. Rev. Code § 28A.150.220(1)(a). The Washington Office of Superintendent of Public
Instruction is authorized to define “alternatives to classroom instruction” for students
enrolled in “alternative learning experiences.” Wash. Rev. Code § 28A.150.220(1)(b).
The State of Washington allows a school district to count as a course of study any
digital and/or online curricula that are delivered over the internet or by other electronic
means. Wash. Admin. Code § 392-121-182(1). These are referred to as Alternative Learning
Experiences.
A valid online program must demonstrate that it meets the regulatory requirements
for Alternative Learning Experiences. These include: (1) the school district board
must adopt policies for each program that meet the regulatory requirements; (2) the
program must be accessible to all students, including those with disabilities; (3)
the program must require written student learning plans for each student; (4) the
school district must report enrollment using the regulatory definitions of full-time
equivalent student; (5) there must be evaluation of student performance according
to a prescribed process and schedule; (6) the school district must periodically engage
in self-evaluation of the learning experiences; (7) the school district must report
annually to the superintendent of public instruction on the types of programs and
course offerings; and (8) the school district must maintain appropriate written documentation
for audit purposes. Id. These requirements are in addition to all other rules and regulations governing public
education in the State of Washington.
To determine whether an online school is a valid public school, an adjudicator should
request confirmation that the school is an Alternative Educational Experience consistent
with state law. In addition, the state currently maintains a list of all state public
school districts and individual public schools that are receiving state funding. This
list can be accessed at the Office of Superintendent of Public Instruction’s website:
http://www.k12.wa.us/maps/SchoolURL.aspx (click on the Excel worksheet). A valid public online school and will have a school
identification number and should be found on this list. If the school is a valid State
of Washington online public school, it is considered an educational institution for
purposes of child’s benefits. POMS RS 00205.250(B)(1).
CONCLUSION
In the States of Idaho, Oregon, and Washington, valid online public schools or public
charter schools are considered educational institutions for purposes of child’s benefits.
In addition, in the State of Idaho, accredited online schools are considered educational
institutions for purposes of child’s benefits. If an individual is attending an online
school in the State of Alaska or an online private school in the States of Washington
or Oregon, a legal opinion should be requested to determine whether the school is
complying with all state law requirements, including those for online schools.