Oregon law, which changed in 2010, now includes requirements that virtual charter schools monitor and track student attendance and provide valid student assessments effective with the 2010-2011 school year, and this opinion modifies PR 10-066 (3/3/10).

QUESTION PRESENTED

You asked for a legal update regarding the question of whether the State of Oregon recognizes online schools as educational institutions under state law. You are seeking this opinion to provide ongoing 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

The State of Oregon continues to recognize online educational experiences as educational institutions under state law.  Legislative changes in 2010 added requirements that virtual charter schools monitor and track student attendance and provide valid student assessments effective with the 2010-2011 school year.

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 2010 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. Nonetheless, virtual public charter schools are required to monitor and track student attendance. Or. Rev. Stat. § 338.120(1)(e). 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).  The determination of whether an individual is attending a school is dependent on state law.

As set forth in an earlier legal opinion dated March 3, 2010, the State of Oregon allows schools to provide online courses for students.  In 2005, the state created within the Department of Education an Oregon Virtual School District, which provides online courses that meet state law academic standards, and may be accessed by any public school. Or. Rev. Stat. § 329.840.  The State of Oregon also permits the establishment of “virtual public charter schools,” which are defined as schools that provide online courses and do not primarily serve students in a physical location. Or. Rev. Stat. §§ 338.005(5), 338.035(1)(b).

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(4). 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; 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 making changes to statutes pertaining to virtual public charter schools.  2009 Or. Laws chp. 691 (S.B. 767) (effective July 14, 2009, with some provisions effective retroactively or subsequently). The legislation also established a task force “for the purpose of ensuring that the state provides appropriate access to online learning through public charter schools.” Id.  A virtual public charter school may contract with a for-profit entity to provide educational services through the virtual public charter school, as long as the for-profit entity does not employ any employees of the virtual public charter school.  Or. Rev. Stat. § 338.135(2)(b). All virtual charter schools teachers must be licensed to teach and comply with qualification requirements of the federal No Child Left Behind Act of 2001 (P.L. 107-110, 115 Stat. 1425). Or. Rev. Stat. §§ 338.120(1)(f).

An adjudicator should confirm that the online school is an approved virtual public charter school. The Oregon State Department of Education maintains a directory of public schools, including charter schools, at:http://www.ode.state.or.us/search/results/?id=227 .  If the school is a valid online Oregon virtual public charter school, it is considered an educational institution for purposes of child’s benefits. POMS RS 00205.250(B)(1).

Legislative Update to Legal Opinion Dated March 3, 2010

Legislation in 2010, developed by the task force, updated the statutes pertaining to virtual public charter schools. 2010 Or. Laws chp. 72 (H.B. 3660). Virtual public charter schools are now required to monitor and track student attendance and provide student assessments in a manner that ensures each individual student is being assessed and that the assessment is valid. Or. Rev. Stat. § 338.120(1)(e) (effective with the 2010-2011 school year).

CONCLUSION

In Oregon, virtual public charter schools are considered educational institutions for purposes of child’s benefits. Virtual public charter schools must monitor and track student attendance and provide student assessments in a manner that ensures each individual student is being assessed and that the assessment is valid.

If an individual is attending an online private school in the State of Oregon, a legal opinion should be requested to determine whether the school is complying with all state law requirements, including those for online schools.

The state of Oregon recognizes online public schools and online public charter schools. The adjudicator should confirm that the online school is an approved public school. A directory of approved public schools, including charter schools, in Oregon is available at http://www.ode.state.or.us/search/results/?id=227\t_blank . If a student alleges full-time attendance at an online private school in Oregon, the adjudicator should follow the instructions in RS 00205.295 and in GN 01010.815 to determine whether the school complies with all state law requirements, including those for online schools.

 

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.