Texas Virtual Academy (TVA) is an open-enrollment, online charter school located in Lewisville, Texas. Open-enrollment charter schools are part of the Texas public school system. TVA provides secondary education for grades 9 through 12 under Texas law, and it qualifies as a secondary school under the Act. 

QUESTION

You asked whether Texas Virtual Academy, an online school, meets the requirements of an educational institution (hereinafter referred to as elementary or secondary school)^[1] under the Social Security Act (Act) and whether R2’s~ attendance of Texas Virtual Academy satisfies the Social Security Administration’s (agency) full-time attendance requirement. If the requirements are met, your asked whether the agency should issue child’s benefits to R2~ as a full-time student of an elementary or secondary school on R1’s~ account (number holder).

ANSWER

We believe that Texas Virtual Academy is a secondary school under the Act and that R2~ is a full-time student. Thus, we conclude that R2~ is entitled to child’s benefits after age eighteen on the number holder’s account.

BACKGROUND

As we understand the facts, in October 2011, R2~ began receiving child’s benefits on the number holder’s account. When R2~ attained age eighteen in September 2015, the agency terminated his child’s benefits. R2~ resides in Austin, Texas.

On August XX, 2015, R2~ completed Form SSA-1372-BK page 2, Student’s Statement Regarding School Attendance, where he represented that he attends an online high school program at Texas Virtual Academy, which is located in L~, Texas. R2~ stated that Texas Virtual Academy’s school year began August 25, 2015, and would end August 31, 2016. R2~ reported that he attends classes 40 hours a week, and he expects to graduate in August 2016.

M~, Texas Virtual Academy’s registrar, signed and dated Form SSA-1372-BK page 3, Certification by School Official, certifying that the information R2~ provided was “correct according to the school’s records.” M~ confirmed that each of Texas Virtual Academy’s courses of study is of at least thirteen weeks duration and that Texas Virtual Academy operates on a yearly basis. See POMS RS 00205.295(F) (procedure to document the online school decision, which includes a student giving Form SSA-1372-BK to a school official).

Texas Virtual Academy is an open-enrollment, online charter school and Texas Virtual School Network (TxVSN) Online School is a Texas Education Agency (TEA) accredited school for the 2015-2016 school year.^[2] See http://tea.texas.gov/Curriculum_and_Instructional_Programs/Learning_Support_and_Programs/Texas_Virtual_School_Network/Texas_Virtual_School_Network_-_Online_Schools_Program/; http://castro.tea.state.tx.us/charter_apps/production/map.html.^[3] Texas Virtual Academy high school program serves students in grades 9-12, who reside within the State of Texas. See http://txva.k12.com/how-it-works/high-school/. Texas Virtual Academy keeps daily attendance logs and requires students to log 1,260 hours of attendance during a complete school year, which averages to thirty-five hours per week.^[4] See http://ecp.txva.org/policies.html#methodecp. Texas Virtual Academy operates on a public school academic calendar, from August to June, with typical holidays. See http://txva.k12.com/academic-calendar/.

ANALYSIS

Section 202(d)(1)(B) of the Act provides for the payment of child’s benefits to certain applicants over the age of eighteen, who are full-time elementary or secondary school students. See 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5). Section 202(d)(7)(C)(i) provides that an “elementary or secondary school” is a school that provides elementary or secondary education, as determined under the law of the state or other jurisdiction in which it is located. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a). The agency considers a student to be a full-time elementary or secondary school student if the student attends a school that provides elementary or secondary education as determined under the law of the state in which the school is located and if the student: (1) is in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; (2) carries a subject load considered full-time for day students under the institution’s standards and practices; and (3) attends school at least twenty hours per week. See 20 C.F.R. § 404.367(a), (b), (c). A student receiving home school instruction or who is in an independent study, in accordance with the law of the state in which he resides, is considered a secondary school student under agency regulations.^[5] See 20 C.F.R. § 404.367(a)(1), (2).

Whether Texas Virtual Academy Qualifies as a Secondary School Under Texas Law

We first address whether Texas Virtual Academy, an open-enrollment, online charter school,^[6] qualifies as a secondary school under Texas law. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a). Secondary schools in Texas are grades 9-12. 19 Tex. Admin. Code § 74.3. Because Texas Virtual Academy, which R2~ attends, offers programs for grades 9-12, it is a secondary school under Texas law.

We next look to whether Texas Virtual Academy, as an open-enrollment charter school, can be a secondary school under Texas law.^[7] School districts and charter schools created under Texas law have the primary responsibility for implementing the state’s system of public education and ensuring student performance in accordance with the Texas Education Code. Tex. Educ. Code Ann. § 11.002. The Texas Education Code expressly states that “[a]n open-enrollment charter school is part of the public school system of this state.” Tex. Educ. Code Ann. § 12.105; see also 19 Tex. Admin. Code § 100.1001(3) (“Charter school” is defined as “[a] Texas public school operated by a charter holder under an open-enrollment charter granted either by the State Board of Education (SBOE) or commissioner of education”). Further, “an open-enrollment charter school is subject to the federal and state laws and rules governing public schools.” Tex. Educ. Code Ann. § 12.103(a). The Texas Education Code grants an open-enrollment charter school the “powers granted to [traditional public] schools under [the Education Code]” and the authority to “provide instruction to students at one or more elementary or secondary grade levels as provided by the charter.” Tex. Educ. Code Ann. §§ 12.102(1), 12.104. TEA grants a charter for an open-enrollment charter school if the school meets the criteria required under Texas law. Tex. Educ. Code Ann. § 12.101(b). Thus, Texas Virtual Academy, as a Texas open-enrollment charter school, qualifies as a secondary school under state law.

Finally, we consider if the online nature of the school courses impacts Texas Virtual Academy’s status as a secondary school. The POMS defines an online school as “one that offers Internet-based courses to students” and recognizes that online schools can constitute an educational institution (elementary or secondary school) for SSA’s purposes, but instructs that the online school must meet state law requirements. See POMS RS 00205.295(B)^[8] (a child attending an online school may be a full-time student if (1) the student meets the standards for full-time attendance, and (2) the online school is consistent with the law of the state in which the school is located). The Texas Administrative Code sets forth specific rules concerning the TxVSN. See 19 Tex. Admin. Code §§ 70.1001 – 70.1035. TEA administers and provides online courses to students through the TxVSN “in coordination with regional education service centers (ESCs), Texas public school districts and charter schools, institutions of higher education, and other eligible entities.” 19 Tex. Admin. Code § 70.1001(4) (2015). TxVSN is a state-led initiative for online learning, which is made up of two components—the course catalog and the full-time online schools. Id. A TxVSN online school is a “Texas public school district or charter school that meets eligibility requirements and serves students who are enrolled full -time in an approved TxVSN Online School program.” 19 Tex. Admin. Code § 70.1001(6). A school district or open-enrollment charter school may choose to participate in providing electronic courses through the TxVSN. Tex. Educ. Code Ann. § 30A.004(c). To be eligible to serve as a TxVSN online school, a school district or charter school must meet the criteria required under Texas law and have a current TEA accredited status. 19 Tex. Admin. Code § 70.1009. A TxVSN online school serves students in grades 3-12, who are not physically present at the school and who enroll full-time in an approved TxVSN Online School program. 19 Tex. Admin. Code § 70.1001. TEA’s website lists the Texas Virtual Academy as one of five TEA accredited full-time TxVSN online schools for 2015-2016 school year. See http://tea.texas.gov/Curriculum_and_Instructional_Programs/Learning_Support_and_Programs/Texas_Virtual_School_Network/Texas_Virtual_School_Network_-_Online_Schools_Program/. Thus, we conclude that Texas Virtual Academy, as an online, open-enrollment charter school, qualifies as a secondary school under Texas law.

Whether R2~ is in Full-Time Attendance

We next address whether R2~ is in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; carries a subject load considered full-time for day students under the institution’s standards and practices; and attends school at least twenty hours per week. See 20 C.F.R. § 404.367(b), (c). We first look at whether R2~ is in full-time attendance in a non-correspondence course. See 20 C.F.R. § 404.367(b). The agency expressly excluded from eligibility individuals enrolled solely in correspondence courses because such courses did not satisfy the Act’s definition of an elementary or secondary school. See 61 Fed. Reg. 38361-01, 1996 WL 409869. The POMS defines correspondence school as “a school that teaches by mailing lessons and exercises to the student. Upon completion, the student returns the exercises to the school for grading.” See POMS RS 00205.330(A). The POMS, however, makes a distinction for online schools and defines an online school as “one that offers Internet-based courses to students” and provides that online schools can constitute an educational institution (elementary or secondary school) for SSA’s purposes. See POMS RS 00205.295(B) (a child attending an online school may be a full-time student if (1) the student meets the standards for full-time attendance, and (2) the online school is consistent with the law of the state in which the school is located). As addressed above, the Texas Virtual Academy qualifies as an online TxVSN school and provides an interactive course study, as opposed to correspondence school course where students complete their studies at their convenience and mail in the assignments. See http://txva.k12.com/how-it-works/ (stating Texas Virtual Academy is an interactive program); see also 19 Tex. Admin. Code § 70.1001(1) (defining a TxVSN “electronic course” as one “in which instruction and content are delivered primarily over the Internet, a student and teacher are in different locations for a majority of the student’s instructional period, most instructional activities take place in an online environment, the online instructional activities are integral to the academic program, extensive communication between a student and a teacher and among students is emphasized, and a student is not required to be located on the physical premises of a school district or charter school.”). Texas Virtual Academy’s website shows that Texas-certified teachers conduct online class sessions and provide both general instruction and small group focus instruction, and that students can talk with teachers and other students during class using their keyboard or microphone to ask and answer questions and participate in group discussions. See http://txva.k12.com/how-it-works/high-school/; http://txva.k12.com/our-curriculum/high-school/. Because Texas Virtual Academy teaches courses interactively, we believe that this course of study is not equivalent to submitting assignments through the mail, as is done in a typical correspondence school. Thus, we believe R2~ attends a non-correspondence course.^[9]

We next look at whether R2~’s non-correspondence course was at least thirteen weeks in duration. See 20 C.F.R. § 404.367(b). R2~ completed Form SSA-1372-BK page 2 and stated that he attends a high school program at the Texas Virtual Academy, where the school year is from August 2015 through August 2016. M~, Texas Virtual Academy registrar, certified that the Texas Virtual Academy’s course of study is at least thirteen weeks in duration. See POMS RS 00205.295(F) (procedure to document the online school decision; the student should give the Form SSA-1372-BK to a school official for certification and return it to SSA). Thus, the evidence shows R2~ attends a non-correspondence course of at least thirteen weeks in duration.

We next look at whether R2~ carries a subject load considered full-time for day students under the institution’s standards and practices. See 20 C.F.R. § 404.367(b). Under Texas law, a school district or charter school may deny a request to enroll a student in an online course if a student attempts to enroll in a course load that is inconsistent with the student’s high school graduation plan.^[10] Tex. Educ. Code Ann. § 26.0031(c)(1). Texas Virtual Academy serves students who enroll full-time in an approved TxVSN Online School program. 19 Tex. Admin. Code § 70.1001(6). A full-time student is a person enrolled in at least the minimum course load required to qualify as full-time at the particular educational institution and in the particular course study. 28 Tex. Admin. Code § 132.15. R2~ submitted a document showing that he is taking five courses and represented in Form SSA-1372-BK page 2 that he expects to graduate in August 2016. M~ certified that R2~’s statement that he expects to graduate in August 2016 was “correct according to the school’s records.” See POMS RS 00205.295(F) (procedure to document the online school decision). The evidence suggests that R2~’s course load is consistent with the graduation plan. Furthermore, a Texas Virtual Academy school official confirmed that R2~ is currently taking a full-time subject load at the Texas Virtual Academy. Thus, we believe that R2~ carries a full-time subject load under Texas Virtual Academy’s standards and practices.

We next address whether R2~ attends school at least 20 hours per week. See 20 C.F.R. § 404.367(c). Texas has compulsory school attendance for children ages 6 to 18. Tex. Educ. Code Ann. § 25.085. TEA adopted procedures for reporting and verifying the attendance of a student enrolled through TxVSN.^[11] Tex. Educ. Code Ann. § 30A.109. TxVSN course providers must maintain documentation to support the students’ successful completion and to support verification of compulsory attendance. 19 Tex. Admin. Code § 70.1017(c). The Texas Virtual Academy’s website states that it requires students to log 1,260 hours of attendance during a complete school year, which equates to an average of thirty-five hours per week. See http://txva.k12.com/faqs/enrollment-attendance-faqs/. R2~ stated that he attends a high school program at the Texas Virtual Academy, where he is scheduled to attend 40 hours per week. M~ certified that R2~’s statement regarding his weekly attendance was “correct according to the school’s records.” See POMS RS 00205.295(F). Therefore, we find that R2~ is in full-time attendance. See 20 C.F.R. § 404.367(b), (c); see also POMS RS 00205.300 (a student is in full-time attendance if he or she meets both the state and federal standards for full-time attendance).

CONCLUSION

In conclusion, Texas Virtual Academy provides a secondary education under Texas law and qualifies as a secondary school under the Act. Based on the evidence we have, we believe that R2~ is a full-time student at Texas Virtual Academy. Thus, we conclude that R2~ is entitled to child’s benefits after age eighteen on the number holder’s account.

Michael McGaughran

Regional Chief Counsel

By: Ruben Montemayor

Assistant Regional Counsel

The Southern Baptist Academy online program offers high school courses via the Internet. There is conflicting evidence regarding where the Southern Baptist Academy is located (i.e. Florida, Texas, or Pennsylvania). To be an educational institution (EI) for SSA purposes, a school must provide elementary or secondary education under the law of the state or other jurisdiction in which it is located. SSA addressed the state laws of Florida, Texas, and Pennsylvania and determined that the Southern Baptist Academy is not an EI for SSA purposes under the Florida, Texas, or Pennsylvania law.

This memorandum is in response to your request for a legal opinion on whether The Southern Baptist Academy, which offers online high school courses via the Internet (http:/thesouthernbaptistacademy.org/), meets the definition of an educational institution under the Social Security Act (Act). ^[12] We believe that The Southern Baptist Academy online program is not an educational institution under the Act, and therefore, B~ and A~’s entitlements to child’s insurance benefits on the number holder’s account stopped once they reached 18 years of age.

BACKGROUND

The facts indicate that in December 1994, B~ and A~ became entitled to child’s insurance benefits. Both B~ and A~ reside in Arkansas. B~ and A~ turned age 18 in December 2010, after which the agency terminated their child’s insurance benefits. Prior to turning age 18, B~ and A~ completed SSA Form 1372, Student’s Statement Regarding School Attendance. Each stated that she had been attending The Southern Baptist Academy, based in Philadelphia, Pennsylvania, since September XX, 2009; that she was scheduled to attend classes for 900 hours a year, which averaged 25 hours per week; that her current school year would end on June 17, 2011; and that she expected to graduate in June 2011.

The Southern Baptist Academy registrar certified that the information B~ and A~ provided on the SSA Form 1372 was correct. The registrar also stated that the school’s course of study was at least 13 weeks in duration. Contrary to B~ and A~’s statement that The Southern Baptist Academy is based in Pennsylvania, however, the registrar sent the agency a letter on October 6, 2010, stating that the school is registered in Florida. The Southern Baptist Academy website provides conflicting statements regarding its location. On one page the website states, “The Southern Baptist Academy is an independent private Christian K-12 online homeschool program that is registered as a private school by the Texas Department of Education.” ^[13] (http://thesouthernbaptistacademy.org/accreditation.php) Elsewhere, however, the website states, “The Southern Baptist Academy is accredited by the National Association of Private Schools Accreditation Alliance and is registered with the Florida Department of Education.” (http://thesouthernbaptistacademy.org/faq.php#Is_the_Academy_accredited or_Licensed) Nevertheless, all addresses directing contact with the school are in Philadelphia, Pennsylvania. ^[14] (http://thesouthernbaptistacademy.org/faq.php)

The Sherwood, Arkansas, Field Office contacted the Florida Board of Education to ask whether The Southern Baptist Academy is registered in Florida. The Florida Board of Education stated that the school appears in their directory as located in Florida, but they did not have any information about the school operating as an online educational entity. ^[15] The Florida Board of Education indicated that it was possible that The Southern Baptist Academy operates an online school because the school can determine its own method of instruction. ^[16]

DISCUSSION

The Act provides for the payment of child’s insurance benefits to certain applicants over the age of 18 who are full-time elementary or secondary school (educational institution) students. ^[17] See 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5); POMS RS 00205.001(A). Under the Act, an educational institution is a school that provides elementary or secondary education, as determined under the law of the state or other jurisdiction in which it is located. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.300.

Under the regulations, in order for a child to be eligible for child’s insurance benefits, she must attend a school that provides elementary or secondary education as determined under the law of the state in which the school is located. ^[18] See 20 C.F.R. § 404.367(a). Participation in the following programs also meets the requirements of 20 C.F.R. § 404.367(a): 1) a student is instructed in secondary education at home in accordance with the home school law of the State or other jurisdiction in which she resides ^[19] ; or 2) a student is a in an independent study secondary education program in accordance with the law of the State or other jurisdiction in which the student resides and that is administered by the local school or school district/jurisdiction ^[20] . 20 C.F.R. § 404.367(a)(1), (2). Accordingly, a student may meet the requirements set out by 20 C.F.R. § 404.367(a) if either the school itself is deemed an educational institution in the state in which it is located or the student’s curriculum qualifies under the law of the state in which the student resides.

In addition to meeting the requirements of 20 C.F.R. § 404.367(a), the student must be in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and carry a subject load that is considered full-time for day students under the institution’s standards and practices. 20 C.F.R. § 404.367(b). If the student is enrolled in the home schooling program discussed in 20 C.F.R. § 404.367(a)(1), the student must be carrying a subject load which is considered full-time for day students under standards and practices set by the state in which she resides. 20 C.F.R. § 404.367(b). Finally, the student’s scheduled attendance must be at least 20 hours per week, unless the school attended does not schedule at least 20 hours per week and going to that particular school is the student’s only reasonable alternative or the student’s medical condition prevents her from having scheduled attendance of at least 20 hours per week. 20 C.F.R. § 404.367(c)(1), (2).

The Southern Baptist Academy is not an educational institution because it does not provide elementary or secondary education, as determined under the laws of the State in which it is located. 20 C.F.R. § 404.367(a).

We first address the question of whether The Southern Baptist Academy qualifies as an educational institution under the law of the state where it is located. 20 C.F.R. § 404.367(a). There is conflicting evidence regarding where The Southern Baptist Academy is located. Thus, we will address the state laws of Florida, Texas, and Pennsylvania because the regulations require us to consider the state laws where the school is located. ^[21]

Florida

Florida requires regular school attendance for children ages six through sixteen. Fla. Stat. § 1003.21 (2011). A child is in regular school attendance if she attends a public school, a parochial school, a private school, home education, or private tutoring. Fla. Stat. § 1003.01. Florida law defines a private school as a non-public school that provides instructional services and is supported in whole or in part by tuition charges, endowments, or gifts. See Florida Stat. §§ 1002.01, 1003.01(2), 13(c). The Southern Baptist Academy is a private school, as it is operated through the tuition of its students by a nonprofit organization, Learning by Grace, Inc. ^[22]

There is no Florida statutory authority regulating the establishment of private schools in Florida. See State v. M.M., 407 So.2d 987 (Fla. 1981). However, a private school must file an annual survey form with the Florida Department of Education to be registered in the state of Florida. Fla. Stat. § 1002.42. This annual survey form certifies that each of the private schools’ employees are fingerprinted and undergo a criminal background check. See Florida Stat. § 1002.42. The Florida Department of Education does not use this survey form to “accredit” a private school; rather the Florida Department of Education’s database of private schools exists solely as a “service to the public, and not to regulate, control, approve, or accredit private educational institutions.” Florida Stat. § 1002.42(2)(h).

As of November 10, 2011, The Southern Baptist Academy had not filed its annual survey form with the Florida Department of Education for the 2011-2012 school year and was not included in the department’s Private School Database. Therefore, Florida law does not consider The Southern Baptist Academy a private school and B~ and A~ are not in regular school attendance, as Florida law defines.

Texas

Texas requires compulsory school attendance for children ages six to eighteen. Tex. Educ. Code Ann. § 25.085. However, a child is exempt from the requirements of compulsory school attendance if the child attends a private or parochial school that includes in its course a study of good citizenship. Tex. Educ. Code Ann. § 25.086. There is no evidence that the Southern Baptist Academy has a physical location in Texas. The Southern Baptist Academy lists its degree requirements on its website, but does not include a course in good citizenship. (http://www.thesouthernbaptistacademy.org/diplomarequire.php) Thus, The Southern Baptist Academy does not satisfy the minimum requirements for either a private or parochial school in the state of Texas.

Pennsylvania

Pennsylvania requires compulsory school attendance for children ages eight through seventeen. 24 Pa. Cons. Stat. Ann. §§ 13-1326, 13-1327. A child who attends a private school can satisfy the compulsory school attendance requirement in one of two ways. Under the first exception, the child satisfies the compulsory school attendance requirement if she is enrolled in a day school operated by a bona fide church or other religious body and that school provides a minimum of 180 days of instruction or 900 hours per year of instruction at the elementary level or 990 hours per year of instruction at the secondary level. 24 Pa. Cons. Stat. Ann. § 13-1327. Under the second exception, the child satisfies the compulsory school attendance requirement if she is enrolled in a day or boarding school accredited by an accrediting association approved by the State Board of Education. Id.

The Southern Baptist Academy does not satisfy the first exception because it is operated by a non-profit corporation, not a bona fide church or other religious body. The school also only requires 900 hours per year of instruction at the secondary level, falling short of the 990 hours that Pennsylvania law requires. Finally, the school does not have a minimum number of days that the child must attend. Thus, the school does not satisfy the first exception.

The Southern Baptist Academy also does not satisfy the second exception because it is not listed as a Licensed/Registered School on the Pennsylvania Department of Education website. (http://www.education.state.pa.us/portal/server.pt/community/list_of_schools/7422) In addition, the Pennsylvania Board of Education has not approved the National Association of Private Schools Accreditation Alliance, the organization that accredits The Southern Baptist Academy, as an approved accrediting agency. Id. Regardless, even if The Southern Baptist Academy were registered in Pennsylvania, Pennsylvania considers internet schools to be the equivalent of correspondence schools. See 24 Pa. Cons. Stat. Ann. § 6503(a). The agency recognizes that, generally, a student is not in full-time attendance based on taking correspondence school classes, even if the correspondence school meets the definition of an educational institution. See POMS RS 00205.330(B). Thus, Pennsylvania does not recognize The Southern Baptist Academy as a private school that satisfies the state’s compulsory school attendance requirement.

The Southern Baptist Academy does not instruct B~ and A~ in secondary education at home in accordance with Arkansas home school law. 20 C.F.R. § 404.367(a)(1).

B~ and A~ reside in Arkansas. Thus, we next consider whether The Southern Baptist Academy provides secondary education at home to B~ and A~ in accordance with Arkansas home school law. 20 C.F.R. § 404.367(a)(1). While Arkansas recognizes a home school program as an educational institution that can provide secondary education, we conclude that Arkansas would not recognize The Southern Baptist Academy as a home school program. Under Arkansas law, parents and guardians may teach their children in a home school program. See Ark. Code Ann. §§ 6-15-501, 6-15-503, 6-15-504. Because The Southern Baptist Academy is not a parent or guardian of the students enrolled in its program, however, it fails as a threshold matter to qualify as a home school program under Arkansas law. See Ark. Code Ann. § 6-15-501. Furthermore, The Southern Baptist Academy does not qualify as a home school program under Arkansas law because it does not meet Arkansas statutory reporting and testing requirements. See Ark. Code Ann. § 6-15-503(a)(1). Under Arkansas law, parents or guardians desiring to provide a home school for their children must give written notice to the superintendent of their local school district of their intent to provide a home school for their children and sign a waiver acknowledging that the State of Arkansas is not liable for the education of their children during the time that the parents choose to home school. Ark. Code Ann. §§ 6-15-503, 6-15-504. There is no evidence that anyone gave written notice to the superintendent of B~ and A~’s local school district regarding their attending a home school program. In addition, to qualify as a home school program, each student must take a standardized achievement test that the Arkansas Department of Education administers each year. Ark. Code Ann. § 6-15-504(b)(1)(A). There is also no evidence that B~ or A~have taken or will take the Arkansas Department of Education standardized achievement test. Thus, The Southern Baptist Academy does not qualify as a home school program under Arkansas law.

The Southern Baptist Academy does not provide B~ and A~ an independent study secondary education program in accordance with Arkansas law. 20 C.F.R. § 404.367(a)(2).

We next address the issue of whether The Southern Baptist Academy qualifies as an independent study program ^[23] under Arkansas law. 20 C.F.R. § 404.367(a)(2). The regulations define an independent study program as an elementary or secondary education program in accordance with the law of the state or other jurisdiction in which the student resides which the local school or school district administers. 20 C.F.R. § 404.367(a)(2). The POMS further define an independent study program as a program that local education agencies, such as high schools or school districts, run in accordance with specific state law requirements, where the credits earned count toward high school graduation. POMS RS 00205.285(A). Independent study programs involve periodic teacher contact, direction, and testing on campus, with the student making academic progress generally through independent study at home. Id.

In Arkansas, the Department of Education oversees and coordinates the implementation of distance learning, ^[24] which conducts independent study programs, in elementary and secondary public schools and promulgates rules and regulations to establish appropriate adult supervision in distance-learning courses. See Ark. Code Ann. §§ 6-47-201(a)-(b), 6-47-302(a). The Department of Education must approve all distance learning courses, including out-of-state course providers, before an educational institution may import those courses through distance learning. See Ark. Code Ann. §§ 6-47-201(c)(1), 6-47-302(b)(1); see also RGDL, Rule 4.01. ^[25] The Department of Education requires that all distance-learning courses have an appropriately licensed or approved primary instructor; ^[26] that an adult facilitator ^[27] must be present when student achievement assessments used to determine a student’s final grade are administered in a distance-learning course; and that all distance learning courses must comply with the Arkansas Standards for Accreditation. See RGDL Rules 4.02, 4.04, 4.05. The only representation that The Southern Baptist Academy program makes is that it is accredited by the National Association of Private Schools Accreditation Alliance. There is no evidence that the Arkansas Department of Education has approved The Southern Baptist Academy courses; that The Southern Baptist Academy has appropriately licensed or approved primary instructors; that The Southern Baptist Academy has an adult facilitator during student achievement assessments; or that The Southern Baptist Academy online courses comply with the Arkansas Standards for Accreditation. Thus, The Southern Baptist Academy does not qualify as an independent study program under Arkansas law.

B~ and A~ are not in full-time attendance at The Southern Baptist Academy. 20 C.F.R. § 404.367(b)-(c).

Next, we address the issue of whether B~ and A~ are full-time students at The Southern Baptist Academy. 20 C.F.R. § 404.367(b)-(c). As previously noted, in order to be eligible to receive child’s insurance benefits, an applicant who is 18 years of age but has not attained age 19 must be a full-time student, based on the agency’s regulatory standards, at an educational institution. See 42 U.S.C. 402(d)(1)(B); POMS RS 00205.285. The agency considers a student to be a full-time student if she attends a school that provides a secondary education under the law of the state in which the school is located and if the student: (1) is in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; (2) carries a subject load considered full-time for day students under the institution’s standards and practices; and (3) attends school at least 20 hours a week. See 20 C.F.R. § 404.367(a), (b), (c); POMS RS 00205.300(C). The Southern Baptist Academy requires its students to complete 900 hours within 36 weeks, an average of 25 hours a week. The school records the amount of time that a student spends online in courses, as well as the offline time the student spends in “Study Hall.” In addition, the school permits the student to submit a log of up to 110 hours for participation in “Joy Directed Activities.”

However, there is no specific time that a student must attend school each day or each week, as each student is permitted to work at her own pace. (http://thesouthernbaptistacademy.org/faq.php#Details_flexible_schedule).

Although B~ and A~ stated that they must average 25 hours of classes a week, the school does not have any weekly attendance requirement. No documentation shows that B~ and A~ have attended school for at least 20 hours a week. Thus, the agency cannot conclude that B~ and A~ are in full-time attendance at The Southern Baptist Academy.

CONCLUSION

In conclusion, The Southern Baptist Academy is not an educational institution under Florida, Texas, or Pennsylvania. B~ and A~ were not enrolled in home school or an independent study program under Arkansas law. We also cannot conclude that B~ and A~ are full-time students at The Southern Baptist Academy. Therefore, B~ and A~ are not full-time students at an educational institution, and their entitlement to child’s insurance benefits on the number holder’s account stopped once they turned 18.

Michael McGaughran

Regional Chief Counsel

By_________

James D. Sides

Assistant Regional Counsel