Introduction
               This memorandum is in response to your request for our opinion whether a student’s
                  attendance at five hours per week meets the Federal requirement for full-time attendance
                  (FTA) and whether receiving instruction off campus qualifies as Independent Study. Based
                  on the evidence that you provided and our research, it is our opinion that Darrell
                  D. F~’s attendance at five hours per week meets the Federal requirement for full-time
                  attendance and that his instruction off campus qualifies as Independent Study.
               
               Background
               Darrell D. F~, the claimant, was awarded child’s insurance benefits (CIB) benefits
                  on the earnings record of his father, Darrell L. F~, beginning July 2009.  At that
                  time, Darrell was in prison for the conviction of a crime and was not entitled to
                  receive benefits. He was released from prison in September 2010 and his first monthly
                  benefit was issued in November 2010.
               
               In November 2010, Darrell enrolled in the Williamsport School District. He is currently
                  a student at the Williamsport Area High School. Darrell receives instruction from
                  school teachers at the James V. Brown Library in Williamsport because he does not
                  qualify for placement at the school based on a violation of school policy.
               
               Discussion
               The Social Security Act provides for the payment of CIB to certain unmarried children
                  of individuals who are deceased or who are entitled to old age or disability insurance
                  benefits. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2010). A child over the age of
                  18 may continue to receive CIB if the child is a full-time elementary or secondary
                  school student. 42 U.S.C. §§ 402(d)(1)(B), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5). In
                  order to be considered a “fulltime” elementary or secondary school student,” the claimant
                  must satisfy all of the conditions described in the federal regulation at 20 C.F.R.
                  § 404.367.
               
               To qualify as a full-time student, the regulations require that the student meet the
                  following conditions:  (a) attend a school which provides elementary or secondary
                  education as determined under the law of the state in which it is located (including
                  instruction at home or in an independent study); (b) be in full-time attendance in
                  a day or evening noncorrespondence course of at least 13 weeks duration; and (c) attend
                  school at the rate of at least 20 hours per week. 20 C.F.R. § 404.367(a)-(c); POMS
                  RS 00205.001, POMS RS 00205.300.  Participation in (1) a home school program, or (2) an independent study program
                  also meets the requirement that the student attend a school which provides elementary
                  or secondary education, as provided in paragraph (a). 20 C.F.R. § 404.367(a)(1)-(2);
                  POMS RS 00205.285.
               
               Independent Study
               You have asked whether Darrell’s off-campus instruction qualifies as “independent
                  study” under the regulations. 20 C.F.R. § 404.367(a)(2). Independent study is a method
                  of alternative secondary education used in some states. POMS RS 00205.285A.  Independent study programs are run by local education agencies such as high schools
                  or school districts, in accordance with specific state law requirements, and the credits
                  earned count towards high school graduation. Id.  Students in independent study situations may qualify for student benefits if the
                  student is (1) in full-time attendance based on Federal standards; and (2) in a school
                  that provides elementary or secondary education as determined under state law.  POMS
                  RS 00205.285B.
               It is our opinion that Darrell’s off-campus instruction constitutes independent study. As
                  discussed more fully below, Darrell’s instruction meets the requirements for full-time
                  attendance based on the Federal standards. In addition, he is enrolled in a school
                  that provides secondary education as determined under state law. The agency’s policy
                  procedures regarding documentation of independent study require completion of Form
                  SSA-1372, Student’s Statement Regarding School Attendance, by the school district
                  and certification. POMS RS 00205.285D.  Darrell has submitted a completed Form SSA-1372 dated February 23, 2011, which has
                  been certified by Elizabeth B~, a special education consultant and school official. This
                  documentation supports a finding that Darrell’s off-campus instruction meets the requirements
                  of independent study under state law.
               
               Full-Time Attendance
               You have also asked whether Darrell’s attendance of five hours per week in an independent
                  study program meets the Federal requirement for full-time attendance.  A student is
                  in full-time attendance if he meets both state and Federal standards for full-time
                  attendance. POMS RS 00205.300A. We believe that Darrell meets both the state and Federal
                  standards for full-time attendance.
               
               The agency considers the state requirements to be met if the school considers the
                  student to be full time based on the school’s standards and practices for day students. 
                  POMS RS 00205.300B. 
               
               Here, the school district considers Darrell to be a full-time student. In a letter
                  to the agency, Marisha C~, Director of Special Education at the Williamsport Area
                  School District (WASD), confirmed that the school district considered Darrell to be
                  a full-time student at Williamsport Area High School. Ms. C~ explained that as part
                  of his educational program, Darrell received five hours per week of intensive individualized
                  instruction. Although she did not identify the school’s standards and practices for
                  full-time attendance for day students, she verified that based on his instruction,
                  the school district considered Darrell to be a full-time student.  Therefore, because
                  Darrell meets the school’s standards and practices for full-time attendance, the agency
                  would consider the state requirements to be met.
               
               Darrell also meets the Federal standards for full-time attendance. The Federal standards
                  require that a student be (1) scheduled for attendance at a rate of at least 20 hours
                  per week; (2) enrolled in a course that is not a correspondence course; and (3) enrolled
                  in a course of study that is of at least 13 weeks’ duration. POMS RS
                     
                     00205.300. However, if attendance is less than 20 hours per week, a finding of full-time attendance
                  may be justified if the following conditions are met: (1) the school’s standards do
                  not require at least 20 hours of weekly scheduled attendance for the student to be
                  considered full-time; and (2) attending that school is the student’s only reasonable
                  alternative. POMS RS 00205.310.
               
               We believe that Darrell’s five hours of instruction per week meet the Federal requirement
                  of fulltime attendance based on the exception for circumstances where attendance is
                  less than 20 hours per week. First, regarding the school’s standards, it appears from
                  the information that you provided that the school district’s standards do not require
                  at least 20 hours of weekly scheduled attendance for a child to be considered full
                  time. David C. W~, Director of Student Services for WASC, informed the agency that
                  the school district’s standards for full-time attendance follow those of the Pennsylvania
                  Department of Education (PDE). PDE considers one hour of intensive instruction in
                  the home to be equivalent to one day of regular schooling.  In a report of contact,
                  you have indicated that the district office confirmed with a representative of PDE
                  that based on their unwritten policy, five hours of weekly instruction is considered
                  fulltime attendance.
               
                 Although PDE does not provide written documentation for its policy that one hour
                  of intensive instruction in the home is equivalent to one day of regular schooling,
                  its reporting procedures for instruction in the home are consistent with this policy.
                   PDE instructions permit an IEP team to agree on fewer hours of instruction as long
                  as a student still receives a free appropriate public education. http://www.education.state.pa.us (follow “Codes and Regulations” hyperlink; then follow “Basic Education Circulars”
                  hyperlink; then follow “Federal Codes” hyperlink; then follow “Instruction Conducted
                  in the Home” hyperlink).
               
                Based on this information and Mr. W~’s statement, it appears that the school’s standards
                  do not require at least 20 hours of weekly instruction for a student to be considered
                  full time. Moreover, the school’s approval of Darrell’s Individualized Education Program
                  (IEP) consisting of five hours of weekly instruction provides further support for
                  our conclusion that Darrell’s instruction meets the requirements of full-time attendance.
                    In Pennsylvania, the high school graduation requirements for special education students
                  include completion of a special education program developed by an Individualized Education
                  Program team under the Individuals with Disabilities Education Act.  22 Pa. Code § 4.24(e)
                  (1999).
               
               Second, Darrell also meets the additional requirement that attendance at the school
                  is the student’s only reasonable alternative. POMS RS 00205.310.  According to the Notice of Recommended Educational Placement provided by the school
                  district, Darrell was refused placement at Susquehanna House (where he was enrolled
                  following his release from prison) due to a violation of school policy.  Based on
                  the school district’s decision to provide his instruction in accordance with an IEP,
                  the agency may reasonably conclude that attending an in home instruction program was
                  Darrell’s only reasonable alternative.
               
               Finally, Darrell meets the second and third requirements of the Federal standards
                  for full-time attendance.  Regarding the second requirement, Darrell is enrolled in
                  a high school course of study that is not a correspondence course. Rather, school
                  district teachers provide instruction based on his IEP and the high school curriculum. 
                  Regarding the third requirement, Darrell is enrolled in a course of study that is
                  of at least 13 weeks’ duration. His IEP establishes that his program is expected to
                  endure for one year, from August 18, 2010, to August 17, 2011.
               
               Conclusion
               For the reasons stated above, it is our opinion that Darrell D. F~’s instruction off
                  campus qualifies as Independent Study and his attendance at five hours per week meets
                  the Federal requirement for full-time attendance. 
               
               Eric K~
 Regional Chief Counsel
 By: ____________________
 Anne v. S~
 Assistant Regional Counsel