QUESTION
You asked whether Tennessee Online Public School (TOPS), an entity located in Tennessee,
is an educational institution under Tennessee law for determining a claimant’s eligibility
for child’s insurance benefits (CIB) as a full-time student. You also asked if the
claimant is in full-time attendance based on his instruction through TOPS.
OPINION
TOPS is an educational institution under Tennessee law. The claimant also meets Tennessee
and Federal standards for full-time attendance.
BACKGROUND
According to the information provided, H~ (Claimant) was receiving CIB as a child
under age eighteen on the earnings record of D~, the number holder. Claimant turned
eighteen years old on November XX, 2016. He has applied for a continuation of CIB
as a full-time student.
On September XX, 2016, Claimant, who lives in B~, Tennessee, completed a Student’s
Statement Regarding School Attendance form (Form SSA-1372). In item 1 of the form,
he indicated he attends an educational program full time at or through TOPS, which
he indicated is a state-operated online high school. Claimant reported the school
year at TOPS began on August 1, 2016, and ends in May 2017. Claimant reported neither
the number of hours per week that he attends TOPS nor the date when he expects to
graduate from high school.
On October XX, 2016, J~, Ed.D., principal at TOPS, completed and signed the Certification
by School Official page of Form SSA-1372 and indicated the information Claimant provided
was correct. Dr. J~ also indicated TOPS’s course of study lasts at least thirteen
weeks. On the Notice of Cessation of Full-time School Attendance page of Form SSA-1372,
Dr. J~ indicated Claimant was expected to graduate from TOPS in May 2017.[13] Dr. J~ also listed the physical address of TOPS as located in B~, Tennessee.
In a letter dated October 18, 2016, Dr. J~ stated that TOPS was founded in 2012 as
a public virtual school, allowed for in Tennessee under the Virtual Schools Act that
was passed in 2011. Dr. J~ indicated that TOPS is a public school with the same rights
and requirements as any other public high school in the state of Tennessee. He stated
that the workload at TOPS is “designed to account for the required 6.5 seat hours
per day.” He also stated that completion of all work due in a given week results in
perfect attendance, and failure to complete work results in pro-rated absences.
DISCUSSION
To be eligible for CIB on the earnings record of an individual who is entitled to
old-age or disability benefits, an individual who is eighteen years of age 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 (2016);[14] Program Operations Manual System (POMS) RS 00205.001.A. An individual may qualify as a “full-time elementary or secondary school student”
if he or she attends an educational institution, i.e., a school that provides elementary
or secondary education (twelfth grade or below) as determined under the law of the
State in which the school is located. See Act § 202(d)(7)(A), (d)(7)(C); 20 C.F.R. § 404.367(a), (e); POMS RS 00205.001.A; POMS RS 00205.200.A.[15]
Educational Institution under Tennessee Law
Because TOPS is located in Bristol, Tennessee, we look to Tennessee law to determine
whether TOPS is a school that provides elementary or secondary education. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.200.A. Tennessee contains in the education title of its statutes a chapter on virtual
education. See Tenn. Code Ann. §§ 49-16-101 to 49-16-216 (West 2016). This chapter requires, among
other things, that virtual schools be established by a local school system, be public,
meet State curriculum standards, meet State workload requirements, ensure student
access to technology, ensure students meet participation requirements, and administer
mandatory State tests. As shown below, TOPS satisfies these requirements.
1. TOPS Was Established by a Local Public School System
Pursuant to the Tennessee chapter on virtual education, a local education agency (LEA),
which includes but is not limited to any local public school system or school district,
may establish a virtual school, but is not required to do so. See Tenn. Code Ann. §§ 49-1-103(2), 49-16-103(b), 49-16-105, 49-16-204 (West 2016). An
LEA establishing a virtual school “may contract for services with nonprofit and for-profit
entities in the operation and management of the virtual school.” Tenn. Code Ann. §
49-16-214.
Tennessee’s administrative rules and regulations require all public virtual schools
to “comply with all applicable Tennessee State Board of Education policies and rules
and regulations.” Tenn. Comp. R. & Regs. 0520-01-03-.03(12)(a) (2016). Public virtual
schools must receive approval from the local board of education. See Tenn. Comp. R. & Regs. 0520-01-03-.03(12)(b)1. It appears the local public school
system of Bristol Tennessee City Schools established or, at the very least, approved
TOPS as a virtual school, because the Bristol Tennessee City Schools website lists
TOPS as a local school. See Bristol Tennessee City Schools, Tennessee Online Public School, http://www.btcs.org/Default.asp?L=0&LMID=&PN=Schools2& DivisionID=&DepartmentID=&SubDepartmentID=&SubP=School&SchoolID=5123 (last visited
Nov. 8, 2016).
2. TOPS Is a Public School
A Tennessee virtual school must be a public school, and any student who is eligible
to enroll in a public school in Tennessee may enroll as either a full-time virtual
school student or as a part-time virtual school student taking some of his or her
courses through the virtual school. See Tenn. Code Ann. §§ 49-16-204, 49-16-211(a). On the FAQ page of its website, TOPS
indicates that it is a public school. See TOPS, Frequently Asked Questions, http://tops.education/faq (last visited Nov. 8, 2016). Additionally, the Tennessee Department of Education’s
website lists TOPS as a virtual public school. See SDE Directory, Tennessee Online Public School, https://k-12.education.tn.gov/SDE/DetailSchool.asp?bu_id=7248 (last visited Nov. 8, 2016).
3. TOPS Meets State Curriculum Standards
Regarding curriculum, a Tennessee virtual school must provide “[a]ccess to a sequential
curriculum that meets or exceeds the curriculum standards adopted by the state board
of education.” Tenn. Code Ann. § 49-16-205(1), (3). On the FAQ page of its website,
TOPS indicates that its curriculum is created by licensed Tennessee teachers who teach
for TOPS and that it follows the Tennessee State Standards. See TOPS, Frequently Asked Questions, http://tops.education/faq (last visited Nov. 8, 2016).
Additionally, the Tennessee Department of Education’s website lists the graduation
requirements necessary to receive a high school diploma in Tennessee, which include
taking the ACT or SAT in eleventh grade and obtaining a total of twenty-two credits
before graduating, with a specific number of credits in math, English, science, social
studies, physical education and wellness, personal finance, foreign language, fine
arts, and electives. See Tennessee Department of Education, Graduation Requirements, https://www.tn.gov/education/topic/graduation-requirements (last visited Nov. 8, 2016). The graduation requirements listed on TOPS website meet
or exceed the State requirements. See TOPS, Graduation Requirements, http://tops.education/graduation-requirements-1/ (last visited Nov. 8, 2016).
4. TOPS Meets State Workload Requirements
Tennessee public virtual schools must meet the equivalent of 180 days of instruction
and 6.5 hours per day per academic year. See Tenn. Comp. R. & Regs. 0520-01-03-.03(12)(b)4. On its website, TOPS acknowledges that
it is required to meet the above-described workload requirements. See TOPS, Workload, http://tops.education/workload-1/ (last visited Nov. 8, 2016). Additionally, in his October 2016 letter, TOPS principal
Dr. J~ stated that the workload at TOPS is designed to account for the required 6.5
seat hours per day.
5. TOPS Ensures Students Have Access to Technology
With regard to student participation and progress assessment, Tennessee public virtual
schools must “ensure access to instructional materials, access to technology such
as a computer and printer that may be necessary for participation in the program,
and access to an Internet connection used for school work.” Tenn. Comp. R. & Regs.
0520-01-03-.03(12)(b)11. As part of its admissions requirements, TOPS requires all
students to have a computer and internet connection. See TOPS, Required Hardware/Software, http://tops.education/suggested-software/ (last visited Nov. 8, 2016). TOPS’s website indicates it provides students with all
necessary software. See
id.
6. TOPS Meets State Participation Requirements
Tennessee public virtual schools must monitor student participation and ensure students
meet participation requirements. See Tenn. Comp. R. & Regs. 0520-01-03-.03(12)(b)5. Additionally, Tennessee public virtual
schools must comply with all statutory requirements concerning attendance reporting
and monitoring described in Tenn. Code Ann. § 49-6-3007. See Tenn. Comp. R. & Regs. 0520-01-03-.03(12)(d). On its website, TOPS indicates that
each class posts weekly attendance requirements, and attendance is monitored through
an online program called PowerSchool run by the Bristol Tennessee City School system.
See TOPS, Attendance Policy, http://tops.education/attendance-policy/ (last visited Nov. 8, 2016). Additionally, in his October 2016 letter, Dr. J~ stated
that completion of all work due in a given week results in perfect attendance, and
failure to complete work results in pro-rated absences.
7. TOPS Administers State Tests
Tennessee public virtual schools must also administer any state tests required for
all public school students, in a proctored environment consistent with state test
administration guidelines. See Tenn. Comp. R. & Regs. 0520-01-03-.03(12)(b)6. On its website, TOPS indicates the
State of Tennessee requires testing for all students, and pursuant to that requirement,
TOPS lists its schedule of testing for each of its four physical testing sites around
the State. See TOPS, Testing, http://tops.education/testing/ (last visited Nov. 8, 2016).
By meeting the above-listed requirements, TOPS qualifies as a virtual public school
under Tennessee law. Because TOPS qualifies as a public school in Tennessee, the State
in which it is located, TOPS qualifies as an educational institution for determining
Claimant’s eligibility for CIB. See POMS RS 00205.295.B; POMS RS 00205.300.A.
Full-time Attendance
To qualify as a “full-time elementary or secondary school student,” in addition to
the requirement of attending an educational institution, an individual also must attend
school full time. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.001.A; POMS RS 00205.300.A. An individual attends full time 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 00205.295.B; POMS RS 00205.300.A. Similarly, an individual attending an online school may be considered a full time
student if the online school 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 00205.295.B; POMS RS 00205.300.A. As shown below, Claimant meets both State and Federal standards for full-time
attendance.
1. Claimant Satisfies State Standards for Full-time Attendance
An individual 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 00205.300.B; POMS RS 00205.350.C.1. In item 1 of Form SSA-1372, Claimant indicated he was currently in full-time
attendance at TOPS. In the Certification by School Official of Form SSA-1372, TOPS
principal Dr. J~ verified that all the information in item 1 of Form SSA-1372 was
correct. Because TOPS is a qualifying educational institution, as discussed, and because
Dr. J~ on behalf of TOPS considers Claimant to be a full-time student, Claimant meets
the State standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b); POMS RS 00205.300.B; POMS RS 00205.350.C.1.
2. Claimant Satisfies Federal Standards for Full-time
Attendance
An individual meets the Federal standards for full-time attendance if he or she is
scheduled to attend school at the rate of at least twenty hours per week, enrolled
in a noncorrespondence course, and enrolled in a course of study lasting at least
thirteen weeks. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C. In his October 2016 letter, Dr. J~ indicated that Claimant attends school at the
equivalent rate of 6.5 hours per day, which works out to 32.5 hours per week. Additionally,
as shown, TOPS is a virtual public school, not a correspondence course. Finally, in
the Certification by School Official of Form SSA-1372, Dr. J~ indicated that TOPS’s
course of study was at least thirteen weeks in duration. Thus, Claimant’s attendance
at TOPS meets the Federal standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C.
Accordingly, Claimant’s study through TOPS qualifies as full-time attendance at an
educational institution for determining Claimant’s eligibility for CIB. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(a), (c); POMS RS 00205.295.B; POMS RS 00205.300.A.
CONCLUSION
TOPS is an educational institution under Tennessee law and Claimant is in full-time
attendance at TOPS. Thus, he is a full-time secondary school student based on his
instruction through TOPS for determining his eligibility for CIB.
Sincerely,
Mary Ann Sloan
Regional Chief Counsel
By: Owen Keegan
Assistant Regional Counsel