QUESTION PRESENTED
You asked whether Wyoming recognizes online schools as educational institutions (“EIs”)
within the meaning of section 202(d)(7) of the Social Security Act (“the Act”), 42
U.S.C. § 402(d)(7). If so, you asked us to provide the pertinent requirements; if
not, you asked us to provide the state’s basic educational requirements for any school.
SHORT ANSWER
The State of Wyoming recognizes public online public schools as EIs within the meaning
of the Act. Wyoming does not specifically address whether a private school may offer
online enrollment; however, our view is that private online schools that satisfy the
same requirements as traditional private schools qualify as EIs under Wyoming law.
Likewise, a home school that primarily uses a private online school or program to
instruct students also qualifies as an EI, if the home school satisfies all state
requirements.
BACKGROUND
The Program Operations Manual System (“POMS”) defines an EI as “a school that provides
elementary or secondary education . . . as determined under the law of the State or
other jurisdiction in which it is located.” POMS RS 00205.200. A draft provision regarding online schools, POMS RS 00205.295, provides that a child is a full-time student if (among other things) “[t]he law
of the State in which the student resides recognizes online schools as [EIs,]” and
“[t]he online school the student attends meets the requirements of State law in which
the student lives.” You requested formal legal opinions on these issues for each state
in Region VIII.
Requirements for Child’s Benefits
Section 202(d) of the Social Security Act provides that child’s insurance benefits
usually terminate when the child attains age 18. See 42 U.S.C. §§ 402(d)(6)-(7). Entitlement to child’s benefits may continue, however,
if (among other things) the child is “a full-time elementary or secondary student
and ha[s] not attained the age of 19.” Id. § 402(d)(1).
A full-time elementary or secondary student is an individual who is in full-time attendance
as a student at an elementary or secondary school, as determined by the Commissioner
in light of the standards and practices of the schools involved. See id. § 402(d)(7)(A). An elementary or secondary school is defined as “a school which provides
elementary or secondary education, respectively, as determined under the law of the
State or other jurisdiction in which it is located.” Id. § 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a); POMS 00205.200 (defining an EI). As noted above, draft POMS
RS 00205.295 requires an adjudicator to determine whether the state where a student resides recognizes
online schools as EIs, and whether the online school in question is an EI in that
state.[1]
DISCUSSION
The State of Wyoming recognizes three types of educational entities: public schools,
private schools, and home-based education programs. Wyo. Stat. Ann. § 21-4-102.
Public Online Schools
Wyoming recognizes public online schools as EIs. Wyoming’s distance education program
offers full-time and supplemental enrollment to resident students. See 41 Wyo. Code R. § 3(n). At the elementary and secondary levels, distance education
program providers are all public school districts and must be approved by the Department
of Education’s Wyoming Switchboard Network (“WSN”). See Welcome to the WSN, http://www.k12.wy.us /ICS/WSN/Index.asp (last visited March 10, 2010); see also 41 Wyo. Code R.. § (3)(p); Wyo. Stat. Ann. §§ 21-2-201, -304. A WSN-approved distance
education school or academy is a public school and, absent evidence to the contrary,
is per se an EI under state law. POMS RS 00205.250(B)(1).
Private School Requirements
In Wyoming, unless a statutory exemption applies, a child under the age of 16 who
has not completed the tenth grade must attend “a public or private school each year[]
during the entire time that the public school shall be in session in the district
in which the pupil resides . . . .” Wyo. Stat. Ann. § 21-4-102(a). Generally, each
school district is required to operate its schools and classes for a minimum of one
hundred seventy-five (175) days each school year, unless the State Board of Education
has approved an alternative schedule. See id. § 21-4-301. The annual student-teacher contact requirement is a minimum of 1,100 hours
for secondary school students. See 41 Wyo. Code R. §§ 5(a)(i)-(iii).
A private school “is any nonpublic, elementary or secondary school providing a basic
academic educational program for children and may include parochial and church or
religious schools and home-based educational programs[.]” Wyo. Stat. Ann. § 21-4-101(a)(iii)
(emphasis added). A basic academic educational program means “a sequentially progressive
curriculum of fundamental instruction in reading, writing, mathematics, civics, history,
literature and science.” Wyo. Stat. Ann. § 21-4-101(a)(v).
Like private “brick-and-mortar” schools, private online schools “located within the
state or [that] have their principal place of business out of state but are doing
business in the state, shall be licensed . . . before operating or doing business
in th[e] state,” id. § 21-2-401, unless exempt. Generally, any parochial, church or religious school open
only to elementary and secondary students, and home-based educational programs are
exempt. See id. § 21-2-406(a)(i)-(ii). [2]
While Wyoming law does not specifically provide that a private school may offer online
curriculum, the state does not prohibit it either. Further, the state specifically
recognizes public online schools, indicating general acceptance of online instruction.
Therefore, we see no reason to conclude that a private school providing online instruction
would not qualify as an EI, if the school provides a basic academic education (as
described above) for the length of time as the student’s resident school district
(generally 175 days) and complies with applicable state licensing requirements.
Home-Based Education Program Requirements
A home-based educational program is “a program of educational instruction provided
to a child by the child's parent or legal guardian or by a person designated by the
parent or legal guardian. An instructional program provided to more than one (1) family
unit does not constitute a home-based educational program.” Id. § 21-4-101(v). Thus,
the statute does not require that a parent or legal guardian must provide instruction,
and there are no academic qualifications for the parent/legal guardian or designated
person. [3] See POMS RS DEN00205.275 (Determining the Educational Institution (EI) Status of a Home School).
A home-based educational program, which under Wyoming law also may be considered a
private school, must provide a basic academic educational program, as described above,
for the same length of time required for public schools in the student’s resident
school district, which is generally 175 days. See Wyo. Stat. Ann. §§ 21-4-102(b), -101(a)(iii). Annually, an individual administering
a home-based educational program must submit a curriculum to the local school board
showing that the program complies with basic academic educational program requirements.
Failure to do so “is prima facie evidence that the home-based educational program
does not meet the requirements of this article.” Id. §§ 21-4-102(b).
We see no reason to conclude that a Wyoming home-based education program that primarily
uses a private online school or program to instruct is not an EI, if the school offers
a basic academic education program during the entire time that public schools in the
student’s resident district are in session, and an individual administering the a
school annually submits a curriculum to the local school board that shows the program
provides a basic academic education. Cf. POMS RS DEN00205.275.
CONCLUSION
Wyoming recognizes online public schools as EIs within the meaning of the Act. A WSN-approved
public school distance education school or academy is a public school and per se an
EI under state law, absent evidence to the contrary. While Wyoming does not specifically
address whether a private school may offer online enrollment, private online schools
that provide a basic academic education for the entire time that public schools in
the student’s resident district are in session, and that comply with applicable state
licensing requirements should be considered EIs under Wyoming’s law. A home school
that primarily uses a private online school or curriculum to instruct students also
should be considered an EI, if the home school satisfies all state requirements
Donna L. C~
Acting Regional Chief Counsel, Region VIII
By_________
Yvette G. K~
Assistant Regional Counsel