Penn Foster, a post-secondary school offering career training, is not considered an Educational Institution under Pennsylvania law.

QUESTION PRESENTED

Whether K~ (K~), who is enrolled at the online school Penn Foster High School (Penn Foster), can be considered a full-time student at an Educational Institution and, therefore, entitled to student benefits on the record of his mother, A~, the Number Holder (NH), for the period of March 2017 through the date of his alleged graduation.^[1]

OPINION

Pennsylvania, the jurisdiction in which the online school is located, does not recognize Penn Foster as an Educational Institution. K~ also does not meet the Federal requirements for full-time attendance. Therefore, he should not be considered a full-time secondary school student for the period from March 2017 through the date of his graduation from the online school.

BACKGROUND^[2]

The NH, who was K~’s mother, passed away in October 2005. K~, who was born in March 1999, began receiving Surviving Child’s benefits on the NH’s record also in October 2005. He turned 18 years old on March XX, 2017.

In a Student’s Statement Regarding School Attendance (Form SSA-1372-BK) dated December XX, 2016, K~ indicated that he was enrolled at Penn Foster and Next Level America Academy (Next Level). He indicated that he was scheduled to attend 25 hours per week, without distinguishing whether the 25 hours applied to Penn Foster, Next Level, or both. He was expected to graduate in May 2017. On the Form SSA-1372-BK, P~, who was listed simply as “President” without reference to which school, indicated that the school’s course of study was at least 13 weeks, and the school’s operating basis was yearly.

A letter also dated December XX, 2016 clarified that P~ is the President of Next Level. As such, P~ certified that “student athlete” K~ was enrolled in Next Level and Penn Foster. According to P~, K~ received his “sports program” through Next Level while he “studied” his “academic program” online through Penn Foster.

A2~, admissions specialist at Penn Foster, which is based in Scranton, Pennsylvania,^[3] wrote a letter on K~’s behalf dated December 28, 2016. According to A2~, K~ has been enrolled in Penn Foster since September 4, 2013. Upon successful completion of the program, he will be awarded a high school diploma. A2~ wrote that Penn Foster was licensed by the Pennsylvania State Board of Private Licensed Schools, was regionally and nationally accredited, and was registered with the NCAA Eligibility Center for online advanced academic courses only.

K~’s Penn Foster records show passing scores on examinations. The records indicate that courses were “shipped” to K~, and he took examinations online after receiving the course materials. G~, a representative for Penn Foster, clarified on a phone call with OGC that the coursework and tests are done “strictly online” though textbooks may occasionally be shipped through the mail.^[4] Assignments are turned in and graded online. Id.

Next Level’s website shows that the school is a baseball training academy for youth; K~ is currently listed as a “Junior” on its baseball athletic team roster.^[5] In a phone-call with OGC, P~ said that all academic courses were done through Penn Foster.^[6] He reported that there was a space at Next Level where student athletes worked on their academics through Penn Foster from 7:30 AM until 10:30 AM each morning. Id.

ANALYSIS

1. A. 

   Social Security Laws, Regulations, and Policy

Under the Social Security Act (Act), an individual may continue to receive child’s benefits past the age of 18 if he is a full-time elementary or secondary school student. See Act § 202(d) (1)(E); 42 U.S.C. § 402(d)(1)(E); 20 C.F.R. § 404.367. To be eligible, the individual must meet the requirements for child’s benefits; attain age 18; be in full-time attendance; attend an Educational Institution; and not have attained age 19. Program Operations Manual System (POMS) RS 00205.001. The Act defines a full-time elementary or secondary school student as: “an individual who is in full-time attendance at an elementary or secondary school….” Act § 202(d)(7)(A); 42 U.S.C. § 402(d)(7)(A). An elementary or secondary school is defined as “a school which provides elementary or secondary education under the laws of the State or other jurisdiction in which it is located.” Act § 202(d)(7)(C)(i); 42 U.S.C. § 402(d)(7)(C)(i).

An Educational Institution is a school that provides elementary or secondary education (grade 12 or below) as determined under the law of the State or other jurisdiction in which it is located. 20 C.F.R. § 404.367(a); POMS RS 00205.200. A student is in full-time attendance if she is meeting both standards of the institution and Federal standards for full-time attendance. POMS RS 00205.300A and B. The Federal standards for full-time attendance require that the student is (1) scheduled for attendance at the 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. 20 C.F.R. § 404.367(a)-(c); POMS RS 00205.300C.

A student attending an online school may be a full-time student if the student meets the Federal standard for full time attendance, and the online school is consistent with the law of the state in which the online school is located. POMS RS 00205.295.

B. Pennsylvania Laws and Guidelines

Because Penn Foster is located in the state of Pennsylvania, we look to Pennsylvania law to determine whether Penn Foster is an Educational Institution.^[7]

Pennsylvania law recognizes only one type of online school as an Educational Institution – cyber charter schools that have been approved by Pennsylvania’s Department of Education. 24 Pa. Cons. Stat. Ann. § 17-1745-A; see POMS PR 08205.42.A. Pennsylvania defines a cyber charter school as “an independent public school established and operated under a charter from the Department of Education and in which the school uses technology in order to provide a significant portion of its curriculum and to deliver a significant portion of instruction to its students through the Internet or other electronic means.” 24 Pa. Cons. Stat. Ann. § 17-1745-A; POMS PR 08205.42.A.

The Pennsylvania Department of Education keeps a list of operating brick-and-mortar and cyber charter schools in Pennsylvania.^[8]

Pennsylvania does not recognize any other type of online school as an educational institution. See POMS PR 08205.042.

C. K~ Is Not Entitled to Benefits Because He Is Not Attending an Educational Institution

Penn Foster does not appear on the list of 2016-17 Cyber Charter Schools from the Pennsylvania Department of Education website.^[9] While the letter from A2~ does reference an accreditation from the Pennsylvania State Board of Private Licensed Schools, this accreditation is about a license for post-secondary institutions that offer career training. ^[10] To receive student benefits, the student must be enrolled in an elementary or secondary school. See Act § 202(d) (1)(E); 42 U.S.C. § 402(d)(1)(E). Thus, this post-secondary accreditation for Penn Foster is not relevant and Penn Foster is not an Educational Institution for the purposes of student benefits.

Moreover, Penn Foster does not meet the federal requirements for full-time attendance, a requirement that K~ has to meet even if Penn Foster could be considered an Educational Institution under Pennsylvania law. See 20 C.F.R. § 404.367(a), (a)(1), (b), (c). The regulations provide at 20 C.F.R. § 404.367(c) that a student is in full-time attendance if his or her scheduled attendance is at least 20 hours per week, unless certain exceptions apply. The POMS also states that “[s]cheduled attendance must be at the rate of at least 20 hours per week.” POMS RS 00205.310.

In Form SSA-1372-BK, K~ indicates that he attends school 25 hours per week. However, Penn Foster’s website indicates that completion time depends on the hours a student can commit to study and that programs are self-paced.^[11] G~ from Penn Foster confirmed that courses are done at a student’s pace rather than set hours per week. Under POMS RS 00205.295, the student should give Form SSA-1372-BK to a school official for certification and return it to the field office. If the school does not certify that the student is in full-time attendance, the claim should be disallowed. Here, P~, the President of Next Level, completed the form. No one from Penn Foster completed SSA-1372-BK.

Although Penn Foster did not complete the required attendance certification and does not appear to require at least 20 hours of scheduled attendance, a finding of full-time attendance may still be justified if attending this school is the only reasonable alternative for K~, or if a medical condition precludes him from 20 hours of attendance. See 20 C.F.R. § 404.367(c)(1)-(2); See POMS RS 00205.310.A. There is no evidence that K~ meets either of these exceptions.

CONCLUSION

K~ began receiving Surviving Child’s benefits on his mother’s record after his mother died in October 2005. K~ turned 18 years old on March XX, 2017. During the relevant period of March 2017 to the date of his alleged graduation, he attended Penn Foster, which is not considered an Educational Institution under Pennsylvania law or the POMS. Additionally, there is insufficient evidence to establish that K~ meets the Federal requirements for full-time attendance. Accordingly, K~ cannot be considered a full-time secondary student for the relevant period of March 2017 to his alleged graduation, and he is not entitled to student benefits during this period of time.

The Keystone National High School in Bloomsburg, PA, provides secondary education in accordance with Pennsylvania law and is, therefore, an educational institution for SSA purposes.

Question Presented

You asked whether Keystone National High School, an internet school located in Pennsylvania, would be considered an educational institution under the Agency's regulations related to eligibility for child's benefits after the attainment of age eighteen.

Opinion

Based on the materials submitted, Keystone National High School would be considered an educational institution under the Agency's regulations.

Background

Tariq A. B~ (Claimant), a resident of North Carolina, currently receives child's insurance benefits on the earnings record of his father, Ahmed B~. Claimant seeks to continue these payments beyond the age of eighteen based on his full-time attendance with Keystone National High School (Keystone), an internet school located in Pennsylvania.

Based on the information provided with the Request for Legal Opinion, Keystone is located in Bloomsburg, Pennsylvania, and is accredited by Northwest Association of Schools and Colleges and the Distance Education and Training Council. See Keystone National High School Website, http://www.keystonehighschool.com/why_keystone/accreditation.php. (last visited January 29, 2009). Keystone's website also notes that as a private school, Keystone is licensed by the State Board of Private Licensed Schools, Commonwealth of Pennsylvania. The website states that Keystone has received core course approval from the National Collegiate Athletic Association. Additionally, Keystone received the Homeschool.com Seal of Approval for 2007 and the United States Distance Learning Association's 2007 Gold award for Best Practices for Distance Learning and Teaching Online.

According to Keystone's online catalogue, to receive a high school diploma, a student must earn twenty-one units of credit and these must include one unit each of Health, Art and Music, three units each of Math and Science, four units each of English and Social Studies, and five units of electives. See http://www.keystonehighschool.com/programs/diploma_program.php. (last visited January 29, 2009). Keystone will accept up to sixteen credits of high school level work from other high schools or home school programs. However, to graduate, students must pass a minimum of five full-credit Keystone courses, one in each core subject plus one elective. The online catalogue explains that students typically enroll in five courses at a time, but may enroll in more if they receive prior permission. Keystone does not have an age limit for enrollment, but students must demonstrate completion of the eighth grade.

A letter dated October 15, 2008, from Jennifer B~, an official with Keystone, stated that Keystone is licensed by the Pennsylvania Department of Education as a private school. Ms. B~ explained that a full credit course is equivalent to 180 hours of instruction, or five hours per week based on a typical school year. Therefore, students would typically spend twenty-five hours per week engaged in their program of study, based on the catalogue's representation that students generally enroll in five courses at a time. Claimant stated that he spends from twenty-five to forty hours per week in study. Claimant satisfies Keystone's criteria for full-time enrollment.

The courses offered by Keystone include: 1) Core Courses such as math, science, social sciences and language arts; 2) Elective Courses such as business, technology and foreign languages; 3) Honors Courses for college-bound students; and 4) Advance Placement (AP) Courses that enable students to take the AP exam for college credit. See https://enroll.keystonehighschool.com/keystoneoes/appmanager/enroll/knhs. (last visited January 29, 2009).

Discussion

To be eligible for child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or a person who died fully or currently insured, a claimant eighteen years or older who is not disabled must be a full-time elementary or secondary school student. See Social Security Act (Act) § 202(d)(1)(B)(i); 42 U.S.C. § 402(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2008). Whether an institution is a school providing elementary or secondary education is determined under the law of the state in which it is located. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(b). Because Keystone is located in Pennsylvania, we look to Pennsylvania law to determine if Keystone's on-line program qualifies as an elementary or secondary educational institution. We solicited a legal opinion from the Region III Office of General Counsel, whose service area includes Pennsylvania. Our request to Region III specifically asked whether Pennsylvania law would recognize Keystone as a school providing elementary or secondary education.

Under Pennsylvania law, parents may choose among four alternative categories of education to satisfy Pennsylvania's compulsory attendance statute: (1) a public school with certain trade school options, see 24 Pa. Stat. Ann. § 13-1327(a) (West 2008); (2) a private school or private tutoring, see id.; (3) a school operated by a "bona fide church or other religious body," see id., § 13-1327(b); or (4) a "home education program," see id., § 13-1327.1. See also Combs v. Homer-Center School District, 540 F.3d 231, 236 (3d Cir. 2008) (laying out the various categories of educational programs offered in Pennsylvania). Keystone is not a public school, but rather a private school licensed by the State Board of Private Licensed Schools under the authority of the Pennsylvania Department of Education. Keystone's license indicates that the school complies with the provisions of the Private Licensed Schools Act and the rules and regulations promulgated thereunder. See 24 Pa. Stat. Ann. § 6508(a). Therefore, Keystone is recognized as a private licensed school under Pennsylvania law.

A child who attends a private licensed school or a nonpublic school that complies with the course requirements identified in paragraph (b) of 24 Pa. Stat. Ann. § 13-1327 is in compliance with Pennsylvania's compulsory attendance statute. See 24 Pa. Stat. Ann. § 13-1327; 22 Pa. Code § 11.32 (2008). Under 24 Pa. Stat. Ann. § 13-1327(b)(2), a school at the secondary level must offer the following courses: English; science; geography; social studies; a foreign language; mathematics; art; music; physical education; health and physiology; and safety education. According to Keystone's website, Keystone offers the following types of courses: (1) Core Courses such as math, science, geography, social sciences and language arts; (2) Elective Courses such as business, technology and foreign languages; (3) Fine Arts Courses such as music and art; (4) Health Courses; (5) Honors Courses for college-bound students; and (6) Advance Placement (AP) Courses that enable students to take the AP examination for college credit. Based on Keystone's course catalog, it appears that Keystone offers all of the courses required by Pennsylvania law.

The analysis provided by Region III indicates Keystone meets all requirements of a private school under Pennsylvania law. Because Keystone meets the licensing and course offerings requirements to qualify as a private school under Pennsylvania law, and because Pennsylvania law recognizes private school education as satisfying the state's compulsory education attendance law, we conclude Keystone is a school that provides primary or secondary education under the Act and the Agency's regulations. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(b). Because the evidence shows that Claimant attends Keystone on a full time basis, he could be eligible for a continuation of his child's benefits beyond age eighteen. See Act § 202(d)(1)(B)(i); 20 C.F.R. §§ 404.350(a)(5), 404.367. Evidence provided in the record demonstrates that Claimant attends Keystone classes twenty-five to forty hours per week. See 20 C.F.R. § 404.367(c) ("To be considered in full-time attendance, your scheduled attendance must be at the rate of at least 20 hours per week"). Because Claimant attends classes on a full-time basis at a school providing secondary education under the law of the state where the school is located, the requirements 20 C.F.R. §§ 404.367(a), (b), and (c) are met. As noted above, because Keystone is a school providing secondary education under Pennsylvania law, the exceptions contained in 20 C.F.R. §§ 404.367(a)(1) and (2), i.e., participation in a home school program or independent study program under the law of the state where the claimant resides, are not relevant, and thus, not included in the present discussion.

Conclusion

Because Keystone is a school that provides primary or secondary education under the laws of Pennsylvania, Keystone is an educational institution for the purposes of determining Claimant's eligibility for child's insurance benefits. Based on his full-time attendance at Keystone, Claimant has established that he is a full-time student, he can qualify for child's insurance benefits under the provisions of section 202(d)(1)(B)(i) of the Act.

Mary Ann S~

Regional Chief Counsel

By: Richard V. B~

Assistant Regional Counsel

The Pennsylvania Leadership Charter School (PALCS) provides secondary education under Pennsylvania law and is, therefore, an educational institution for SSA purposes.

QUESTION PRESENTED

Your memorandum inquired as to whether the cyber charter "home schooling" of Freddie B. L~ (L~) qualifies him as a full-time student entitled to receive student benefits.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Pennsylvania and federal law. For your convenience, we have also cited relevant provisions of the Program Operations Manual System (POMS) derived from the federal law. It is our opinion that L~' attendance at the Pennsylvania Leadership Charter School (PALCS), a cyber charter school approved by the Commonwealth of Pennsylvania, satisfies the federal regulation requirement at 20 C.F.R. § 404.367 for full-time attendance at a secondary program approved by the state in which it is located. We also believe that L~ satisfies the regulation's requirement that he carry a subject load considered full-time for day students under the standards and practices of the school, and that he attend a non-correspondence course of at least thirteen weeks in duration for at least twenty hours a week. Therefore, we believe that L~ satisfies all of the requirements set forth in the federal regulations at 20 C.F.R. § 404.367 for full-time attendance, and is entitled to receive student's benefits beyond attaining the age of eighteen, through the close of the school year in which he turns age nineteen provided that documentation of continued full-time attendance on Form SSA-1372 is obtained.

BACKGROUND

You indicated in your memorandum of February 15, 2007 that L~ was born on December XX, 1988, and reached the age of eighteen on December XX, 2006, when his child's benefits were terminated. You provided a Master Beneficiary Record (MBR) printout indicating that L~ was receiving auxiliary benefits as a child of Frederick A. B~. L~ reports his residence as W~, Pennsylvania. Our research assumes that L~ was a resident of Pennsylvania during the time period relevant to his claim for benefits.

You stated that your research indicated that the legislature of the Commonwealth of Pennsylvania established charter schools by Act 22 in 1997, that cyber charter schools are approved by the Pennsylvania Department of Education, and that you located a listing for the PALCS on the Commonwealth's Department of Education internet site (www.pde.state.pa.us) as an approved operating cyber charter school for 2006-2007. PALCS is headquartered in West Chester, Pennsylvania.

The information that you provided from the Pennsylvania Department of Education web site indicates that charter school applications are submitted to the local school district board of directors where the public charter school is to be located. See also Pa. Cons. Stat. Ann. § 1717-A(c). The charter from the local school district is an agreement or contract between the school district and the charter school. Under the Pennsylvania law in effect for cyber charter schools when PALCS obtained a charter, the school district had the responsibility for approving and renewing charters of cyber charter schools and for oversight of the charter school. The school district was responsible for paying the charter school the increased "Selected Expenditures" for a special education student when the student has been identified as a student in need of special education services and has established an "individualized educational plan." You provided an invoice from the PALCS to the W~ Area School District for Special Education provided monthly from September 2006 through January 2007 in the amount of $5,432.66.

Our research indicates that, effective September 1, 2006, when requesting an initial charter or renewal of its charter, a cyber charter school will apply to the Department of Education rather than the local school district, and that the Department of Education will have oversight over the cyber charter school. However, while still operating under an initial charter issued by a local school district, as is PALCS, the local school district will have oversight of the cyber charter school until it is time to renew the charter. 24 Pa. Cons. Stat. Ann. § 17-1741-A.

You provided a Student's Statement Regarding School Attendance (Form SSA-1372) completed on December 6, 2006, by L~ and Marilyn B. P~, Director of Special Education in the Wyalusing Area School District, Wyalusing, Pennsylvania, the school district in which L~ resides, indicating that L~ attends the PALCS thirty-five to forty hours a week, and that the present school year began on September 6, 2006, and will end in June 2007. The Form SSA-1372 also indicates that L~ attended classes at Wyalusing Valley High School until September 6, 2006, when he began attending PALCS on the internet from home. You provided a documentation indicating the hours that L~ was connected to the PALCS site from September 6, 2006, through January 10, 2007.

DISCUSSION

1. The Applicable Federal Regulations

The federal regulations at 20 C.F.R.§ 404.352 provide that entitlement to child's benefits ends in the month before the month that the child turns age eighteen, if the child is not disabled or the child is not a full-time student. That regulation further provides that a child may receive student's benefits beyond the age of eighteen provided the child is disabled, or is a qualified full-time student who is not disabled. If an individual attains the age of nineteen in a month of full-time attendance and the school operates on a yearly basis, the student benefits terminate two months after the individual turns age nineteen. See 20 C.F.R. § 404.352(b)(3); and POMS RS 00205.325 (When Student Benefits Terminate).

In order to be considered a full-time elementary or secondary student, an individual must satisfy all of the conditions described in the federal regulation at 20 C.F.R. § 404.367. Paragraph (a) of that regulation defines "full-time student" as one who is attending a school program that provides elementary or secondary education as determined under the law of the state in which the school is located. That regulation further provides that an individual may also satisfy the definition of full-time student if 1) the individual participates in instruction provided at home in accordance with the home school law of the state in which the individual resides; or 2) an individual is in an independent study elementary or secondary educational program in accordance with the law of the state in which he resides that is administered by the local school district. 20 C.F.R. § 404.367(a)(1), (2).

Paragraph (b) of the regulation sets forth requirements for achieving the status of full-time attendance in the three educational settings described above. The course must be a non-correspondence course of at least thirteen weeks in duration, and the individual must carry a subject load that is considered full-time for day students under the institution's standards and practices. If the individual is in a home-schooling program, the individual must carry a subject load that is considered full-time for day students under the standards and practices set by the state. Paragraph (c) of the regulation provides that to be in full-time attendance, an individual's scheduled attendance must be at the rate of at least twenty hours per week.

In summary, for purposes of our analysis, because L~, a resident of Pennsylvania, is attending a cyber charter school in Pennsylvania, that school must be approved to provide elementary or secondary education by the Commonwealth of Pennsylvania, the jurisdiction in which the school is located. L~ must also show that the school he attends considers him to be attending full-time based on the school's standards and practices for day students, including carrying a subject load considered full-time for day students, that he is enrolled in a course that is not a correspondence course of at least thirteen weeks' duration at the rate of at least twenty hours a week. 20 C.F.R.§ 404.367; see also POMS RS 00205.300 (What is Full-Time Attendance (FTA)) , RS, 00205.330 (Correspondence Courses) and RS0025.350 (Determining FTA).

L~ Is Attending a School Providing Secondary Education As Determined by the Commonwealth of Pennsylvania.

Although the text of your memorandum inquired as to whether the Cyber Charter "home schooling" of Freddie B. L~ meets requirements under the law of Pennsylvania" we believe that, notwithstanding the fact that PALCS is an internet school and can be attended by participating from home, there are significant features that distinguish PALCS from home schooling. L~' cyber charter school experience is distinguishable from home schooling (discussed in POMS at RS 00205.275) in that the Pennsylvania Department of Education approved cyber charter schools as public schools, the parent is not primarily responsible for teaching the student as evidenced by the description of the internet classes taught by teaches available in the PALCS Handbook, and the Wyalusing Valley School District's Director of Special Education, not the parent, signed as the certifying official on Form SSA-1372, Student's Statement Regarding School Attendance. Therefore, our analysis will focus on whether L~ is attending a school that provides secondary education as determined under the law of Pennsylvania. 20 C.F.R. § 404.367(a).

The most significant characteristic of PALCS for purposes of our analysis is that it is a creature of the General Assembly, the legislative body of the Commonwealth of Pennsylvania. The General Assembly enacted legislation in 1997 providing for a process for approval of charter applications for existing public schools or new schools. 20 Pa. Cons. Stat. Ann. § 1717-A. Effective July 4, 2004, the General Assembly included "cyber charter schools" in the definition of charter school. 20 Pa. Cons. Stat. Ann. § 17-1703-A. Moreover, the General Assembly, effective September 1, 2006, assigned the responsibility for approving, issuing, and renewing educational charters to the Pennsylvania Department of Education; that Department listed PALCS as a school that provides secondary education for the school year 2006-07. See 24 Pa. Cons. Stat. Ann. § 17-1741-A, and www.pde.state.pa.us. Further confirming the PALCS' status as an approved school is the Report of Contact that you provided, where Marilyn P~, the director of special education at the Wyalusing Area School District, stated that the cyber charter school is recognized as an accredited educational alternative by the Commonwealth, and that the Wyalusing district monitors L~' curriculum and educational goal attainment through regular meetings with parents. Therefore, the information that you provided indicates, in our view, that L~ satisfies the federal regulation requirement of attending "a school which provides elementary or secondary education as determined under the law of the State . . . in which it is located." 20 C.F.R. § 404.367(a); POMS RS 00205.200A (What is An Educational Institution).

3. L~ Is Attending A School that Provides a Full-Time Secondary Program and Is Considered by that School to be Carrying a Subject Load that Is Full-Time for Day Students.

Our research confirms that PALCS complies with the Commonwealth of Pennsylvania's requirement for every secondary school, including a cyber charter school, that it be open 180 days a year and in operation for 990 hours per year. See Pa. Cons. Stat. Ann. § 17-1715-A(9); 22 Pa. Code § 11.1, and PALCS Parent and Student Handbook 2006-2007 (Handbook), available at www.PALCS.org as a link in the Frequently Asked Questions section. Charter schools must report to the student's school district of residence when a student has accrued three or more days of unexcused absences. It is the responsibility of the school district to enforce the compulsory attendance laws in accordance with the Pennsylvania Public School Code.

Although no daily hours of attendance are explicitly required by the Pennsylvania statutes or code of regulations, the requirement of 990 hours of operation a year represents a daily attendance rate requirement of 5.5 hours per day. There are no stated hours of required daily connectivity in the information provided on the PALCS website. However, a PALCS student is required to log on every day that the cyber school is in session unless his absence is excused for the reasons stated in the Handbook. A PALCS student is also required to complete courses that satisfy the Pennsylvania requirements for graduation from a secondary school. See PALCS Handbook at 57.

According to your Report of Contact with Marilyn P~, on behalf of the Wyalusing Area School District, which pays PALCS for the Special Education services provided to L~, the school district considers L~ to be in full-time attendance based on his verified attendance at the PALCS of well over forty hours a week. You provided a log of hours supplied by the PALCS indicating 454 hours of connectivity for L~ from September 9, 2006 through January 10, 2007. Over this period of approximately fifteen weeks that the cyber school was in session, L~ was online more than thirty hours a week. Your Report of Contact with Marjon S~ of the PALCS indicates that these hours represent only the time spent online, and do not include intervening time spent offline doing examples, readings, and otherwise completing lessons. In addition, Marilyn P~ indicated that L~' school day actually approximates eight hours.

With respect to the regulatory requirement at 20 C.F.R. § 404.367(b) that student is "carrying a subject load which is considered full-time for day students under the institution's standards and practices" we note that Marilyn P~ monitored L~' course work and his educational goals, and signed a statement to the effect that he was attending school approximately forty hours a week. We believe that because she is charged with oversight of his course work, and approved his course work as well as certified that he was attending PALCS full-time, this action satisfies the requirement that a student carry a course load consistent with that of a full-time day student at PALCS. See POMS RS 205.350 (stating that SSA policy is to accept the school official's statement regarding full-time attendance).

Therefore, based on the information that you provided, we believe that L~ has complied with the standards and practices expected of a full-time student who attends a Pennsylvania secondary school through December 6, 2006, the date that Marilyn P~ signed the Form SSA-1372. We recommend that you obtain further documentation of L~' continued attendance since December 6, 2006 at PALCA on Form SSA-1372 .

4. L~ Is Enrolled in a Non-correspondence Course of at Least Thirteen Weeks' Duration.

Although the regulations do not define a correspondence course, the POMS at RS 00205.330 (What is Full-Time Attendance) define a 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."

We believe that the information that you provided, along with our additional research, indicates that L~ is not enrolled in a correspondence course. According to the PALCS website, www.palcs.org, students who require Special Education are assigned to Special Education teachers who work closely with families to monitor the progress of students as they attend online classes. The teachers are in touch "constantly" through email and telephone calls. At PALCS live teachers provide instruction in the online classroom allowing students to attend class and do class work wherever they can connect to the World Wide Web. PALCS utilizes fully interactive technology that allows for live classroom instruction, interactive discussion online, and periodic conferences for students. Therefore, this interactive educational experience is significantly distinguishable from a traditional correspondence course described in the POMS as a school that teaches by mailing lessons and exercises to the student.

Moreover, another feature that distinguishes the PALCS from a remote correspondence course, is the fact, as Marilyn P~ indicated in your Report of Contact on January 10, 2007, that the Wyalusing Area School District monitors L~' curriculum and educational goal attainment, and approves his coursework. This additional oversight and involvement of the local school district sets L~' educational program apart from a traditional correspondence course. Therefore, we believe that L~' PALCS experience is not that of a correspondence course as contemplated by the regulations or the POMS.

The information that you provided indicates that L~ meets the requirement of enrollment in a course of study that is of at least thirteen weeks' duration. The POMS at RS 00205.315 (Duration of a Course of Study) clarify SSA policy that duration of a "course of study" refers to the entire course of study (e.g., a four-year high school program), and not the individual course offering or other segment of the entire course (i.e., a semester or summer session). L~' is enrolled in a secondary education school that contemplates a four-year course of study ending in graduation. See PALCS Handbook. Therefore, L~ attends a course that exceeds a duration of thirteen weeks. Marjon S~ indicated that L~ is taking courses at the ninth grade level. The fact that he will not graduate from high school before turning age nineteen does not diminish the fact that he is enrolled in a course of study that exceeds thirteen weeks' duration.

5. L~ Meets the Attendance Requirement in 20 C.F.R.§ 404.357(c) of 20 Hours a Week.

Although the federal regulation is silent as to the method of proving full-time attendance, the POMS at RS 00205.350 (Determining FTA) instructs that Form SSA-1372 is to be used to verify full-time attendance. The POMS provision specifies that the student must complete and sign page two of the SSA-1372, then take the form to a school official for completion of the "Certification by School Official" portion of the form on page two. The school official must answer the questions and complete the signature line in the "Certification by School Official" part of the form. If the school official answers "yes" to both questions and completes the signature line, SSA considers the student's school attendance to be verified.

You provided a Form SSA-1372 completed by L~ and Marilyn B. P~, Director of Special Education in Wyalusing Valley School District, indicating that L~ attends the PALCS school thirty-five to forty hours a week. Because Marilyn P~, as a representative of the local school district, has oversight of L~' participation in the PALCS, we have no reason to question that this form can be relied upon to determine that L~ satisfies the federal requirement of attendance of at least twenty hours a week. Furthermore, your report of contact with Marjon S~, an official of the PALCS, supports the information provided on the SSA-1372 regarding L~' attendance of more than twenty hours per week. However, as previously noted, we recommend that you obtain updated information regarding L~' attendance on Form SSA-1372 for the period following December 6, 2006, when Marilyn P~ signed the SSA-1372 that you provided to us.

CONCLUSION

We believe that because L~ (1) is attending PALCS, a cyber charter school that provides secondary education and has been approved as such by the Commonwealth of Pennsylvania; (2) is attending PALCS full-time according to the school and the supervising school district and consistent with the Pennsylvania requirements for day students; (3) is not enrolled in a correspondence course; and because (4) his course exceeds thirteen weeks in duration; and (5) he attends PALCS classes in excess of twenty hours a week; he is entitled to student's benefits while attending the PALC charter school provided that he continues to provide satisfactory documentation of full-time attendance.

Michael M~

Regional Chief Counsel

By: Patricia M. S~

Assistant Regional Counsel