TN 48 (06-16)

A. PR 16-093 Reply to Request for Updated Status of the Law Regarding Online Schools in Region III Jurisdictions (Update of Maryland law)¹

Date: March 8, 2016

1. Syllabus

Except for Pennsylvania (in limited circumstances), Maryland, and Virginia, none of the states in Region III recognizes online schools as educational institutions.  Therefore, a legal opinion should be requested from OGC on a case-by-case basis relating to title II issues for students attending online schools in Delaware, District of Columbia, and West Virginia.

2. Opinion

QUESTION PRESENTED

In January 2010, OGC was asked whether the states in Region III recognize online schools in order to determine whether these schools are educational institutions for SSA purposes, as defined in POMS RS 00205.200.

SUMMARY

Our updated research indicates that three states in Region III, Pennsylvania, Maryland, and Virginia, now recognize online schools as educational institutions. Pennsylvania, however, recognizes only one type of online school—cyber charter schools that have been approved by the state.

BACKGROUND

Under POMS RS 00205.295, a child attending an online school may be a full-time student if the child meets SSA’s standards for full-time attendance; the law of the state in which the student resides recognizes online schools as educational institutions; the online school the student attends meets the requirements of state law in which the student lives; and the student meets all other requirements for benefits.

DISCUSSION

Pennsylvania (PR 08205.042)

There has been no change in Pennsylvania law with regard to online schools since January 2010. Pennsylvania recognizes one type of online school as an educational institution—cyber charter schools that have been approved by Pennsylvania’s Department of Education. On July 1, 2002, Pennsylvania established cyber charter schools under 24 Pa. Cons. Stat. Ann. § 17-1745-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. § 17-1703-A. The curriculum of a cyber charter school must meet the requirements of 22 Pa Code, Ch. 4, et seq. (or any subsequent regulations promulgated to replace it), dealing with academic standards and assessment for schools, generally.

24 Pa. Cons. Stat. Ann. § 17-1747-A(1). Pennsylvania does not recognize any other type of online school as an educational institution.

Delaware (PR 8205.009)

There has been no change in Delaware law with regard to online schools since January 2010. Our research revealed that Delaware does not recognize online schools as educational institutions. Delaware’s requirements for schools are outlined at 14 Del. Code Regs § 500, et seq., dealing with state standards for curriculum and instruction.

Maryland (PR 08205.023)

Effective September 1, 2011, the Maryland state legislature approved legislation establishing virtual schools. See MD EDUC, §§ 7-1401-1408. Under Maryland law, county boards of education are permitted to establish virtual schools, subject to the approval of the state Department of Education. See MD EDUC, § 7-1402. Once a Maryland virtual school is approved, it is subject to all applicable federal and state laws and regulations governing the operation of a public school, and any student who is eligible for enrollment in a Maryland public school may enroll in a virtual school. Id. Virtual schools in Maryland are required to provide each enrolled student with: 1) access to a sequential curriculum approved by the state Board of Education that meets or exceeds the standards adopted by the county board in the county of the virtual school’s principal place of business; (2) the same length of time for learning opportunities per academic year that is required for public school students, unless the virtual school can show that a student has demonstrated mastery or completion of the subject area; and (3) regular assessment in the core areas of instruction as required by regulations adopted by the State Board of Education. See MD EDUC, § 7-1403. A virtual school in Maryland is also required to maintain an administrative office in Maryland that will be considered to be its principal place of business. See MD EDUC, § 7-1406. (2016 Update: please note that the Maryland State Board of Education regulations provide that a school may not operate without a Certificate of Approval from the State Board. Md. Admin. Code § 13A.09.09.01B (2015)).

Virginia (PR08025.052)

Effective July 1, 2010, the Commonwealth of Virginia approved legislation establishing virtual school programs. See Va. Code Ann. § 22.1-212.23. A virtual school program is defined as a series of online courses (i) with instructional content delivered primarily electronically using the Internet or other computer-based methods; (ii) taught by a teacher primarily from a remote location, with student access to the teacher given synchronously, asynchronously, or both;

(iii) delivered as a part-time or full-time program; and (iv) having an online component with online lessons and tools for student and data management. Id. The virtual school program must be provided by a “multidivision online provider.” A “multidivision online provider” is defined as

a private or nonprofit organization that enters into a contract with a local school board to provide online courses or programs through that school board to students who reside in Virginia both within and outside the geographical boundaries of that school division; (ii) a private or nonprofit organization that enters into contracts with multiple local school boards to provide online courses or programs to students in grades K through 12 through those school boards; or (iii) a local school board that provides online courses or programs to students who reside in Virginia but outside the geographical boundaries of that school division. See Va. Code Ann. § 22.212.23. “Multidivision online providers” must be approved by the Superintendent of Public Instruction. See http://www.doe.virginia.gov/instruction/virtual_learning/virtual_schools/ (last visited April 29, 2013). In the case of state-recognized virtual private schools, the Virginia Board of Education has authorized the Virginia Council for Private Education (“VCPE”) to oversee accreditation of nonpublic preschool, elementary, and secondary schools in the Commonwealth. See Va. Code Ann. § 22.1-19; see also http://www.vcpe.org (last visited April 29, 2013).

West Virginia (PR 08025.054)

There has been no change in West Virginia law regarding online schools since January 2010.

Our research revealed that West Virginia does not recognize online schools as educational institutions. West Virginia’s requirements for schools are outlined in W.Va.Code. R. § 126-42-1, et seq., dealing with Assuring the Quality of Education: Regulations for Education Programs.

District of Columbia (PR 08025.010)

There has been no change in District of Columbia law regarding online schools since January 2010. Our research revealed that the District of Columbia does not recognize online schools as educational institutions. The District of Columbia’s requirements for schools are outlined in D.C. Mun. Regs., tit. 5, § 300, et seq., dealing with curriculum and testing.

CONCLUSION

Except for Pennsylvania (in limited circumstances), Maryland, and Virginia, none of the states in Region III recognizes online schools as educational institutions. Therefore, with the exception of students conforming to the requirements for online schools under Pennsylvania, Maryland, and Virginia law, a legal opinion should be requested from OGC on a case-by-case basis relating to title II issues for students attending online schools.

Nora Koch,

Acting Regional Chief Counsel

By:

Heather Benderson

Assistant Regional Counsel

Anne von Scheven

Assistant Regional Counsel

B. PR 16-065 Eligibility for Child's Insurance Benefits as a Full-Time Elementary or Secondary School Student Enrollment at International Connections Academy

DATE: January 14, 2016

1. Syllabus

International Connections Academy (ICA) is not an educational institution offering elementary or secondary education under Maryland law. Under Maryland law, “a school, except a school operated by a bona fide church organization, may not operate without a Certificate of Approval from the State Board.” ICA does not indicate that it has a Certificate of Approval from the Maryland State Board of Education; therefore, ICA does not qualify as an educational institution under Maryland law.

2. Opinion

QUESTION

You asked whether International Connections Academy (ICA), an online entity located in Maryland, is an online educational institution for determining if the claimant, a Mississippi resident, qualified for child's insurance benefits (CIB) as a full-time elementary or secondary school student. You also asked if the claimant was in full-time attendance based on his instruction through ICA.

OPINION

ICA is not an educational institution offering elementary or secondary education under Maryland law and the claimant was not in full-time attendance at ICA for determining his eligibility for CIB.

BACKGROUND

According to the information provided, J~ (Beneficiary) was receiving CIB on the earnings record of his father G~, the number holder (NH), who was entitled to disability insurance benefits. After NH withdrew Claimant from Oak Grove High School in November 2014, the Social Security Administration (SSA) terminated Claimant's CIB because he was over age eighteen and SSA determined he was not enrolled in school. SSA also assessed an overpayment. NH requested waiver of recovery of the overpayment, claiming SSA should not have terminated Claimant's CIB because he enrolled in ICA in November 2014 after withdrawing from Oak Grove High School. Claimant received a diploma from ICA on June XX, 2015.

On May XX, 2015, Claimant completed a Student's Statement Regarding School Attendance form (Form SSA-1372), providing a Mississippi mailing address. Claimant indicated he began attending ICA, a private, online school located in Baltimore, Maryland, on November XX, 2014, and expected to graduate on June XX, 2015. Claimant reported he was scheduled to attend ICA for forty hours per week. Claimant also reported he was not disabled, married, or receiving payment from an employer to attend school. R~, a Senior Manager of School Counseling, completed and signed the Certification of School Official page of Form SSA-1372 and indicated the information Claimant provided was correct. R~ also indicated ICA's course of study lasts at least thirteen weeks and ICA operated on a quarterly/ semester system that required reenrollment.

ICA's website describes ICA as "an accredited, online private school serving students in grades K–12 throughout the United States and abroad," with its administrative office located in Baltimore, Maryland. ICA, About ICA, http://www.internationalconnectionsacademy.com/ private-school/our-school/about.aspx (last visited Dec. 18, 2015). ICA's website states ICA is accredited by the Middle States Association of Colleges and Schools and the Southern Association of Colleges & Schools Council on Accreditation and School Improvement, with provisional accreditation from the Northwest Accreditation Commission. See ICA, Frequently Asked Questions, http://www.internationalconnectionsacademy.com/private-school/our-school/faqs.aspx (last visited Dec. 18, 2015).

DISCUSSION

To be eligible for CIB on the earnings record of an individual entitled to disability insurance benefits, a claimant who is eighteen years or older and not disabled must be a "full-time elementary or secondary school student." See Social Security Act (Act) § 202(d)(1)(B)(i), (d)(7)(A); see 20 C.F.R. §§ 404.350(a)(5), 404.367 (2015);* Program Operations Manual System (POMS) RS 00205.001.A. A claimant 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.

A claimant also must attend school full time to qualify as a "full-time elementary or secondary school student." See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.001.A; POMS RS 00205.300.A. A claimant 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, a claimant 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. A claimant 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. A claimant meets the Federal standards 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.

Claimant and ICA's website describe ICA as a private school located in Baltimore, Maryland. See ICA, http://www.internationalconnectionsacademy.com/private-school/home.aspx (last visited Dec. 18, 2015). Therefore, we look to Maryland law to determine whether ICA is a school that provides elementary or secondary education. Under Maryland, law, a nonpublic "school" is "an educational program that is provided for an organized group of students, at least two of whom do not have the same parents or legal guardians and at least two of whom are not being instructed on a regular daily basis by the students' parents or legal guardians, that is governed and operated by a legal authority, excluding the federal government or any State, county, or municipal agency or division of these." Md. Admin. Code § 13A.09.09.02.B(12) (2015). "A school, except a school operated by a bona fide church organization, may not operate without a Certificate of Approval from the State Board." Md. Admin. Code § 13A.09.09.01.B (2015). "A school that uses distance learning for any part of or the entire educational program shall comply with the requirements of this chapter." Md. Admin. Code § 13A.09.09.01.D. In addition, an individual or entity "may not use the name . . . 'school' . . . or 'academy' or word of like meaning, in such manner as to connote the offering of a high school . . . unless the individual [or entity] shall have first obtained a certificate of approval from the State Board of Education in the manner provided by the law." Md. Admin. Code § 13A.09.01.01.A (2015).

ICA's website indicates ICA is accredited by regional accrediting organizations for higher education institutions, but it does not indicate ICA has a Certificate of Approval from the Maryland State Board of Education. See ICA, Frequently Asked Questions, http://www.internationalconnectionsacademy.com/private-school/our-school/faqs.aspx (last visited Dec. 18, 2015). Thus, ICA is not an educational institution under Maryland law. 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. In addition, because ICA is not an education institution, Claimant's study through ICA did not satisfy the requirements 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.

A claimant also may qualify as an elementary or secondary school student if he or she receives instruction in elementary or secondary education at home under the home school law of the State or other jurisdiction where the individual resides or if he or she is in an independent study program administered by the local school or school district in accordance with the law of the State or jurisdiction in which he or she resides. See 20 C.F.R. § 404.367(a)(1), (a)(2); POMS RS 00205.275.A; POMS RS 00205.285. Claimant did not allege he was home schooled, and none of the information provided suggests he was home schooled. The available information also does not indicate ICA was an independent study program administered by local school or school district in Mississippi, where Claimant resides. Therefore, Claimant could not qualify as a full-time elementary or secondary school student based on home schooling or independent study.

CONCLUSION

ICA is not an educational institution under Maryland law, and because ICA is not an educational institution, Claimant was not in full-time attendance. Therefore, Claimant was not a full-time elementary or secondary school student for determining his eligibility for CIB.

Mary Ann Sloan

Regional Chief Counsel

By: Brian C. Huberty

Assistant Regional Counsel

Footnotes:

[1]

We submit this memo to replace the 2010 memo at PR 08205.023 (Maryland). This memo reflects the previously issued 2013 update for all of the states in Region III, as well as a 2016 update of the state of Maryland only.