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 13-033 Reply to Your Request for a Legal Opinion as to Whether K12 International Academy, an Online School Located in Virginia, Qualifies as an Educational Institution in Virginia – Britney (SSN~)

DATE: December 17, 2012

1. SYLLABUS

K12 International Academy (a/k/a K12 Virtual Schools, LLC) (“K12”), is a multidivision online provider located in Virginia. K12 is approved by the Virginia Board of Education as a virtual school program for students who reside in Virginia and is accredited by the Commonwealth of Virginia as a state-recognized virtual private school. K12 is an educational institution under Virginia law, therefore it is an educational institution (EI) for SSA purposes. The student must also meet Federal standards for full-time attendance and all other requirements for the payment of benefits.

2. OPINION

QUESTION PRESENTED

You asked whether K12 International Academy, a Virginia online school, qualifies as an educational institution for purposes of determining whether Britney is entitled to full-time student benefits.

SUMMARY

THIS OPINION SUPERSEDES PR 10 053 (STATE SURVEY REGARDING LEGAL RECOGNITION REQUIREMENTS FOR ONLINE SCHOOL) AND PR 11 136 (STATUS OF LIBERTY UNIVERSITY ONLINE ACADEMY AS AN EDUCATIONAL INSTITUTION) INSOFAR AS THEY STATE THAT THE COMMONWEALTH OF VIRGINIA DOES NOT RECOGNIZE ONLINE SCHOOLS. EFFECTIVE JULY 1, 2010, THE COMMONWEALTH OF VIRGINIA ENACTED LEGISLATION RECOGNIZING ONLINE SCHOOLS.

K12 International Academy (a/k/a K12 Virtual Schools, LLC) (“K12”), is a multidivision online provider approved by the Virginia Board of Education as a virtual school program for students who reside in Virginia. It is also a state-recognized virtual private school. Because Britney attends K12 as a private student, and it is accredited by the Commonwealth of Virginia as a state-recognized virtual private school, in the circumstances of this case, it qualifies as an educational institution. Based upon the information provided, Britney also meets the standards for full-time attendance.

BACKGROUND

According to the information that you provided us, Britney’s mother, Kathleen, was notified that Britney’s child’s benefits would stop in March 2012, when Britney attained age 18, unless she qualified for student benefits as a full-time student. In response, Britney’s mother submitted a binder of records, including Britney’s statement that she was a full-time private online student attending K12 between September 6, 2011 to July 31, 2012, and was expecting to graduate in August 2012 (Binder Exh. 3). In addition, Britney’s mother submitted a certification from the registrar of K12 that this information was correct, as well as a letter from the registrar confirming that Britney was enrolled as a full-time twelfth grade student (Binder Exh. 4). Britney’s mother also submitted a record of Britney’s courses and attendance at K12 for her twelfth-grade classes (Binder Exhs. 89).

DISCUSSION

The Social Security Act provides for the payment of child’s insurance benefits (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 (2012). A child over the age of 18 may continue to receive CIB if the child is in full-time attendance at an educational institution, which is a school that provides elementary or secondary education as determined under the law of the state in which the school is located. ² 20 C.F.R. § 404.367; Program Operations Manual System (POMS) RS 00205.001. Pursuant to POMS RS 00205.295, a child attending an online school may be a full-time student if she (1) meets the standards for full-time attendance and (2) the online school is consistent with the law of the state in which the online school is located.

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 with instructional content that (i) is delivered by a multidivision online provider primarily electronically using the Internet or other computer-based methods; (ii) is taught by a teacher primarily from a remote location, with student access to the teacher given synchronously, asynchronously, or both; (iii) is delivered as a part-time or full-time program; and (iv) has an online component with online lessons and tools for student and data management. Id.

Multidivision online providers ³ must be approved by the Superintendent of Public Instruction. See http://www.doe.virginia.gov/instruction/virtual_learning/virtual_schools/ (last visited December 10, 2012). On May 2, 2011, the Superintendent of Public Instruction approved K12 as a multidivision online provider. See Approved Multidivision Online Providers (Provider List and Approved Multidivision Online Provider Summaries), https://p1pe.doe.virginia.gov/amop_public/ (last visited December 10, 2012).

Britney is attending K12, located in Virginia, as a private student (Binder Exh. 3). 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 December 10, 2012). K12 has been accredited by VCPE as a state-recognized virtual private school in Virginia. See http://77241.inspyred.com/images/2012-11-13%20Distance%20Ed.pdf (last visited December 10, 2012). On December 10, 2012, the undersigned spoke to Cheri, Virtual School Programs Coordinator for the Virginia Department of Education, who confirmed that a student attending a state-recognized virtual private school in Virginia on a full-time basis would meet the legal requirements for attending school full time in Virginia. Thus, because K12 is an online school consistent with the law of the state in which it is located (i.e., Virginia), it meets the definition of an educational institution. 20 C.F.R. § 404.367(a).

Finally, based on the information you provided, Britney also qualifies as a full-time student.

To qualify as a full-time student, the regulations require that the student be in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration, and attend the school at the rate of at least 20 hours per week. 20 C.F.R. § 404.367(b)-(c);

POMS RS 00205.001, POMS RS 00205.300. On the Student’s Statement Regarding School Attendance, Britney stated that she was attending K12 between 9/6/11 and 7/31/12, expected to graduate in August 2012, would be enrolled on a full-time basis until graduation, and attended classes 35-40 hours per week (Binder Exh. 3). K12’s Registrar, Jon, completed a Certificate by School Official dated January 12, 2012, confirming that the information provided by Britney was correct, and that the school’s course of study is at least 13 weeks in duration (Binder Exh. 4). Jon also wrote a letter dated January 11, 2012, stating that Britney was a full-time twelfth-grade student at K12 (Binder Exh. 6). Furthermore, Britney’s attendance sheet shows a total of 126 days in school, totaling 800 hours and 17 minutes as of April 1, 2012 (Binder Exh. 9). Accordingly, the information provided reflects that Britney meets the requirements of a full-time student.

CONCLUSION

Because K12 is an online school consistent with the law of the state in which it is located (Virginia), and because the information provided supports a finding that Britney is a full-time student, based on the underlying facts of this case Britney qualifies for full-time student benefits.

Eric P. Kressman

Regional Chief Counsel

By: _______________

Eda Giusti

Assistant Regional Counsel

C. PR 11-136 Status of Liberty University Online Academy as an Educational Institution Number Holder – Earnest Claimant – Christopher

DATE: August 4, 2011

1. SYLLABUS

The Liberty University Online Academy (LUOA), located in Lynchburg, Virginia, is an online, home schooling, academic program. Although Virginia does not recognize online schools as educational institutions (EI), the Virginia General assembly recently published standards for providers of online courses. The providers are multidivision online providers, and the Superintendent of Public Instruction in Virginia must approve them.  It is possible for a student to take all of his or her courses through an online program approved by the Superintendent of Public Instruction.  A student enrolled in an online program offered by a local school division, however, must be enrolled in a public school in Virginia and can receive credit only for courses approved by the local school board.  The Superintendent of Public Instruction has not approved LUOA as a multidivision online provider. Virginia does not recognize LUOA as an EI under Virginia law, and LUOA is, therefore, not an EI for SSA purposes.

2. OPINION

OPINION

We believe LUOA is not an educational institution for purposes of determining the claimant’s continuing eligibility for child’s insurance benefits.  The claimant does not qualify as a full-time elementary or secondary school student because LUOA is not a recognized educational institution in Virginia, the state in which the school is located, and because the claimant is not a home school student under Georgia law. Because LUOA is not an educational institution, we do not address whether the claimant is attending LUOA full-time.

BACKGROUND

Christopher (Claimant) received child’s insurance benefits until he reached eighteen years of age in June 2011. Claimant resides in Georgia. Claimant’s mother reported Claimant began attending LUOA in March 2011.  LUOA is an online, home schooling, academic program, based in Lynchburg, Virginia. See LUOA, About Online Homeschooling, http://www.libertyonlineacademy.com/about/ (last visited August 1, 2011); LUOA, Contact Information, http://www.libertyonlineacademy.com/contact/ (last visited August 1, 2011). Claimant reported he “attends” LUOA 40 hours per week.  Marianne , an academic advisor at LUOA, stated Claimant is enrolled in six courses and logs in approximately 30 hours per week on average. LUOA’s school year consists of 180 days and allows students 10 months to complete the school year.  LUOA, What to Expect With Online Homeschooling, http://www.libertyonlineacademy.com/index.cfm?PID=14797 (last visited August 1, 2011). Marianne stated Claimant should complete his eleventh grade classes by the end of August 2011.

DISCUSSION

Eligibility for Child’s Insurance Benefits as a Full-Time Elementary or Secondary School Student–Generally

To be eligible for child’s insurance benefits on the earnings record of an insured person who is entitled to old-age or disability benefits, 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); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2011). To qualify as a “full-time elementary or secondary school student,” a student must attend a recognized educational institution, which is a school that provides elementary or secondary education as determined under the law of the state in which the school is located. See Act § 202(d)(7)(C)(i); 20 C.F.R.

§ 404.367(a); Program Operations Manual System (POMS) RS 00205.200A.  A student attending an online school may be a full-time student if the student meets the other requirements for full-time attendance and the online school meets the requirements for recognition under the law of the state in which the online school is located. See POMS RS 00205.295B.   

A student may also qualify as “full-time elementary or secondary school student” if he is “instructed in elementary or secondary education at home in accordance with a home school law of the State . . . in which [he] reside[s].” 20 C.F.R. § 404.367(a)(1). A home school student must carry a subject load that is considered full-time for day students under standards and practices set by the State in which he resides. 20 C.F.R. § 404.367(b).  Also, a student must be scheduled to attend at least 20 hours per week to meet the requirements of full-time attendance. 20 C.F.R. § 404.367(c).

Status of LUOA as an Educational Institution in Virginia

Because LUOA is located in Virginia, we look to Virginia law to determine whether LUOA qualifies as an elementary and/or secondary school. Virginia does not recognize online schools as educational institutions. See POMS PR 08205.052B. On July 28, 2011, the Office of the Regional Chief Counsel, Region III (Region III) verified this precedent opinion is still correct.  However, Region III also noted the Virginia General Assembly recently promulgated standards regarding providers of online courses, known as multidivision online providers.  Region III also advised that the Superintendent of Public Instruction in Virginia must approve multidivision online providers. Region III advised that a student could conceivably take all his courses through an online program approved by the Superintendent of Public Instruction, but cautioned that any student enrolled in any online program offered by a local school division must be enrolled in a public school in Virginia and can only receive credit for courses that his local school board has approved.

The Superintendent of Public Instruction has not approved LUOA as a multidivision online provider. See Approved Multidivision Online Providers, Provider List, https://p1pe.doe.virginia.gov/amop_public/ (last visited August 1, 2011). In addition, Claimant, a Georgia resident, is not enrolled in a public school in Virginia. Accordingly, Claimant has not satisfied the requirements for taking courses through a virtual program under Virginia law.  LUOA does not qualify as an elementary or secondary school under Virginia law.

Home Schooling Under Georgia Law

We look to Georgia law to determine whether Claimant qualifies as home school student. See 20 C.F.R. § 404.367(a)(1).  Georgia recognizes three types of educational entities: public schools, private schools, and home study programs. Ga. Code Ann. § 20-2-690(a) (West 2011). Parents or guardians may teach their children in a home study program meeting the following requirements:  (1) the parent, parents, or guardian must submit a declaration of intent to use a home study program to the superintendent of schools of the local school district in which the home study program is located; (2) the declaration must include certain enrollment and address information; (3) the parent, guardian, or tutor providing instruction must possess at least a high school diploma or a general educational development diploma; (4) the home study program must provide a basic academic educational program; (5) the home study program must provide instruction 180 school days per year with each school day consisting of at least four and one-half school hours, unless the child is physically unable to comply; (6) attendance records must be kept and submitted each month to the local school superintendent; (7) students are subject to an appropriate nationally standardized testing program administered in consultation with a person trained to administer such tests; and (8) the home study program instructor must write an annual progress report. Ga. Code Ann. § 20-2-690(c).

Claimant’s education through LUOA does not meet the requirements for home schooling in Georgia. There is no evidence that Claimant’s mother submitted a declaration of intent to the superintendent of Claimant’s local school district; kept attendance records and submitted those records to the local superintendent; or wrote an annual progress report; and no evidence that Claimant was subject to a nationally standardized testing program. ** We note that LUOA, rather than a parent or guardian, is providing instruction to Claimant. See Ga. Code Ann. § 20-2-690(c) (“[p]arents or guardians may teach their children in a home study program”). The statute, however, allows a parent or guardian to employ a tutor who holds a high school or general education development diploma. See Ga. Code Ann § 20-2-690(c)(3). It is not necessary to address whether LUOA qualifies as a “tutor” because Claimant’s education through LUOA does not otherwise satisfy Georgia’s home-schooling requirements. 

Full-Time Attendance

Because LUOA does not qualify as an elementary or secondary school under Virginia law and Claimant does not qualify as a home school student under Georgia law, Claimant does not meet the definition of a “full-time elementary or secondary school student.” See 20 C.F.R. § 404.367(a).  Accordingly, we do not address whether Claimant is attending LUOA full-time.

CONCLUSION

Clamant does not establish he is a full-time elementary or secondary school student because LUOA is not a recognized educational institution under Virginia law and Claimant does not qualify as a home school student under Georgia law.  As a result, Clamant is not eligible for child’s insurance benefits.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: _______________

Alison E. Loy

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.

[2]

^. While Britney resides in Maryland, the relevant issue is whether the school is an educational institution as determined under the law of the state in which the school is located, and not by the residence of the student.

[3]

^. A multidivision online provider is defined as (i) 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.