When You Are a Full-Time Elementary or Secondary School Student

[[Page 38361]]

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Regulation No. 4]

RIN 0960-AE21

When You Are a Full-Time Elementary or Secondary School Student

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are revising our rule on full-time elementary or secondary

school students to include students enrolled in home schooling or

independent study programs authorized by State or local law, e.g.,

political subdivision, tribal government, or the District of Columbia.

The current rule covers only students in traditional institutional

educational settings; however, many States (or other jurisdictions)

provide for home schooling and independent study programs considered

equivalent to traditional schools. We also are showing clearly that

nonpayment provisions apply to certain prisoners and certain other

inmates of publicly funded institutions who otherwise would meet

student benefit requirements. In addition, we are removing outdated

rules on student benefits relating to months before August 1982.

EFFECTIVE DATE: This final rule is effective July 24, 1996.

FOR FURTHER INFORMATION CONTACT: Daniel T. Bridgewater, Legal

Assistant, Division of Regulations and Rulings, Social Security

Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410)

965-3298 for information about this rule. For information on

eligibility or claiming benefits, call our national toll-free number,

1-800-772-1213.

SUPPLEMENTARY INFORMATION

Background

The Social Security Amendments of 1965, Public Law 89-97, section

306, defined a full-time student as ``an individual who is in full-time

attendance as a student at an educational institution.'' An

``educational institution'' was defined as ``(i) a school or college or

university operated or directly supported by the United States, or by

any State or local government or political subdivision thereof, or (ii)

a school or college or university which has been approved by a State or

accredited by a State-recognized or nationally-recognized accrediting

agency or body, or (iii) a non-accredited school or college or

university whose credits are accepted, on transfer, by not less than

three institutions which are so accredited * * *.'' This definition of

an educational institution was chosen by Congress, as explained in the

Senate report, ``to establish that the institution the child attends is

a bona fide school.'' (See S. Rep. No. 404, 89th Cong., 1st Sess. 96-

97, reprinted in 1965 U.S. Code Cong. & Admin. News 1943, 2036-37.)

The Senate report also stated: ``The committee believes that a

child over age 18 who is attending school full time is dependent just

as a child under 18 or a disabled older child is dependent, and that it

is not realistic to stop such a child's benefit at age 18.'' Ibid. We

understand this to mean that the committee believed that full-time

students attending class are less likely to be able to support

themselves through employment than are part-time or correspondence

students.

The Omnibus Budget Reconciliation Act of 1981, Public Law 97-35,

section 2210, replaced the term ``educational institution'' and its

definition with the requirement that the student be in full-time

attendance at an ``elementary or secondary school,'' which 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.'' (See section 202(d)(7)(C)(i) of

the Social Security Act (the Act) as amended.) The purpose of this

amendment was to eliminate child's insurance benefits in the case of

children age 18 or older who attend postsecondary schools. Section 2210

also eliminated child's insurance benefits for children in elementary

or secondary school after they attained age 19. (See S. Rep. No. 139,

97th Cong., 1st Sess. 427, reprinted in 1981 U.S. Code Cong. & Admin.

News 396, 693.)

Present Policy

Child's insurance benefits under sections 202(d)(6) and (7) of the

Act usually terminate when the child attains age 18. However, there is

an exception that allows for continuation of entitlement to child's

benefits for persons age 18 until attainment of age 19 who are full-

time elementary or secondary school students.

Section 202(d)(7)(A) of the Act defines a full-time elementary or

secondary school student as ``an individual who is in full-time

attendance as a student at an elementary or secondary school, as

determined by the Commissioner (in accordance with regulations

prescribed by him) in the light of the standards and practices of the

schools involved * * *.''

Section 404.367 of our current regulations states, in pertinent

part:

* * * You are a full-time elementary or secondary school student

if you meet all the following conditions:

(a) You attend 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;

(b) You are in full-time attendance in a day or evening

noncorrespondence course of at least 13 weeks duration and are

carrying a subject load which is considered full-time for day

students under the institution's standards and practices.

Additionally, your scheduled attendance must be at the rate of at

least 20 hours per week unless we find that:

(1) The school attended does not schedule at least 20 hours per

week and going to that particular school is your only reasonable

alternative; or

(2) Your medical condition prevents you from having scheduled

attendance of at least 20 hours per week. To prove that your medical

condition prevents you from scheduling 20 hours per week, we may

request that you provide appropriate medical evidence or a statement

from the school.

New Policy

Current regulations do not provide guidance on alternative

education programs covered under the laws of the State (or other

jurisdiction) in which a student resides. Before the development of

such programs, our policy had been in keeping with the traditional

definition of educational institutions. Such traditional institutional-

type schools include public, private, and religious schools. Except for

the two specific exceptions noted in the regulations, we also

consistently have required that the student be scheduled to attend

school for at least 20 hours per week to be considered a full-time

student.

Because most States (or other jurisdictions) have begun providing

for education based on alternative education methods, we evaluated

cases involving home schooling or independent study programs on an

individual basis. This evaluation has provided sufficient information

to formulate these proposed regulations.

Many States or other jurisdictions have laws recognizing home

schooling. Home schooling is an educational program in which the

student is generally taught within the home by a parent/teacher. The

State or other jurisdiction specifies the requirements that must be met

and the procedures that must be followed in these situations. There

must be a parent or other home school teacher participating in the home

school instruction. This participation may be in the form of

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actual instruction, answering questions, administering tests, keeping

attendance records, etc. The student must be carrying a course load

that is considered full-time using the same standards and practices

used for full-time day students in the traditional setting, as

determined under the law of the State or other jurisdiction in which

the student resides.

The child's home schooling teacher must submit evidence that legal

requirements for home schooling are met. Depending on these

requirements, this evidence might include a copy of the certificate of

intent that is filed with the local school or school district,

documentation that State-mandated tests were taken, a list of the

courses being taught, and a copy of the attendance log or chart.

Also, some States or other jurisdictions authorize the governing

board of a school district or a county office of education to offer

independent study to meet the educational needs of pupils in accordance

with certain requirements. An independent study course could (but need

not) include instruction in the student's home or elsewhere outside the

classroom. The study program is conducted in accordance with written

policies and rules. It is coordinated, evaluated, and under the

supervision of an employee of the school district or county office of

education who has been certified to act as a home teacher. Independent

study programs which involve instruction and supervision by a teacher

employed by the school (or local school district) include written

agreements for each independent study student specifying, among other

things, the duration of the agreement and a statement of the number of

course credits to be earned by the pupil upon completion. The effect of

the written agreement is to extend the educational setting beyond the

traditional classroom. It is a situation similar to those students who

are in school-approved work-study programs that extend the educational

setting.

We therefore are revising Sec. 404.367 to include students enrolled

in home schooling or independent study programs authorized by State (or

other jurisdiction) laws. The student must be carrying a course load

considered to be full-time under the standards and practices used for

day students who are in full-time attendance at traditional educational

institutions. Students in these types of situations include a wide

range of individuals. For example, home schooling students may be in

that situation for religious reasons or because the parents do not

agree with the local school curriculum.

Students in independent study programs may include those

individuals who cannot take advantage of the traditional school

setting, such as hard-to-keep-in-school students (unable to adjust or

delinquents), single mothers, or expectant mothers. All students--those

in traditional programs and those in alternative programs--who work are

subject to the annual earnings test.

A home schooling program must meet the requirements set forth by

the State (or other jurisdiction). An independent study program

organized in accordance with the State (or other jurisdiction)

requirements must be coordinated, evaluated and supervised by an

employee of the school district or county office of education and must

comply with the policies of the school district or county office of

education. To be entitled to child's insurance benefits as a student,

an individual enrolled in either type of program must meet both the

Federal and the State (or other jurisdiction) full-time attendance

(FTA) requirements.

When determining FTA, the home schooling teacher will be the

certifying school official for FTA purposes. In independent study

situations, the school teacher/official supervising the performance of

the student under the written agreement between the school and the

student will be the certifying official for FTA.

When determining the number of hours spent in school attendance for

an approved independent study program, we will combine the number of

agreed upon hours spent in independent study with the number of hours

in actual school attendance. The course load must be equivalent to that

of a student in the school's full-time day program.

We will continue to exclude from eligibility those individuals who

are enrolled solely in correspondence courses. We do not believe that

such courses satisfy the definition of an elementary or secondary

school in the Act, and usually they would not meet State (or other

jurisdiction) requirements.

We also are revising Sec. 404.367 to clearly show that section

202(x) of the Act, regarding nonpayment of benefits to certain

prisoners and certain other inmates of publicly funded institutions,

applies to those individuals who otherwise meet student benefit

requirements. Section 202(x) is applicable to those who otherwise would

qualify for benefits under section 202(d)(7)(A) of the Act.

Further, we are removing Sec. 404.369 since it applies only to

child's benefits for full-time students for months before August 1982.

This section has not been applicable for over 10 years and there is no

longer a need to retain it. Sections that refer to Sec. 404.369 (i.e.,

Secs. 404.350-404.353) are revised to remove such references.

On December 7, 1995, we published this final rule as a proposed

rule in the Federal Register at 60 FR 62783, and on December 18, 1995,

a minor correction was published at 60 FR 65093. The proposed rule

provided for a 60-day comment period; however, there were no public

comments during this period. Therefore, we are publishing this final

rule essentially unchanged from the proposed rule.

In addition, SSA is not providing a 30-day delay in the effective

date of this final rule. The rule relieves a restriction on who may

qualify for student benefits and meets the exception under 5 U.S.C.

553(d)(1).

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget and

determined that these rules do not meet the criteria for a significant

regulatory action under Executive Order 12866.

Regulatory Flexibility Act

We certify that this final rule will not have a significant

economic impact on a substantial number of small entities since it only

affects individuals. Therefore, a regulatory flexibility analysis as

provided in Public Law 96-354, the Regulatory Flexibility Act, is not

required.

Paperwork Reduction Act

This rule imposes no additional reporting or recordkeeping

requirements subject to Office of Management and Budget clearance.

(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social

Security--Disability Insurance; 96.002 Social Security--Retirement

Insurance; 96.004 Social Security-- Survivors Insurance)

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Blind, Disability benefits,

Old-Age, Survivors, and Disability Insurance, Reporting and

recordkeeping requirements, Social Security.

Dated: July 8, 1996.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the preamble, subpart D of part 404 of

Chapter III of Title 20 of the Code of Federal Regulations is amended

as follows:

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PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950- )

Subpart D--[Amended]

1. The authority citation for subpart D of part 404 continues to

read as follows:

Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225,

228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,

403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).

2. Section 404.350 is amended by revising paragraph (a)(5) to read

as follows:

Sec. 404.350 Who is entitled to child's benefits.

(a) * * *

(5) You are under age 18; you are 18 years old or older and have a

disability that began before you became 22 years old; or you are 18

years or older and qualify for benefits as a full-time student as

described in Sec. 404.367.

* * * * *

3. Section 404.351 is amended by revising paragraph (a) to read as

follows:

Sec. 404.351 Who may be reentitled to child's benefits.

* * * * *

(a) The first month in which you qualify as a full-time student.

(See Sec. 404.367.)

* * * * *

4. Section 404.352 is amended by revising the fourth sentence of

paragraph (b)(1) to read as follows:

Sec. 404.352 When child's benefits begin and end.

* * * * *

(b) * * *

(1) * * * If you become 18 years old and you qualify as a full-time

student who is not disabled, your entitlement ends with the last month

you are a full-time student or, if earlier, the month before the month

you become age 19. * * *

* * * * *

5. Section 404.353 is amended by revising the second sentence of

paragraph (a) to read as follows:

Sec. 404.353 Child's benefit amounts.

(a) * * * The amount of your monthly benefit may change as

explained in Sec. 404.304.

* * * * *

6. Section 404.367 is amended by revising the first sentence of the

introductory text; revising paragraphs (a) and (b); redesignating

paragraphs (c), (d), and (e) as paragraphs (d), (e), and (f),

respectively; adding paragraph (c); and, revising paragraph (f) to read

as follows:

Sec. 404.367 When you are a ``full-time elementary or secondary school

student''.

You may be eligible for child's benefits if you are a full-time

elementary or secondary school student. * * *

(a) You attend a school which provides elementary or secondary

education as determined under the law of the State or other

jurisdiction in which it is located. Participation in the following

programs also meets the requirements of this paragraph:

(1) You are instructed in elementary or secondary education at home

in accordance with a home school law of the State or other jurisdiction

in which you reside; or

(2) You are in an independent study elementary or secondary

education program in accordance with the law of the State or other

jurisdiction in which you reside which is administered by the local

school or school district/jurisdiction.

(b) You are in full-time attendance in a day or evening

noncorrespondence course of at least 13 weeks duration and you are

carrying a subject load which is considered full-time for day students

under the institution's standards and practices. If you are in a home

schooling program as described in paragraph (a)(1) of this section, you

must be carrying a subject load which is considered full-time for day

students under standards and practices set by the State or other

jurisdiction in which you reside;

(c) To be considered in full-time attendance, your scheduled

attendance must be at the rate of at least 20 hours per week unless one

of the exceptions in paragraphs (c)(1) and (2) of this section applies.

If you are in an independent study program as described in paragraph

(a)(2) of this section, your number of hours spent in school attendance

are determined by combining the number of hours of attendance at a

school facility with the agreed upon number of hours spent in

independent study. You may still be considered in full-time attendance

if your scheduled rate of attendance is below 20 hours per week if we

find that:

(1) The school attended does not schedule at least 20 hours per

week and going to that particular school is your only reasonable

alternative; or

(2) Your medical condition prevents you from having scheduled

attendance of at least 20 hours per week. To prove that your medical

condition prevents you from scheduling 20 hours per week, we may

request that you provide appropriate medical evidence or a statement

from the school.

* * * * *

(f) You are not subject to the provisions in Sec. 404.468 for

nonpayment of benefits to certain prisoners and certain other inmates

of publicly funded institutions.

Sec. 404.369 [Removed]

7. Section 404.369 is removed.

[FR Doc. 96-18357 Filed 7-23-96; 8:45 am]

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