[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38360-38363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18357]


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[[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 In addition, we are removing outdated 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

[[Page 38362]]

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:

[[Page 38363]]

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]
BILLING CODE 4190-29-P