[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 In addition, we are removing outdated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