SSR 76-19: SECTION 202(d)(7) (42 U.S.C. 402(d)(7)) CHILD'S INSURANCE BENEFITS -- STUDENT -- PERIOD OF NONATTENDANCE

20 CFR 404.320

SSR 76-19

Where due to a strike by the personnel of an educational institution, a student beneficiary is unable to resume or continue full-time attendance at the institution for a period of time exceeding four consecutive calendar months, the period of time during which the beneficiary is unable to attend classes because of the strike need not be considered a "period of nonattendance" as that term is used in subparagraph (B) of section 202(d)(7) of the Social Security Act. For purposes of continuing entitlement in such situations, the inquiry is whether, pursuant to subparagraph (A) of section 202(d)(7) the beneficiary would be considered by the institution to be a "full- time student" during the strike or whether, but for the strike, the beneficiary would have been "in full-time attendance" at the institution, and whether, upon settlement of the strike and the resumption of classes, the beneficiary either intends to, or in fact does, continue to attend the institution as a full-time student.

A strike of personnel of an educational institution prevented the holding of regularly scheduled classes, and a student beneficiary, because of this strike, was unable to attend classes for a period of time which exceeded four months. With respect to those students who were entitled to student benefits prior to the strike, it is held that the period of time during which the student beneficiary is unable to attend classes because of a strike need not be considered a "period of nonattendance" as that term is used in subparagraph (B) of section 202(d)(7) of the Social Security Act. In such situations the applicable provision of the statute is subparagraph (A), rather than subparagraph (B), of section 202(d)(7).

Subparagraph (B) reads as follows:

(B) Except to the extent provided in such regulations, an individual shall be deemed to be a full-time student during any period of nonattendance at an educational institution at which he has been in full-time attendance if (i) such period is 4 calendar months or less, and (ii) he shows to the satisfaction of the Secretary that he intends to continue to be in full-time attendance at an educational institution immediately following such period. An individual who does not meet the requirements of clause (ii) with respect to such period of nonattendance shall be deemed to have met such requirement (as of the beginning of such period) if he is in full-time attendance at an educational institution immediately following such period."

This provision applies where a student beneficiary has a "period of nonattendance" which is four consecutive months or less and following which he or she resumes full-time attendance. Subparagraph (B) provides that in such situations, the student beneficiary may be deemed to have been a full-time student during the period in which he or she was not attending the institution. The legislative history of this provision indicates that its intent was to provide for the continuation of benefit payments during normal school vacation periods as well as during the school year and to provide for benefits for any period of four calendar months or less in which a person does not attend school.^[1] A "period of nonattendance" could properly be considered to be the period of time during which the student beneficiary (who was enrolled as and who had, by the standards of the institution, the status of a full-time student) personally decided or was compelled not to be active as a full-time student due to personal circumstances or because of personal conduct. Such personal circumstances could include events such as employment or illness, or could arise because the institution is not then offering courses which are of interest to the beneficiary.

Section 404.320(c)(3) of Regulations No. 4 has defined the status of "deemed full-time student during a period of nonattendance," to exclude an individual whose nonattendance is due to expulsion or suspension, notwithstanding the fact that the individual intends to or does in fact resume full-time attendance within four calendar months after the beginning of such period of nonattendance. Under both subparagraph (B), quoted above, and section 404.320(c)(3), a "period of nonattendance" may not exceed 4 consecutive calendar months. However, where a student beneficiary is prevented because of a strike of school personnel from resuming or continuing full-time attendance, the applicable provision of the statute is subparagraph (A) of section 202(d)(7). Subparagraph (A) reads as follows:

"(7) For purposes of this subsection --

"(A) A 'full-time student' is an individual who is in full-time attendance as a student at an educational institution, as determined by the Secretary (in accordance with regulations prescribed by him) in the light of the standards and practices of the institutions involved, except that no individual shall be considered a 'full-time student' if he is paid by his employer while attending an educational institution at the request, or pursuant to a requirement of his employer."

This provision defines a full-time student as a student who is "in full-time attendance." Full-time attendance is to be determined in light of the standards and practices of the institutions involved and in accordance with regulations prescribed by the Secretary. The applicable regulation, section 404.320(c)(2) of Regulations No. 4, defines full-time attendance to provide, generally, that if an individual is enrolled at an educational institution and is carrying a subject load which is considered full-time by the institution, he or she may be considered a full-time student. Thus, if there are no classes being conducted by an educational institution because of a strike, but the institution intends to resume classes when the strike is over, the inquiry should be whether the beneficiary would be considered by the institution to be registered or enrolled as a full-time student during the strike or whether, but for the strike, the beneficiary would have been in full-time attendance at the institution and whether, upon settlement of the labor dispute and the resumption of classes, the beneficiary either intends to, or actually does, continue to attend the institution as a full-time student.

^[1] See, H.R. Rep. No. 213, 89th Cong., 1st Sess. 86 (1965) and S. Rep. No. 404, 89th Cong., Sess. 97 (1965).