YouthBuild qualifies as an Educational Institution (EI) since its general educational development (GED) program is approved as an elementary or secondary level program by the State of Ohio. 

QUESTIONS PRESENTED

You asked whether the general educational development (“GED”) program of YouthBuild of Southeast Ohio (“YouthBuild”) may be considered an educational institution (“EI”) and, if so, whether S~ (“Claimant”) meets the requirements for full-time attendance (“FTA”), for purposes of paying student benefits to Claimant.

For the reasons discussed below, we conclude that YouthBuild qualifies as an EI. However, we recommend further development to determine whether Claimant meets the requirements for FTA.

BACKGROUND

Claimant seeks student benefits based on his alleged status as a full-time student at YouthBuild. YouthBuild is located in Ohio, where Claimant also resides. With his application for benefits, Claimant submitted Form SSA-1372-BK dated November XX, 2015, indicating that he was scheduled to attend YouthBuild for 31 hours per week starting on October 28, 2015, and that he expected to graduate in December 2016. A~ certified the SSA-1372-BK on November XX, 2015. However, when the undersigned contacted A~ via telephone on September 2, 2016, A~ explained that she was an employee at Unioto High School and was not associated with YouthBuild. She explained that Claimant attended Unioto High School before he was expelled on April 4, 2016.

YouthBuild of Southeast Ohio is part of YouthBuild USA, a federal program under the management of the US. Department of Labor that pairs vocational training with educational resources to low-income individuals without a high school diploma. See YouthBuild, About YouthBuild USA, https://www.youthbuild.org/about-youthbuild-usa (last visited Sept. 23, 2016). Local YouthBuild programs are sponsored and managed by local partners including nonprofit organizations, community colleges, and public agencies. See YouthBuild, Our Partners, https://www.youthbuild.org/partners (last visited Sept. 23, 2016). This particular YouthBuild affiliate is one of several programs operated by Sojourners Care Network, a non-profit youth development organization. See Sojourners, Ross and Vinton YouthBuild AmeriCorps Programs, http://www.sojournerscare.net/programs/youthbuild/ (last visited Sept. 23, 2016). The program does not receive any funding from the State of Ohio, is not accredited by the Ohio Department of Education (“ODOE”), does not face reporting requirements to the State, and does not have a charter.

As part of the GED support program, Sojourners Care Network is listed on the ODOE’s website as a GED Practice Center. See Ohio Department of Education, GED Practice Centers, http://education.ohio.gov/Topics/Testing/Ohio-Options-for-Adult-Diploma/GED/GED-Practice-Centers (last visited Oct. 26, 2016). S2~ State GED Administrator, informed the undersigned that in order to be recognized as a practice center, an institution must contact the ODEO and provide some basic information. The ODOE then informs the requesting institution whether it has been approved or not. Individuals may contact Practice Centers to schedule GED classes or practice tests.

S3~ wrote two letters to SSA while he held the Distance Learning Coordinator position with YouthBuild, the first dated November XX, 2015, and the second dated February XX, 2016. In the second letter, S3~ explained that YouthBuild is a vocational/educational program where students spend half their time in the learning classroom and the other half on the jobsite learning vocational skills. For the educational portion of YouthBuild’s program, students elect to pursue either a high school diploma or a GED diploma. In the GED track, students complete lessons on Aztec Learning Software, a GED prep course purchased by YouthBuild. S3~ indicated that Claimant was enrolled in the GED track, attended YouthBuild at least 30 hours per week, and was considered a full-time student.

J~, Director of Job Training and Readiness at Sojourners Care Network, elaborated that students work with YouthBuild for 32 hours a week in total. This amounts to 16 hours of classroom instruction per week. J~ provided the undersigned with Claimant’s monthly attendance records.

B~, a current Distance Learning Coordinator at YouthBuild, confirmed many of the scheduling details that S3~ explained. B~ added that there is no standard beginning date for a term for the GED program and the program runs the entire year, including summer. Similarly, there is no set ending date for a term. Instead, students may work in the GED program for however long it takes to pass the four sections of the GED exam.

DISCUSSION

The Social Security Act (Act) provides for the payment of child’s insurance benefits (“CIB”) to certain children of individuals who are entitled to old-age or disability insurance benefits or who died as fully or currently insured individuals. See Section 202(d)(1) of Act. As relevant here, to qualify for CIB as a student, a claimant must be at least 18 years old but under age 19 and a full-time elementary or secondary school student. See Section 202(d)(1)(B) of the Act; 20 C.F.R. § 404.350(1)(5). If the claimant is not under a disability, benefits terminate when he turns 19 years old, regardless of his educational status. See Section 202(d)(1)(F)(ii) of the Act.

The Act defines “full-time elementary or secondary school student” as an individual who is in full-time attendance at an elementary or secondary school, as determined by the Commissioner of Social Security by regulation. See Section 202(d)(7)(a) of the Act; see also 20 C.F.R. §404.367. With respect to GED programs, agency policy states that an individual can be considered a student if: 1) the school providing the GED program is an EI, and 2) the student is in FTA. See POMS RS 00205.340A.

YouthBuild Qualifies as an EI

A school providing a GED program may be considered an EI if, under the law of the State in which it is located, the GED program is determined to be an approved elementary or secondary level program. See POMS RS 00205.340B. YouthBuild is based in Ohio. Therefore, YouthBuild qualifies as an EI if its GED program is approved as an elementary or secondary level program by the State of Ohio.

As noted above, YouthBuild is not accredited by the State of Ohio. However, YouthBuild, under Sojourners Care Network, is approved by the ODOE as a GED Practice Center to conduct GED classes and administer practice exams for individuals preparing for the GED exam. We note that under Ohio law, a person who passes the GED exam earns an Ohio High School Equivalence Diploma issued by the ODOE; this diploma indicates that the holder has achieved the equivalent of a high school education. See Ohio Rev. Code § 3301.80(A); Ohio Admin. Code § 3301-41-01(B). Thus, we believe that YouthBuild qualifies as an EI because its GED program is a secondary level program approved by the ODOE.

Further Development is Needed to Determine Whether Claimant is in FTA

To satisfy the FTA requirement, a student must be scheduled for at least 20 hours per week and attend for 13 consecutive weeks. See POMS RS 00205.340C. For the hourly scheduled attendance requirement, a student is in FTA if his “actual attendance is at the rate of at least 20 hours weekly (or the school’s standards, if higher).” See POMS RS 00205.340C.1. An exception is allowed where the school’s standards do not require at least 20 hours of weekly scheduled attendance for the student to be considered full-time, and attending that school is the student’s only reasonable alternative. See 20 C.F.R. § 404.367(c)(1); POMS RS 00205.310A, RS 00205.350D.1.b.

Here, it does not appear that Claimant attended YouthBuild’s GED program at least 20 hours per week. Claimant’s monthly log of educational hours at YouthBuild shows that he never attended class for more than 56.25 hours in a month since his enrollment in October 2015. 56.25 hours in a month averages to about 14 hours per week, assuming four weeks per month. Thus, even Claimant’s month of highest attendance falls far short of the 20 hour per week minimum requirement.

However, in this case we believe further development is warranted to determine whether Claimant may meet the exception to the hourly scheduled attendance requirement. S3~ indicated that Claimant was considered a full-time student at YouthBuild. And J~ explained that at full-time enrollment under YouthBuild’s standards, a student would receive classroom instruction for 16 hours per week. Thus, YouthBuild does not schedule at least 20 hours per week. Accordingly, we recommend contacting a school official to ascertain whether attending YouthBuild’s GED program is Claimant’s only reasonable alternative, and to obtain a written statement as appropriate. See POMS RS 00205.310H, RS 00205.350D.1.b.

With respect to the 13-week duration requirement, B~ indicated that YouthBuild’s GED program has an indefinite length. The POMS instructs that, for GED programs that have an indefinite length, the “actual length of time the student is in FTA determines whether the 13-week duration requirement is met.” See POMS RS 00205.340C.2, RS 00205.350E. We believe a finding that Claimant actually attended YouthBuild’s GED program for at least 13 consecutive weeks is supported by the evidence, including Claimant’s statements on Form SSA-1372-BK, his monthly attendance records, and information provided by S3~.

If, after further development, it is determined that Claimant is in FTA, we note that a new form SSA-1372-BK with certification by a proper school official should be completed.

CONCLUSION

For the reasons discussed above, we conclude that YouthBuild can be considered an EI, but that further development is needed to determine whether Claimant is in FTA.

Kathryn Caldwell

Regional Chief Counsel

Region V, Chicago

By: Michael A. Gregory

Assistant Regional Counsel

The Ashworth University High School, an online institution based in N~, Georgia, is not an educational institution (EI) under Ohio law and is, therefore, not an EI for SSA purposes.

You asked whether an internet high school based in Georgia can be considered an educational institution for an 18-year-old Ohio recipient of survivors benefits. Because the internet high school is based in Georgia, we referred the matter to our OGC office in Region IV, Atlanta, to consider whether the high school could be considered an educational institution under Georgia law. In addition, because the benefit recipient lives in Ohio, we considered whether the school could be considered an educational institution under Ohio law. We conclude that the internet high school is not an educational institution under the laws of either Georgia or Ohio.

BACKGROUND

The number holder, Timothy , had been entitled to disability benefits from November 1995 until he died in December 1999. His daughter, Jonda , born June XX, 1989, received auxiliary benefits until December 1999, when she was converted to survivors benefits. She was terminated when she turned 18 in June 2007.

In July 2007, Ms. completed an SSA 1372 stating that she had been attending Ashworth University High School since May 2007 (as confirmed by Ashworth), and that her school year ended in June 2008. She stated that she was scheduled to attend Ashworth over 20 hours a week. An Ashworth school official certified to you that Ms. was in "full-time" attendance. Ms. 's transcript showed that, by December 2007, she had completed four credits, and that she had to earn three more credits to complete her high school degree. An attendance record that Ms. kept showed that, in seven months, she had attended Ashworth 421.5 hours, averaging 19.3 hours a week.

Ashworth states on its website, http://www.ashworthuniversity.edu, that it is an online institution based in N~, Georgia. It offers a 16-credit general diploma and 22-credit college prepatory diploma. The materials for both diplomas are available online and by correspondence. Ashworth employs a "self-paced, web-based curriculum." A certified teacher is available to provide guidance via email or instant messaging (IM). Ashworth is accredited by the Southern Association of Colleges and Schools, the Distance Education and Training Council, and the Commission on International and Trans-Regional Accreditation.

Ashworth explicitly recognizes on its website that the Social Security Administration requires at least 20 hours of attendance a week. It states that "since Ashworth students work at their own pace, we cannot verify that students work 20 or more hours per week."

In a telephone interview conducted by OGC Region IV on August 14, 2008, with Ms. Renee M~, a registrar for Ashworth, Ms. M~ explained that Ashworth is privately owned and not affiliated with the state of Georgia. Ms. M~ elaborated that Ashworth does not have any reporting requirements to the state of Georgia, the state's department of education, or any local superintendent of schools. She also said Ashworth does not monitor or report student attendance (that is, the time a student spends on-line engaged in course work).

DISCUSSION

1. Introduction

The Social Security Act provides for the payment of survivors benefits to certain unmarried children of individuals who die fully or currently insured. 42 U.S.C. § 402(d). A child age 18 can continue to receive benefits if the child is unmarried and is a full-time elementary or secondary school student. 42 U.S.C. § 402(d)(1)(B)(i); see also 20 C.F.R. § 404.350(a)(4)-(5); POMS RS 00205.001A. For purposes of entitlement to child's benefits under this section, a child must be in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner. 42 U.S.C. § 402(d)(7)(A); see also 20 C.F.R. § 404.367; POMS RS 00205.300. The Act further provides that an "elementary or secondary school" is "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." 42 U.S.C. § 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a); POMS RS 00205.200A.

2. Ashworth University High School is not an educational institution under Georgia law.

Because Ashworth University High School is based in Georgia, we asked Region IV to assess whether Ashworth is an educational institution under Georgia law. For the following reasons, Region IV advised us that Ashworth is not an educational institution under Georgia law.

Georgia recognizes three types of educational entities: public schools, private schools, and home study programs. Ga. Code Ann. § 20-2-690(a). Ashworth is not a Georgia public school under Georgia law; as Ms. M~, the Ashworth registrar, confirmed, Ashworth is privately owned and is not affiliated with the state of Georgia. To qualify as a "private school," an institution must (1) have providing education as its primary purpose, (2) be privately controlled and operate on a continuing basis, (3) provide instruction each 12 months for the equivalent of 180 school days of education with each school day consisting of at least four and one-half school hours, (4) provide a basic academic educational program that includes reading, language arts, mathematics, social studies, and science, (5) provide to the school superintendent of each local public school district which has residents enrolled in the private school with a list of the name, age, and residence of each resident so enrolled and provide monthly updates of students who enroll or terminate enrollment in the private school, and (6) meet local health and safety standards. Ga. Code Ann. § 20-2-690(b).

According to the information furnished, Ashworth does not qualify as a private school under Georgia law. Although Ashworth's on-line degree program provides a basic academic educational program that includes reading, language arts, mathematics, social studies, and science, and Ashworth is privately owned and operated on a continuous basis, Ashworth does not meet the reporting or attendance criteria of Ga. Code Ann. § 20-2-690(b). In an interview conducted on August 14, 2008, Ms. M~, a registrar for Ashworth, confirmed that Ashworth is not affiliated with the state of Georgia and does not report student enrollment to the superintendents of the local public school districts, nor to any other state official or department. Ms. M~ also explained that although Ashworth, being an on-line program, is in continuous operation, Ashworth does not confirm to the state the actual time of attendance of any individual student, and does not confirm a student attends the equivalent of 180 school days of education with each school day consisting of at least four and one-half school hours. Rather, the Ashworth Student Handbook provides the approximate time it should reasonably take to complete a course in the "self-paced" curriculum. Students are invited to enroll and start at any time; study on their own schedule; and graduate quickly. Because the on-line diploma program does not meet the state's reporting or attendance requirements, Ashworth does not qualify under Georgia law as a "private school."

Georgia also recognizes a home study or home school program as an educational entity. Ga. Code Ann. § 20-2-690(c). Parents and guardians may teach their children in a home study program that meets certain requirements. Because Ashworth is not a parent or guardian of the students enrolled in its program, however, it fails as a threshold matter to qualify as a home study program under Georgia law. See Ga. Code Ann.§ 20-2-690(c)(3) ("Parents or guardians may teach only their own children in the home study program . . . ."). Furthermore, Ashworth does not qualify as a home study program under Georgia law because it does not meet the reporting or attendance requirements of the statute. See Ga. Code Ann. §§ 20-2-690(c) (1), (2), (5), (6). These sections require a written declaration listing the names and ages of each home-schooled student be filed with the local superintendent of schools; certification that instruction is provided an equivalent of 180 days per year with each day being at least four and one-half hours; and the monthly submission of attendance records to the local superintendent of schools. Id. As discussed above, Ashworth does not meet these requirements, and thus would not be considered a home study program under Georgia law.

3. Ashworth University High School is not an educational institution under Ohio law.

Since Ashworth does not qualify as an educational institution under Georgia law, and since Ashworth's website suggests that the program may be used to supplement home schooling, we also considered whether Ashworth could be considered a home school, or might otherwise be recognized as an educational institution in Ohio, where Ms. resides. We have found no basis, however, for recognizing the school as an educational institution under Ohio law.

Under Ohio law, any child of compulsory school age must attend a school that conforms with the minimum standards of the state board of education. Ohio Rev. Code Ann. § 3321.04. A child may be exempted from public school attendance by the child's local school district superintendent if the child is being instructed at home by a qualified instructor. Id. In such cases, the superintendent must have on file in his or her office a copy of papers showing how the instructor's qualifications were determined. Id.

The Ohio Administrative Code further defines "home education" as education "primarily directed and provided by the parent or guardian of a child." Ohio Admin. Code § 3301-34-01(B). The Ohio Code also requires that, for home schooling, a parent must provide the local superintendent certain information, including an assurance that the child will be provided a minimum of 900 hours of home education each school year. Ohio Admin. Code § 3301-34-03(A)(8).

Ohio state laws also provide for the establishment of community-based charter schools. Ohio Rev. Code Ann. § 3314. These schools also have a compulsory attendance requirement, of 920 hours a year, Ohio Rev. Code Ann. § 3314.03(A)(11)(a), as well as other requirements.

Finally, Ohio law requires that any child who does not attend a public school must receive instruction which conforms to the state's minimum standards, including the hours and terms of attendance. Ohio Rev. Code Ann. § 3321.07.

The terms of Ms. 's enrollment at Ashworth do not satisfy the Ohio definition of a home school. Because its classes are unmonitored and self-paced, Ashworth is unable to certify the number of hours of instruction that it provides its students. It explicitly acknowledges this fact in its written materials, and Ms. M~ confirmed this in her August 14, 2008 interview. Accordingly, Ashworth does not satisfy Ohio's minimum compulsory education time requirement for home schooling, and thus cannot be considered an educational institution under Ohio law.

Even if it were possible that under certain circumstances Ms. 's time log might be able to be used to satisfy Ohio's minimum compulsory education time requirement for home schooling, Ms. 's time logs would also not satisfy Ohio's 900-hour requirement. If Ms. 's time log represents time that she was attending class, and not doing homework (which generally would not count towards the school attendance requirement), her time log shows that in seven months she had attended Ashworth 421.5 hours. This is well under the 900-hour school attendance minimum required in Ohio.

Ms. 's Ashworth program also does not satisfy Ohio's home school requirements because it was not approved by a school superintendent. We also note that the Ohio Administrative Code provides that home schooling shall be primarily directed and provided by a parent, which does not appear to be the case here. Therefore, for all of these reasons, Ashworth cannot be considered an educational institution as a home school in Ohio.

We note that the Ohio Supreme Court has recently found that, in certain circumstances, an out-of-state distance-learning home-schooling program can satisfy the requirement that the student attend "any recognized and accredited" high school, even though the out-of-state distance-learning home-schooling program was not approved by the state of Ohio. In Davis v. Davis, the Ohio Supreme Court considered whether the American School, which it termed a "private, distance-learning" high school, was a "recognized and accredited" high school for the purposes of qualifying for ongoing child support payments after reaching age 18 under Ohio Rev. Code Ann. § 3103.03(B). Davis v. Davis, 873 N.E. 2d 1305 (2007). The court observed that the American School was accredited by the North Central Association of Colleges and Schools, the Distance Education and Training Council, and the Commission on International and Trans-Regional Accreditation. Id. at 1307. These are essentially the same three bodies which accredited Ashworth. The American School was also recognized, however, by the Illinois Board of Education. Id. The court concluded that because the American School was recognized by the state of Illinois, and accredited by three other educational agencies, it was a "recognized and accredited" high school for the purposes of Ohio Rev. Code Ann. § 3103.03(B).

Significantly, the Ohio Supreme Court noted in Davis that, by modifying the phrase "recognized and accredited" with the expansive adjective "any," the Ohio legislature "acknowledged the mobility of individuals in our society, the educational choices available to them, and the possibility that children may move to or otherwise attend high schools that are recognized and accredited in different jurisdictions." Davis, 873 N.E. 2d at 1309-10 (emphasis added). While the question at hand involves different statutory language, we find it significant that Ohio has recognized the possibility that a distance-learning home-schooling high school may, under certain circumstances, constitute an acceptable high school program. But we also note that it may be of significance that the American School was also recognized by a state board of education, whereas Ashworth is not.

We similarly recognize our past opinions finding internet-based home-schooling programs within the state of Ohio to qualify as educational institutions. Whether the Ohio Distance and Electronic Learning Academy Qualifies as an Ohio Educational Institution (July 12, 2005) (B~); Whether the Virtual Schoolhouse Qualifies as an Ohio Educational Institution (May 3, 2005) (B~); Does the Electronic Classroom of Tomorrow (ECOT) Qualify as an Educational Institution Under Ohio Law? (Mar. 7, 2002) (L~). But those schools, unlike Ashworth, were established under Ohio state laws providing for the establishment of community-based charter schools which explicitly contemplate the inclusion of internet-based learning. Ohio Rev. Code Ann. §§ 3314.02(A)(7), 3314.03(A)(11)(h), 3314.21, 3314.24, 3314.27. Further, state policies require those schools to follow mandatory attendance standards, conduct regular face-to-face teacher-student meetings, hire state-certified teachers, and comply with state-mandated education testing. Ohio Distance and Electronic Learning Academy at p.6 n.7. Those programs thus differ significantly from Ashworth. (We note that since our we wrote our last opinion, the Ohio Supreme Court has upheld the constitutionality of the Community Schools Act. State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Educ., 857 N.E. 2d 1148 (2006).)

We also entertained the possibility that Ashworth might qualify as an educational institution in Ohio under Ohio Rev. Code Ann. § 3321.07, which excuses a student from Ohio's compulsory school attendance law if he or she is receiving instruction which conforms to the state's minimum standards, including the hours and terms of attendance. But because Ashworth is unable to certify Ms. 's hours and terms of attendance, it is unable to qualify under this section. If Ashworth were certified by another state, such as Georgia, then it would be more likely that Ohio would recognize it as an educational institution, just as the Ohio Supreme Court recognized the American School in Davis. Lacking such certification, however, there is no evidence that Ashworth has been recognized to meet any state's minimum standards. For these reasons, Ashworth also does not qualify as an educational institution under Ohio Rev. Code Ann. § 3321.07.

CONCLUSION

In sum, we conclude that Ashworth University High School cannot be considered an educational institution under the laws of Georgia or Ohio.

Sincerely

Donna L. C~

Regional Chief Counse

By: Charles R. G~

Assistant Regional Counsel

The Ohio Distance and Electronic Learning Academy (OHDELA) is a statewide, Internet-based public school district chartered under the community school laws in Ohio. Under Ohio Revised Code, community charter schools are public schools. Since OHDELA satisfies the requirements of a community school under Ohio law and is, therefore, considered a public school, OHDELA is an educational institution under Ohio law and for SSA purposes.

You asked whether the Ohio Distance and Electronic Learning Academy (OHDELA), an internet-based electronic school, could qualify as an educational institution under Ohio law. You indicated that this information is necessary to determine whether Jennifer P~, an Ohio secondary school student at the OHDELA, qualifies for child insurance benefits (CIB) on the account of Lawrence P~. We conclude that OHDELA is an educational institution under Ohio law, and that it is not a correspondence school.

BACKGROUND

Jennifer was entitled to CIB on the account of Lawrence P~. Jennifer turned eighteen on November 30, 2003.

The OHDELA is a statewide, internet-based public school district chartered under the community school laws of Ohio (see www.ohdela.com at About; www.ode.state.oh.us/community_schools/directory_of_schools ) . According to the OHDELA website ( www.ohdela.com ) and the OHDELA Annual Progress Report for Academic Year 2003-2004 ("Ann. Rpt."), OHDELA enrolled 3500 students from 79 of Ohio's 88 counties in the 2004-05 academic year (www.ohdela.com at Press Fact Sheet). OHDELA offers a teacher-supported curriculum for elementary and secondary students from grades K-12 (Ann. Rpt. at 1). OHDELA provides each student with a computer, software, and other telephonic and technological equipment (Ann. Rpt. at 8; www.ohdela.com at FAQs, Enrolling). The secondary school curriculum includes all the courses required to earn an accredited diploma from the State of Ohio (www.ohdela.com at Our Program/Curriculum). Courses combine an electronic curriculum available on a computer network maintained by the OHDELA, an online library and video library, traditional text-based materials, and workbooks (www.ohdela.com at Our Program/Curriculum). Classes are delivered live with interactive software; the students listen to the instructor, and respond via chat rooms and email (Ann. Rpt. at 5).

A teacher, certified as required by Ohio law, is assigned to each student in grades 9-12 (www.ohdela.com at FAQs). In addition to class work, the Master Teacher provides help with testing and the required Ohio Proficiency Tests (www.ohdela.com at FAQs). Secondary teachers and academic advisors contact parents and students every two weeks to review student progress (www.ohdela.com at FAQs). In addition, students and parents may contact their teachers by e-mail, telephone, regular mail, or video conference, or make an appointment to meet the teacher in person (Ann. Rpt. at 3, OHDELA.com at FAQs). Funds are made available for parents to supplement the curriculum-based learning opportunities with additional educational materials, or student attendance at outside events (OHDELA.com at Enrolling, FAQs). OHDELA students participate in two grade-specific field trips each year, and eight parent groups throughout Ohio work to provide additional educational and social opportunities for OHDELA students (Ann. Rpt. at 4). OHDELA participates in all State-mandated proficiency testing; required testing is administered in person at regional sites (OHDELA.com at Press Fact Sheet, FAQs).

Students have access to their virtual classrooms at all times, and have access to their Master Teacher 246 days per year (Ann. Rpt. at 10). There is also a Live Homework Help program under which students have online access to a professional tutor from 2 p.m. to midnight, seven days a week (Ann. Rpt. at 5). However, students are required to log-in to their computers a minimum of 24 hours per week, and must log a minimum of 920 hours of curriculum and learning time each year (Ann. Rpt. at 10, www.ohdela.com at FAQs). OHDELA monitors student progress through lesson, unit, and semester assessments; each curriculum provides for grading student tests and submitted work (OHDELA.com at FAQs). Parents can track their child's progress against Ohio learning standards (OHDELA.com at Press Fact Sheet).

Jennifer P~'s academic advisor has verified that she is enrolled at OHDELA, is required to log a minimum of 25 hours per week for school attendance, is required to take Ohio proficiency tests, and that her work is monitored by a licensed teacher (OHDELA Letter from Tamere M~, undated).

Discussion

The Social Security Act ("the 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). A child over the age of 18 can continue to receive benefits if the child is a full-time elementary or secondary school student. 42 U.S.C. §§ 402(d)(1), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5). Section 202(d)(7)(C)(i) of the Act states that an "elementary or secondary school" is "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 also 20 C.F.R.§ 404.367(a).

The OHDELA is an Educational Institution.

The Program Operations Manual System (POMS) provides that an educational institution is a school that provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which it is located. See POMS RS 00205.200. Unless there is some indication to the contrary, the following schools in the United States are considered to be educational institutions: elementary schools, middle schools, junior high schools, and high schools. See POMS RS 00205.250(B)(1). The POMS also sets forth the procedure for determining the status of a school as an educational institution. Id. An institution is a school if it: (1) maintains a program that is directed towards a specific educational objective, such as a diploma; (2) hires either professional teachers who hold State teaching certificates or individuals hired primarily to teach; and (3) uses formal teaching materials, such as texts, and facilities, such as classrooms and/or laboratories. See PR 02-050, Darla E. C__, Does the Electronic Classroom of Tomorrow (ECOT) Qualify as an Educational Institution Under Ohio State Law? (Your Ref. S2D5G3, Our Ref. 0P086, March 7, 2002). Therefore, pursuant to the statute, regulations, and POMS, it is necessary to examine Ohio law to determine whether OHDELA is an educational institution.

OHDELA satisfies the requirements of a community school under Ohio law, and, therefore, it is considered a public school, satisfying the requirements of an educational institution. Under the Ohio Revised Code, community charter schools are public schools, independent of any school district, and are part of Ohio's program of education. Ohio Rev. Code § 3314.01(B). The schools operate under performance-based contracts with a sponsoring agency, such as a local school board or the Ohio Department of Education. Ohio Rev. Code §§ 3314.02(A)(1), 3314.03. OHDELA's sponsor is the Ohio Council of Community Schools (Ann. Rpt. at 9). Charter schools are exempt from State laws and rules except as outlined in the Ohio Revised Code section 3314 et seq. See Ohio Rev. Code § 3314.04. Ohio law expressly permits the establishment of internet-based community schools. Ohio Rev. Code § 3314.02(A)(7). According to the web site of Ohio's Office of Community Schools, at the end of 2004 Ohio had 48 such internet-based community schools, or eCommunity schools, serving a total of 13,500 students. See http://www.ode.state.oh.us/community_schools/ . The Office of Community Schools also lists OHDELA as one of seven state-wide eCommunity Schools as of March 1, 2005. See http://www.ode.state.oh.us/community_schools/directory_of_schools/schools_o.asp . In order to provide technical assistance and monitoring, the sponsor of an eCommunity school must be located within 50 miles of the school's base of operations. Ohio Rev. Code § 3314.023; Ohio Admin. Code §§ 3301-102-03(E)(2), 3301-102-04(A)(7)(a). Chartered eCommunity schools are required to provide their students with computers. Ohio Rev. Code § 3314.032(A)(1).

According to section 3314.03, community schools, including eCommunity schools, must provide learning opportunities to a minimum of twenty-five students for a minimum of nine hundred twenty hours per school year. Ohio Rev. Code § 3314.03(A)(11)(a). The schools may limit admission to certain groups of students, such as students who are academically at risk. Ohio Rev. Code § 3314.06. The school must also adopt an attendance policy whereby any student who fails to participate in 105 consecutive hours of the learning opportunities offered to the student is automatically withdrawn from the school. Ohio Rev. Code § 3314.03(A)(6)(b). According to OHDELA, online instruction is available at all times, and students are required to meet the State-mandated minimum of 920 hours per year (Ann. Rpt. at 10, OHDELA.com at FAQs). This satisfies the requirement for hours of instruction. OHDELA's enrollment of 3500 students for the 2004-05 academic years (www.ohdela.com at Press Fact Sheet) also satisfies the statute.

Teachers in community schools must be licensed in accordance with Ohio laws, except that non-certified teachers may teach up to twelve hours per week. Ohio Rev. Code § 3314.03(A)(10). In addition, teachers employed by eCommunity schools must conduct visits with their students in person throughout the academic year; the contract with the school's sponsor must specify the number of such visits and how they will be conducted. Ohio Rev. Code § 3314.031(B), (C)(2). According to the OHDELA's Annual Report and web site, its teachers are licensed in accordance with Ohio Revised Code §§ 3319.22-3319.30; see also Ohio Rev. Code § 3314.03(A)(10). The material from OHDELA does not specify the manner or frequency of student/teacher visits, although the Annual Report asserts that OHDELA is in compliance with its contract with its sponsor (Ann. Rpt. at 9). Students of community schools must submit to statewide proficiency tests and comply with compulsory attendance policies. Ohio Rev. Code § 3314.03(A)(3), (A)(11)(d), citing § 3321.01. OHDELA follows enrollment procedures as defined by Ohio Revised Code § 3314.06 and requires its students to submit to performance indicators as outlined in Ohio Revised Code 3314.03(A)(1)(g) (see OHDELA.com at Press Fact Sheet, FAQs). Accordingly, OHDELA satisfies the requirements of a community school under Ohio law and, therefore, it is considered a public school, satisfying the requirements of an educational institution. See also PR 02-050, Darla E. C__, Does the Electronic Classroom of Tomorrow (ECOT) Qualify as an Educational Institution Under Ohio State Law? (Your Ref. S2D5G3, Our Ref. 0P086, March 7, 2002); LeCarlton P___, Whether the Virtual Schoolhouse Qualifies as an Ohio Educational Institution (Your Ref S2D5G6, Our Ref 05-0086, May 3, 2005).

Jennifer's Full-Time Attendance.

In order to be entitled to student benefits, a student must be a "full-time elementary or secondary school student." 20 C.F.R. §§ 404.367-368. The regulations require that a student: (1) must be in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; (2) must carry a subject load considered full-time for day students under the institution's standards and practices; and (3) generally must attend school at least twenty hours a week. 20 C.F.R. § 404.367(b)-(c). Thus, to determine whether Jennifer is entitled to CIB, it is necessary to establish whether the OHDELA should be considered a correspondence school.

As this Office noted in two previous legal opinions, see POMS PR 07905.039(A); LeCarlton P__, Whether the Virtual Schoolhouse Qualifies as an Ohio Educational Institution (Your Ref. S2D5G6, Our Ref: 05-0086, May 3, 2005), Ohio eCommunity schools like OHDELA share some characteristics of a correspondence school, but do not fit squarely into the definition of a correspondence school. For example, a correspondence school teaches by mailing lessons and exercises to the student, who returns the exercises to the school for grading. POMS RS 00205.330(A). As a student at OHDELA, Jennifer downloads assignments, completes them, and submits them to her instructors on a regular basis (Ann. Rpt. at 5; www.ohdela.com at FAQs). In this way, OHDELA is similar to a correspondence school.

However, OHDELA differs from a correspondence school in other ways, because it offers virtual classrooms that allow Jennifer to interact with other students and teachers. Unlike a correspondence school, learning at OHDELA takes place both offline and online under the guidance of State-certified teachers, to whom students have access throughout the semester via telephone, e-mail, and computer chat-rooms (Ann. Rpt. at 3, 5; www.ohdela.com at FAQs, Our Program/Curriculum). Moreover, an OHDELA student is required to meet monthly attendance benchmarks designed to satisfy State attendance requirements, engage in an interactive online curriculum, and take all State-mandated proficiency tests (Ann. Rpt. at 5, 10; www.ohdela.com at About, FAQs). Given these characteristics, we conclude that OHDELA should not be considered a correspondence school as defined by POMS RS 00205.330.

OHDELA also shares many characteristics of an independent study program, although it does not fully meet the definition of independent study provided in the POMS. Under POMS RS 00205.285, independent study programs are run by local education agencies in accordance with State law requirements, and the credits earned count toward high school graduation. Consistent with the requirements of an independent study program, the credits Jennifer earns count toward high school graduation (OHDELA.com at Our Program/Curriculum). However, OHDELA is not run by a local education agency. Although eCommunity schools must, under Ohio law, have a sponsoring agency, that agency need not be a local school board; OHDELA's sponsor is the Ohio Council of Community Schools (Ann. Rpt. at 9). Like an independent study program, OHDELA promises its students an individualized curriculum, with a written syllabus (Ann. Rpt. at 3, 5; www.ohdela.com at FAQs, Our Program/Curriculum). See RS 00205.285(C)(2). Independent study programs, however, also involve periodic teacher contact, direction, and testing on campus. OHDELA does not have a campus; State proficiency tests are administered in person at a variety of regional sites (OHDELA.com at FAQs). OHDELA appears to differ from an independent study program by providing more student-to-student and student-to-teacher contact through its virtual classrooms and computer chat-rooms. Given these characteristics, we conclude that while the OHDELA does not meet the definition of an independent study program, it is closer to an independent study program than to a correspondence school.

Finally, according to the materials we were provided, OHDELA has verified that Jennifer participated in online instruction for 25 hours per week. This satisfies the regulatory requirement for full-time attendance. See 20 C.F.R. § 404.367. Thus, Jennifer was a full-time student when she turned eighteen, and under 42 U.S.C. § 402(d)(1), she can continue to receive benefits until she turns nineteen, provided that she maintains her full-time attendance status.

Conclusion

We conclude that OHDELA is an educational institution under Ohio law. Although OHDELA does not squarely fit the definition of a correspondence school, an independent study program, or a home school program, it comes closest to the definition of an independent study program. We also conclude that Jennifer is a full-time student of the OHDELA.

Julie L. B~

Regional Chief Counsel, Region V

The Virtual Schoolhouse of Ohio (VS) is a statewide, internet-based public school district chartered under the community school laws in Ohio. The VS differs from a correspondence course because it offers virtual classrooms that permit a student to interact with teachers and other students. Students have telephone and e-mail access to state-certified teachers. Under Ohio code, community schools are public schools. Since VS satisfies the requirements of a community school under Ohio law and is, therefore, considered a public school, VS is an educational institution under Ohio law and for SSA purposes.

You asked whether the Virtual Schoolhouse of Ohio, an internet-based electronic school, could qualify as an educational institution under Ohio law. You indicated that this information is necessary to determine whether LeCarlton P~, an Ohio secondary school student at the Virtual Schoolhouse, qualifies for child insurance benefits (CIB) on the account of Carlton P~. We conclude that the Virtual Schoolhouse is an educational institution under Ohio law, and that it is not a correspondence school.

BACKGROUND

LeCarlton was entitled to CIB on the account of Carlton P~. LeCarlton turned eighteen on December XX, 2004.

The Virtual Schoolhouse is a statewide, internet-based public school district chartered under the community school laws in Ohio. According to the Virtual Schoolhouse Student Handbook ("VS Handbook"), the Virtual Schoolhouse offers a teacher-supported curriculum for elementary and secondary students ranging in age from 5 to 21 (VS Handbook at 5). Enrollment preference is given to students who are academically at risk. (VS Handbook at 5). The Virtual Schoolhouse provides each student with a computer, software, and other telephonic and technological equipment (VS Handbook at 7). All course content and assignments are made in accordance with Ohio academic standards, and courses are "designed so that they require interaction of students with authentic, challenging and multidisciplinary tasks" (VS Handbook at 4). Courses use a combination of traditional text-based materials in addition to a computer network maintained by the Virtual Schoolhouse, internet sites, and multimedia or video clips (VS Handbook at 4, 10).

Students in kindergarten through sixth grade are assigned a primary teacher. Students in grades 7-12 have an assigned teacher for each class in which they enroll, and a coordinator who is responsible for monitoring attendance and student progress (VS Handbook at 7). Teachers are certified as required by Ohio law (VS Handbook at 3). Students may contact their teachers by e-mail or by telephone (VS Handbook at 3). Work activities are designed so that in addition to their individual curriculum, students engage in activities that require them to interact with other students and participate in team-based activities (VS Handbook at 4). The Virtual Schoolhouse participates in all State-mandated proficiency testing (VS Handbook at 19).

Students have access to their virtual classrooms at all times (VS Handbook at 7). However, students are required to log-in to their computers at specified times, and must submit an accounting of their activities to the teacher on a regular basis (VS Handbook at 3). They are also required to submit assignments to their teachers at specified times (VS Handbook at 3). Parents must provide the teacher of record with work samples completed by the student each week, and teachers must be in direct contact with parents at least monthly (VS Handbook at 4). Students maintain up-to-date electronic logs by logging their hours on the computer and accounting for each calendar day (VS Handbook at 11). Students must also meet established monthly benchmarks for hours of attendance, which are designed to ensure that students meet the State-mandated 920 hours of learning opportunities in each school year (VS Handbook at 11). Students also engage in frequent face-to-face meetings with tutors (VS Handbook at 11).

According to the information provided by LeCarlton P~, he spends 20-25 hours each week attending school online. The 2004-2005 academic year runs from August to June. The school has verified that LeCarlton is a full-time student.

Discussion

The Social Security Act ("the 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). A child over the age of 18 can continue to receive benefits if the child is a full-time elementary or secondary school student. 42 U.S.C. §§ 402(d)(1), 402(d)(7)(A); 20 C.F.R. § 404.350(a)(5). Section 202(d)(7)(C)(i) of the Act states that an "elementary or secondary school" is "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 also 20 C.F.R.§ 404.367(a)(1).

The Virtual Schoolhouse is an Educational Institution.

The Program Operations Manual System (POMS) provides that an educational institution is a school that provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which it is located. See POMS RS 00205.200. Unless there is some indication to the contrary, the following schools in the United States are considered to be educational institutions: elementary schools, middle schools, junior high schools, and high schools. See POMS RS 00205.250(B)(1). The POMS also sets forth the procedure for determining the status of a school as an educational institution. Id. An institution is a school if it: (1) maintains a program that is directed towards a specific educational objective, such as a diploma; (2) hires either professional teachers who hold State teaching certificates or individuals hired primarily to teach; and (3) uses formal teaching materials, such as texts, and facilities, such as classrooms and/or laboratories. See PR 02-050, Darla E. C__, Does the Electronic Classroom of Tomorrow (ECOT) Qualify as an Educational Institution Under Ohio State Law? (Your Ref. S2D5G3, Our Ref. 0P086, March 7, 2002). Therefore, pursuant to the statute, regulations, and POMS, it is necessary to examine Ohio law to determine whether the Virtual Schoolhouse is an educational institution.

The Virtual Schoolhouse satisfies the requirements of a community school under Ohio law, and, therefore, it is considered a public school, satisfying the requirements of an educational institution. Under the Ohio Revised Code, community charter schools are public schools, independent of any school district, and are part of Ohio's program of education. Ohio Rev. Code § 3314.01(B). The schools operate under performance-based contracts with a sponsoring agency, such as a local school board or the Ohio Department of Education. Ohio Rev. Code §§ 3314.02(A)(1), 3314.03. Charter schools are exempt from State laws and rules except as outlined in the Ohio Revised Code section 3314 et seq. See Ohio Rev. Code § 3314.04. Ohio law expressly permits the establishment of internet-based community schools. Ohio Rev. Code § 3314.02(A)(7). According to the web site of Ohio's Office of Community Schools, at the end of 2004 Ohio had 48 such internet-based community schools, or eCommunity schools, serving a total of 13,500 students. See http://www.ode.state.oh.us/community_schools/. In order to provide technical assistance and monitoring, the sponsor of an eCommunity school must be located within 50 miles of the school's base of operations. Ohio Rev. Code § 3314.023; Ohio Admin. Code §§ 3301-102-03(E)(2), 3301-102-04(A)(7)(a). Chartered eCommunity schools are required to provide their students with computers. Ohio Rev. Code § 3314.032(A)(1).

According to section 3314.03, community schools, including eCommunity schools, must provide learning opportunities to a minimum of twenty-five students for a minimum of nine hundred twenty hours per school year. Ohio Rev. Code § 3314.03(A)(11)(a). The schools may limit admission to certain groups of students, such as students who are academically at risk. Ohio Rev. Code § 3314.06. The school must also adopt an attendance policy whereby any student who fails to participate in 105 consecutive hours of the learning opportunities offered to the student is automatically withdrawn from the school. Ohio Rev. Code § 3314.03(A)(6)(b). According to the Virtual Schoolhouse, online instruction is available at all times, and students are required to meet monthly attendance benchmarks designed to ensure that they meet the State-mandated minimum of 920 hours per year (VS Handbook at 11). According to materials that we were provided, the school year lasts approximately forty-five weeks. This satisfies the requirement of hours of instruction. We do not have enrollment figures for the Virtual Schoolhouse; however, because it remains chartered by the State of Ohio, see www.ohiocharterschools.org/schools/, it also presumably still services at least twenty-five students, thus, satisfying the statute.

Teachers in community schools must be licensed in accordance with Ohio laws, except that non-certified teachers may teach up to twelve hours per week. Ohio Rev. Code § 3314.03(A)(10). In addition, teachers employed by eCommunity schools must conduct visits with their students in person throughout the academic year; the contract with the school's sponsor must specify the number of such visits and how they will be conducted. Ohio Rev. Code § 3314.031(B), (C)(2). According to the Virtual Schoolhouse's Student Handbook, its teachers are licensed in accordance with Ohio Revised Code §§ 3319.22-3319.30; see also Ohio Rev. Code § 3314.03(A)(10). Students of community schools must submit to statewide proficiency tests and comply with compulsory attendance policies. Ohio Rev. Code § 3314.03(A)(3), (A)(11)(d), citing § 3321.01. The Virtual Schoolhouse follows enrollment procedures as defined by Ohio Revised Code § 3314.06 and requires its students to submit to performance indicators as outlined in Ohio Revised Code 3314.03(A)(1)(g) (see VS Handbook at 19). Accordingly, the Virtual Schoolhouse satisfies the requirements of a community school under Ohio law and, therefore, it is considered a public school, satisfying the requirements of an educational institution. See also PR 02-050, Darla E. C__, Does the Electronic Classroom of Tomorrow (ECOT) Qualify as an Educational Institution Under Ohio State Law? (Your Ref. S2D5G3, Our Ref. 0P086, March 7, 2002).

LeCarlton's Full-Time Attendance.

In order to be entitled to student benefits, a student must be a "full-time elementary or secondary school student." 20 C.F.R. §§ 404.367-368. The regulations require that a student: (1) must be in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; (2) must carry a subject load considered full-time for day students under the institution's standards and practices; and (3) generally must attend school at least twenty hours a week. 20 C.F.R. § 404.367(b)-(c). Thus, to determine whether LeCarlton is entitled to CIB, it is necessary to establish whether the Virtual Schoolhouse should be considered a correspondence school.

As this Office noted in a previous legal opinion, see POMS PR 07905.039(A), Ohio eCommunity schools like the Virtual Schoolhouse share some characteristics of a correspondence school, but do not fit squarely into the definition of a correspondence school. For example, a correspondence school teaches by mailing lessons and exercises to the student, who returns the exercises to the school for grading. POMS RS 00205.330(A). As a student at the Virtual Schoolhouse, LeCarlton downloads assignments, completes them, and submits them to his instructors on a regular basis, while his parent mails samples of his completed work to his instructors on a weekly basis (VS Handbook at 4). In this way, the Virtual Schoolhouse is similar to a correspondence school.

However, the Virtual Schoolhouse differs from a correspondence school in other ways, because it offers virtual classrooms that allow LeCarlton to interact with other students and teachers. Unlike a correspondence school, learning takes place both offline and online under the guidance of State-certified teachers, to whom students have access throughout the semester via telephone or e-mail (VS Handbook at 3). Moreover, a Virtual Schoolhouse student is required to meet monthly attendance benchmarks designed to satisfy State attendance requirements, engage in a varied interactive online curriculum, take all State-mandated proficiency tests, and meet regularly in person with tutors (VS Handbook at 4, 11, 19). Given these characteristics, we conclude that the Virtual Schoolhouse should not be considered a correspondence school as defined by POMS RS 00205.330.

The Virtual Schoolhouse also shares many characteristics of an independent study program, although it does not fully meet the definition of independent study provided in the POMS. Under POMS RS 00205.285, independent study programs are run by local education agencies in accordance with State law requirements, and the credits earned count toward high school graduation. Consistent with the requirements of an independent study program, the credits LeCarlton earns count toward high school graduation (VS Handbook at 20). However, the Virtual Schoolhouse does not appear to be run by a local education agency. (Under Ohio law, eCommunity schools must have a sponsoring agency which may, but does not have to be, a local school board. The material we were provided does not identify the Virtual Schoolhouse's sponsor.) Like an independent study program, the Virtual Schoolhouse promises its students an individualized curriculum, with a written syllabus (VS Handbook at 3, 4). See RS 00205.285(C)(2). Independent study programs, however, also involve periodic teacher contact, direction, and testing on campus. The Virtual Schoolhouse does require periodic face-to-face tutoring, but would appear to differ from an independent study program by providing more student-to-student and student-to-teacher contact through its virtual classrooms. In addition, nothing in the Student Handbook suggests that the Virtual Schoolhouse requires students to participate in in-person testing. Given these characteristics, we conclude that while the Virtual Schoolhouse does not meet the definition of an independent study program, it is closer to an independent study program than to a correspondence school.

Finally, according to the materials we were provided, the Virtual Schoolhouse has verified that LeCarlton was carrying a subject load considered full-time, according to the standards and practices of the institution. LeCarlton also participated in online instruction for 20-25 hours per week. This satisfies the regulatory requirement for full-time attendance. See 20 C.F.R. § 404.637. Thus, LeCarlton was a full-time student when he turned eighteen, and under 42 U.S.C. § 402(d)(1), he can continue to receive benefits until he turns nineteen, provided that he maintains his full-time attendance status.

Conclusion

We conclude that the Virtual Schoolhouse is an educational institution under Ohio law. Although the Virtual Schoolhouse does not squarely fit the definition of a correspondence school, an independent study program, or a home school program, it comes closest to the definition of an independent study program. We also conclude that LeCarlton is a full-time student of the Virtual Schoolhouse.

Julie L. B~

Regional Chief Counsel, Region V

The Electronic Classroom of Tomorrow (ECOT) is a statewide, internet-based, public school district chartered under the community school laws in Ohio. Its curriculum is interactive, with teachers available through “virtual classrooms.” ECOT satisfies the requirements of a community school under Ohio law. Under Ohio Code, community schools are public schools. Since ECOT satisfies the requirements of a community school under Ohio law, and is therefore considered a public school, ECOT is an educational institution (EI) under Ohio law and for SSA purposes.

We had previously advised you that we had concluded that the Electronic School of Tomorrow (ECOT) qualifies as an educational institution under Ohio law, such that Darla E. C~ (Darla), an Ohio secondary school student at ECOT, could qualify for child's insurance benefits (CIB) on the account of Aaron L. C~. You questioned whether we had considered whether ECOT should be considered a correspondence school. We had considered this, and, for the reasons stated below, concluded that ECOT was not a correspondence school. However, since the school shares some characteristics with correspondence schools, the Agency may want to consider whether, as a matter of policy, electronic schools should be considered correspondence schools.

Background

Darla was entitled to CIB on the account of Aaron L. C~. Darla turned age eighteen on August XX, 2000. She was attending ECOT at that time.

ECOT is a statewide, internet-based, public school district chartered under the community school laws in Ohio. According to its website, ECOT offers a teacher-supported curriculum for students ranging from kindergarten through twelfth grade. ECOT also offers services for gifted students and students with physical, developmental, or learning disabilities. The curriculum is interactive and based on state-approved learning objectives, much of which is provided by the American Education Corporation. Teachers are available through virtual classrooms called “Learn Centers,” by telephone during office hours, and through e-mail at any time. Students can “chat” with each other through virtual classrooms.

According to Vernell B~, an ECOT student receives an average of forty hours per week of instruction online. The school tracks the number of hours a student is online. The school schedule consists of two semesters per year divided into four quarters, totaling approximately thirty-five weeks. According to ECOT, although materials were not available online until October 2000, ECOT mailed assignments to students. Upon graduation, students receive a high school diploma. Students must take proficiency tests in person. ECOT has verified that Darla was attending the school full-time during the 2000-01 school term.

According to Darla, she attends ECOT in order to care for her daughter. She spends twenty hours per week attending school online. She is required to be online for four hours per day. She studies American Government and Gym. She indicated that she did not attend school full-time between December 1999 and June 2000. Darla reported that she goes online to get her assignments and then faxes them to the school. According to Darla, she does not actually interact with any people (apparently by choice), but teachers are available seven days a week if she needs assistance.

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). A child over age eighteen can continue to receive benefits if the child is a full-time elementary or secondary school student. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(5). For purposes of entitlement to child's benefits under this section, a full-time elementary or secondary school student must be in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner. 42 U.S.C. § 402(d)(7)(A). Section 202(d)(7)(c)(i) of the Act states that an “elementary or secondary school” is “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.”

ECOT Is An Educational Institution (EI)

The Program Operation Manual System (POMS) provides that an EI is a school that provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which it is located. See POMS RS 00205.200. Unless there is some indication to the contrary, the following schools in the United States are considered to be EIs: elementary schools, middle schools, junior high schools, and high schools. Id. An institution must be a school to be an EI. Id. The POMS also sets forth the procedure for determining the EI status of a school if it cannot be assumed a school. See POMS RS 00205.250. An institution is a school if it: 1) maintains a program that is directed towards a specific educational objective, such as a diploma; 2) hires either professional teachers who hold State teaching certificates or individuals hired primarily to teach; and 3) uses formal teaching materials (e.g., texts) and facilities (e.g., classrooms and/or laboratories).

Therefore, pursuant to the statute, regulations, and POMS, it is necessary to examine Ohio law to determine whether ECOT is an EI. As we previously advised, it appears that ECOT satisfies the requirements of a community school under Ohio law, and, therefore, it is considered a public school, satisfying the requirements of an EI.

Under the Ohio Code, community schools are public schools, independent of any school district, and are part of the state's program of education. Ohio Revised Code § 3314.01(B). Community schools are exempt from state laws and rules except as outlined in the Ohio Revised Code section 3314 et seq. See Ohio Revised Code § 3314.04. According to section 3314.03, community schools must provide learning opportunities to a minimum of twenty-five students for a minimum of nine hundred twenty hours per school year. Ohio Revised Code § 3314.03(A)(11)(a). According to ECOT, it offers an average of forty hours of online instruction per week to its students, and its school year lasts approximately thirty-five weeks. This more than satisfies the requirement of hours of instruction. ECOT also purports to have 2,900 students enrolled. Although ECOT is being audited regarding its enrollment figures, it presumably still services at least twenty-five students, thus, satisfying the statute. Teachers in community schools must be licensed in accordance with Ohio laws, except that non-certified teachers may teach up to twelve hours per week. Ohio Revised Code § 3314.03(A)(10). According to ECOT's website, its teachers are licensed in accordance with Ohio Revised Code §§ 3319.22-3319.30. Students of community schools must submit to statewide proficiency tests and comply with compulsory attendance policies. Ohio Revised Code §§ 3314.03(A)(3), (A)(11)(d), citing § 3321.01. ECOT follows enrollment procedures as defined by Ohio Revised Code § 3314.06 and requires its students to submit to performance indicators as outlined in Ohio Revised Code 3314.03(A)(1)(g).

Darla's Full-Time Attendance Status

In order to be entitled to CIB, a student must be a “full-time elementary or secondary school student.” 20 C.F.R. § 404.367-68. The regulations require that a student: (1) must be in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration; (2) must carry a subject load considered full-time for day students under the institution's standards and practices; and (3) generally must attend school at least twenty hours a week. 20 C.F.R. § 404.367(b)-(c). The second issue, therefore, is whether Darla was a full-time student of ECOT.

If ECOT were a correspondence school, it is unlikely that Darla would qualify for FTA status. Under POMS RS 00205.330, a correspondence school student is generally not considered to be a full-time student. See also 20 C.F.R. § 404.367(b). To establish FTA status, Darla would have to show that she was participating in ECOT due to circumstances beyond her control and that she was expected to return to regular school. RS 00205.330B. Therefore, more information would be required to determine whether Darla had FTA status if ECOT were considered to be a correspondence school.

Upon first impression, it appears that ECOT shares many characteristics of a correspondence school. POMS RS 00205.330A. states that a correspondence school is a school that teaches by mailing lessons and exercises to the student. Upon completion, the student returns the exercises to the school for grading. As an ECOT student, Darla downloads assignments, completes them, and faxes or e-mails them to her instructor to be graded. In this way, ECOT is similar to a correspondence school. However, ECOT is different from a correspondence school in other ways because it offers virtual classrooms that allow students to interact with other students and teachers. Unlike in a correspondence school, learning takes place both offline and online under the guidance of state-certified teachers, to whom students have access throughout the semester via telephone or e-mail. Moreover, an ECOT student is required to be online at least four hours a day, engaging in an interactive online curriculum, and proficiency tests must be taken in person. Given these unique characteristics, we had concluded that ECOT should not be considered a correspondence school as defined by POMS RS 00205.330. However, because these types of on-line schools do share some characteristics of correspondence schools, the Agency may want to consider whether, as a matter of policy, these types of on-line schools should be considered correspondence schools.

We also considered whether ECOT should be considered an independent study program. If ECOT were an independent study program, Darla would qualify for FTA status. Under POMS RS 00205.285, a student in an independent study program can qualify for FTA status if she is in full-time attendance according to federal standards, and the school provides secondary education as determined under State law. See also 20 C.F.R. § 404.367(a)(2). ECOT provides four quarters of instruction each year, with approximately eight weeks of instruction each quarter. ECOT has verified that, since August 2000, Darla was carrying a subject load considered full-time according to the standards and practices of the institution. Darla also participated in online instruction for at least twenty hours per week. This satisfies the regulatory requirement for full-time attendance. See 20 C.F.R. § 404.637.

However, ECOT also does not fit squarely under the definition of independent study as defined by POMS RS 00205.285. Under POMS RS 00205.285, independent study programs are run by local education agencies in accordance with State law requirements, and the credits earned count toward high school graduation. Consistent with the requirements of an independent study program, ECOT requires students to participate in testing in person, and the credits Darla earns count toward high school graduation. Independent study programs also involve periodic teacher contact, direction, and testing on campus. ECOT appears different from an independent study program in this respect because it provides more student-to-student and student-to-teacher contact through its virtual classrooms and on-line chat rooms with other students. Moreover, unlike an independent study program, Darla would not have an individualized written plan of study. RS 00205.285C.2. However, since ECOT shares some characteristics with independent study programs the Agency may wish to consider whether, as a matter of policy, ECOT qualifies as an independent study program.

Conclusion

In summary, we conclude that ECOT is an EI under Ohio law. We further conclude, consistent with our prior opinion regarding Darla's status, that there are good reasons for finding that Darla's attendance at ECOT meets the requirements of FTA, and that ECOT should not be considered a correspondence school. However, since ECOT shares some characteristics with correspondence schools, the Agency may want to consider whether to categorize such on-line schools as correspondence schools. The Agency may also want to consider whether the ECOT program could be considered an independent study program, although the ECOT program does not fit squarely within that definition either

Thomas W. C~

Regional Chief Counsel, Region V

By: Anne M. L~

Assistant Regional Counsel

Redeemer Academy (RA) in Ohio does not provide education either as a nonpublic school or a home school in accordance with Ohio law. Thus, it is not an educational institution for SSA purposes.

This memorandum is in response to your request that we determine whether Redeemer Academy (RA) qualifies as an educational institution (EI) under Ohio law. You indicated that this information is necessary to determine whether Cherlyn S~, an Ohio secondary school student at RA, qualifies for student benefits on the account of Richard S~. We conclude that RA is not an EI.

Background

RA is a Christian, non-public school, located in Coshocton, Ohio.

RA was founded in 1997 as an extension of home schooling. The school administrator, Joyce R~, reported that she founded the school because several parents who were home schooling their children asked her and her daughter to teach their children so that they could have a more comprehensive curriculum. According to Ms. R~, they meet in a local church and, during the 1998-99 school year, when Cherlyn was a student, they had 35 students. RA has classrooms and text books, but does not have laboratories, although it offers science courses. RA offers classes for students from kindergarten through twelfth grade.

Ms. R~ described RA as a "half day" school, stating that students attended classes from 8:20 until 11:45 a.m., Monday through Friday. She further stated that the students were responsible for completing additional assignments before the next school day.

When asked about the nature of those assignments, she did not distinguish them from homework. Ms. R~ indicated that RA offers all of the subjects required by the State, and meets the state requirements for the number of credits. At the time Cherlyn attended RA, the school had four teachers, two of whom were certified, all of whom were hired primarily to teach. Ms. R~ reported that, before RA opened, she called the state and had each child fill out a home education form and mail it to the county superintendent, along with a copy to the district superintendent and the principal of the public school he or she would attend. She states that the school is not accredited. RA offers a high school diploma, which is accepted by some colleges without further documentation, and by other colleges if accompanied by a GED. RA has verified that Cherlyn was attending the school full time during the 1998-99 school term.

The Assistant Superintendent of Coshocton Schools, Jeff W~, reported that students in Coshocton are required to attend school for a minimum of 5/12 hours per day. He stated that the parents of children who are applying to educate them at home are required to file a home education form verifying that they intend to teach them at home, and that someone with at least a high school diploma is teaching them. They also must verify that the children will receive 900 hours of instruction per year. After these forms are filed, Mr. W~ sends a letter to each student indicating that his or her notification is on file. Mr. W~ stated that, as of the 2000-2001 school year, RA students had home education forms and its curriculum on file with the school district, but had not done so in previous years. He found no record of a home education form for Cherlyn S~ for the 1998-99 school year. Because Mr. W~ indicated that Cherlyn might not live in the city, and because, for at least one year, Cherlyn attended a county high school, We checked with the two counties that surround the Coshocton area. Neither the Riverview schools nor the Ridgewood schools have a home education form on file for Cherlyn for the 1998-99 school year.

Legal Authority

The Social Security Act provides for the payment of child's insurance benefits (CIB) to certain unmarried children of individuals who are entitled to old-age or disability insurance benefits. 42 U.S.C. § 402(d). Under the applicable provision, an eligible child must be under the age of 19 and a full-time elementary or secondary school student. 42 U.S.C. § 402(d)(1). For purposes of entitlement to child's benefits under this section, a full-time elementary or secondary school student must be in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner. 42 U.S.C. § 402(d)(7)(A). Section 202(d)(7)(c)(i) of the Act states that an "elementary or secondary school" is "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."

The regulations set forth the terms under which a student is considered to be a "full-time elementary or secondary school student." As stated in the statute, a student may be eligible for benefits if she attends a school which provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located. See 20 C.F.R. § 404.367(a). A student may also be eligible for benefits if she is instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which the student resides, see 20 C.F.R. § 404.367(1), or if she is in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration for at least twenty hours per week, and carries a subject load which is considered full-time for day students under standards or practices set by the State or other jurisdiction in which the student resides. See 20 C.F.R. § 404.367(2). In addition, eligible students may not be paid by an employer who has requested or required that they attend school; must be in grade 12 or below; and must not be subject to provisions precluding payment of benefits to certain prisoners and other inmates of publicly funded institutions pursuant to 20 C.F.R. § 404.468. See 20 C.F.R. § 404.367(2)(d)-(f).

The Program Operation Manual System (POMS) provides that an EI is a school that provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which it is located. See POMS § RS00205.200. Unless there is some indication to the contrary, the following schools in the United States are considered to be EIs: elementary schools, middle schools, junior high schools, and high schools. Id. An institution must be a school to be an EI. Id. The POMS also sets forth the procedure for determining the EI status of a school. See POMS § RS00205.250. An institution is a school if it: 1) maintains a program that is directed towards a specific educational objective, such as a diploma; 2) hires either professional teachers who hold State teaching certificates or individuals hired primarily to teach; and 3) uses formal teaching materials (e.g., texts); and facilities (e.g., classrooms and/or laboratories).

Therefore, pursuant to the statute, regulations, and POMS, it is necessary to examine Ohio law to determine whether RA is an EI and whether Cherlyn is eligible for CIB.

Ohio law sets out the State's compulsory education requirements for students between the ages of 6 and 16 and requires them, with certain exceptions, to attend public school during the entire school year. See Ohio Revised Code § 3321.01. Ohio law requires that children who do not attend public schools must attend schools that conform to the minimum standards prescribed by the state board of education. In addition, it requires that the hours and term of attendance of nonpublic schools "shall be equivalent to the hours and term of attendance required of children in the public schools of the district." See Ohio Revised Code § 3321.07.

Finally, Ohio law contains special provisions for home-schooled students. The parent or guardian of a home-schooled child must supply the following information to the district superintendent: 1) the school year in which the notification of intent to home educate is made; 2) the name and address of the parent; 3) the name and address of the person(s) who will be teaching the child; 4) the full name and birth date of the child to be home educated; 5) assurance that the home education will include specific subjects required by the school district; 6) a brief outline of the intended curriculum for the current year; 7) a list of textbooks, correspondence courses, commercial curricula, and other basic materials the parent intends to utilize in the home education; 8) assurance that the child will be given at least 900 hours of home education each school year; 9) assurance that the home teacher has a high school diploma or certificate of high school equivalence, or is working under a person with an undergraduate degree from a recognized college, until the child's tests results demonstrate reasonable proficiency, or until the home teacher obtains a high school diploma or certificate of equivalence; 10) a signed affirmation that the information supplied is correct. See Ohio Revised Code § 3301-34-03(A).

Discussion

In order to be considered an EI, RA must show that it meets the requirements of State law. See POMS § RS00205.200. There are different provisions for typical nonpublic schools and home schools. As Joyce R~, the school administrator, described it, RA has some characteristics of a private, parochial school, but has other characteristics of a home school. We conclude that it is not an EI, because, during the relevant time period, it did not meet the State requirements for either a typical nonpublic school or a home school.

Ohio law requires that children who do not attend public schools attend schools that conform to the minimum standards prescribed by the state board of education, and that the hours and term of attendance of nonpublic schools "shall be equivalent to the hours and term of attendance required of children in the public schools of the district." See Ohio Revised Code § 3321.07. The Coshocton school district requires that students attend school for a minimum of 5 << hours per day. As stated earlier, RA students attend school for only 3 << hours per day and, although they are required to do additional assignments in the afternoon, Ms. R~ did not clearly distinguish this from homework. Significantly, RA does not have a longer school term during which additional hours of instruction are provided. Therefore, RA does not meet the State requirement that its students receive hours of instruction that are equivalent to those required of public school students in the district, and this disqualifies it from EI status as a typical nonpublic school.

The State of Ohio has special rules for home educated children, requiring that they have 900 hours of instruction per year. RA students attend school for 3 << hours per day, five days per week, approximately nine months per year. See Ohio Revised Code § 3301-34-03(A). Therefore, they get approximately 630 hours of instruction per year, which is well below the State requirement for home educated children. As indicated above, the school administrator suggested that the students had additional educational requirements to complete each day, but there is no evidence that these requirements constitute hours of instruction rather than homework, so there is no way to quantify them. The fact that RA fails to meet the State requirement of 900 hours of instruction for home educated students, also disqualifies it from EI status as a home school.

Conclusion

In summary, we conclude that RA is a not an EI under Ohio law.

General Education Development (GED) programs in Hamilton County, Ohio operated by the Cincinnati Board of Education's Adult Basic Education (ABE) office provide the equivalent of a high school education.

The curriculum of the Norwood Community School (NCS) provides the equivalent of a high school education as defined under Ohio law.

Thus, the NCS and the GED programs in Hamilton County, Ohio operated by the Cincinnati ABE office are educational institutions for SSA purposes.

By memorandum dated May 9, 1991, you asked us whether some twenty-five Adult Basic Education/General Education Development (ABE/GED) programs in Cincinnati, Ohio qualify as educational institutions (EIs) for purposes of Social Security child benefits. By memorandum dated July 23, 1991, you asked us the same question regarding the Norwood Community School (NCS) in Norwood, Ohio. All these programs are in Hamilton County. Under section 202(d)(1) of the Social Security Act, child's benefits can be paid to full-time elementary or secondary school students who are not yet nineteen. Under section 202(d)(7)(C)(i), an educational institution is a school that provides elementary or secondary education as determined under the law of the State in which it is located.

In our opinion, all of the programs you asked us to review, including the Norwood Community School in Norwood, Ohio, can be recognized as educational institutions (EIs) for SSA purposes. This opinion affects beneficiaries who have applied to the Cincinnati Downtown DO and to the Cincinnati North DO. /

The basis for our conclusions follows.

DISCUSSION

Each program we reviewed follows a prescribed course of study and uses formal teaching materials and facilities, although each student's course of study may vary since it may be tailored to the individual needs of the student. Each program appears to hire individuals primarily to teach, although the credentials of the teachers may vary.

Section 202(d)(1) of the Social Security Act permits payment of child's benefits to full-time elementary or secondary school students who are not yet nineteen.

Section 202(d)(7)(C)(i) of the Social Security Act states:

An "elementary or secondary school" is 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.

20 C.F.R. 404.367(a) restates the statutory definition. 20 C.F.R. 404.367(b) defines full-time attendance as 20 hours per week at a course of study that lasts at least 13 weeks in duration.

In setting forth SSA's policy in this area, POMS RS 00205.200, titled "What Is An EI — Policy" says:

An EI is a school that provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which it is located.

Assume, unless there is some indication to the contrary, that the following schools in the U.S. are EI's:

• •

  elementary schools;

• •

  middle schools;

• •

  junior high schools; and

• •

  high schools.

POMS RS 00205.250 A.2 states that "If the student indicates the type of school is a high school, accept the allegation unless there is information or knowledge to the contrary." The POMS section continues with procedures to determine the EI status of a school. First, POMS RS 00205.250 B.1 requires determining that the institution is a school. There is no question here that the requirements outlined in the POMS section for a school are met by each of the GED programs you have described, since each maintains a program that is directed toward a specific educational objective, namely that its students take and pass the GED examination; each appears to hire individuals primarily to teach; and each uses formal teaching materials and facilities.

Next, POMS RS 00205.250 B.2 requires a multi-step process to determine if the school provides elementary or secondary education as determined under State law. Where the school has not applied for or received accreditation from the State, SSA must then ascertain if the State or local department of education or its equivalent can state that the school provides an approved elementary or secondary program. If not, the POMS section directs that the case be submitted to the chief counsel in the region to determine if the school qualifies as an EI under the State or other local jurisdiction.

Finally, POMS RS 00205.300 H restates that only education through grade 12 is relevant. This section specifically states with regard to GED programs:

"b. Consider a GED program grade 12 or below if, under the law of the State of other jurisdiction in which the school is located, the GED program is an approved elementary or secondary level program."

In previous opinions, we have concluded that a program of education need not be affirmatively accredited or approved by the State to be an EI for Social Security purposes. Our legal opinion is consistent with the POMS policy that creates a presumption that a school is an EI if it is identified as one.

In addition, in previous opinions we have generally referred to the State's compulsory education law in order to determine whether schools that have not been affirmatively accredited by the State can qualify as secondary schools for Social Security purposes. All those opinions involved education programs that included children under the age of sixteen who were subject to the State's compulsory education law. With regard to GED programs, however, we found in Ohio that students under age nineteen that are enrolled in GED programs are required to affirmatively withdraw from high school, which includes securing the written concurrence of the principal. Ohio Administrative Code, O.A.C. § 3301-41-01. In so doing, students become exempt from Ohio's compulsory education law. Ohio Revised Code, O.R.C., Chapter 3321. Moreover, it appears that none of the programs enroll students under the age of sixteen. /

Ohio's compulsory education law therefore does not resolve the status of the GED programs you have described. Instead, we have evaluated the GED programs under other relevant provisions of Ohio's laws. Although not controlling, we have also regarded as relevant that portion of Ohio's compulsory education law that requires instructional programs outside the public schools to provide education that is equivalent to that provided in the public schools. O.R.C. § 3321.07. /

The GED is a test of general educational development (GED) published by the American Council on Education. Upon passing the GED test in Ohio, the student receives an "Ohio Certificate of High School Equivalence." According to the Ohio Administrative Code, O.A.C. § 3301-41-01, a GED certificate is a statement that the holder thereof has achieved the equivalent of a high school education. The minimum standards of a high school education in Ohio are set by the State board of education, O.R.C. § 3301.07.

To take the GED test in Ohio, under O.A.C. § 3301-41-01 you must be nineteen years old unless: (1) you are eighteen years old and in the military; (2) you are eighteen years old and your class has already graduated from high school; (3) you are eighteen years old, your class has not yet graduated but you have withdrawn from school with the written approval of the principal; or (4) you are between sixteen and eighteen and you have withdrawn from school with the written approval of a parent, guardian or court official, and the principal of the school you would be attending. In addition, under O.A.C. § 3301-41-01 the application fee to take the GED test is waived if you have gotten a passing score on the official practice test of general educational development administered through a public or nonprofit adult education program, and the practice test scores are certified by the director of a public or nonprofit adult education program.

Our analysis of the relevant facts in light of these laws is as follows.

The Cincinnati Board of Education's Adult Basic Education (ABE) office operates a number of educational programs, including programs that prepare their students to take and pass the GED examination. Although the Cincinnati Downtown DO was told that there is no approval or accreditation process in existence for GED classes, we were advised by the Cincinnati ABE office that their GED programs were fully approved by the board of education, which operated and staffed the programs. / According to the Cincinnati ABE office, the GED curriculum is designed to provide the equivalent of a high school education. Although students under nineteen are encouraged to enroll in a regular high school, students who have written approval to withdraw from high school are permitted to enroll in the ABE GED programs.

The Norwood Community School (NCS), on the other hand, is not operated by the board of education. We were nonetheless advised that its curriculum is similarly designed to provide the equivalent of a high school education as defined under State law. As part of its contract to receive funds from the Hamilton County Ohio Work Program (OWP), the NCS has agreed to report student attendance and must satisfy performance criteria that include: (1) an acceptable rate of passing the GED test, and (2) assurance that students who do not pass the GED test progress at least two reading levels a year. /

In addition, it also appears that students at all the programs we reviewed are eligible to have the fee for the actual GED test waived by the State board of education if they achieve a passing score on the pretest given by or arranged for by their GED program. None of the programs we reviewed charge tuition for their students. Even though Norwood Community School (NCS) stated that it does not give the pretest, the OWP advised us that NCS must arrange for its students to take the pretest as a condition of its contract with OWP.

We therefore conclude that the GED programs we reviewed provide a secondary education under the law of Ohio. Even though each student's particular course of study is tailored to the individual needs of the student, all the programs follow a prescribed course of study and use formal teaching materials and facilities. All the programs hire individuals primarily to teach, although not all the teachers are certified. Students at all the programs we reviewed are eligible to have the fee for the actual GED test waived by the State board of education if they pass the pretest given by or arranged for by their GED program. Most importantly, the curriculum of each program is designed to provide the equivalent of a high school education, for which minimum standards are set by the State board of education. The GED certificate itself is, under State law, the equivalent of a high school education. Passage of the GED entitles the student to an "Ohio Certificate of High School Equivalence." For the foregoing reasons, in our opinion the courses of instruction we reviewed that are designed to prepare students to take and pass the GED test provide the equivalent of a high school education under Ohio law. They can be therefore be recognized as educational institutions (EIs) for SSA purposes. /

As a separate matter, we remind you that SSA must also determine that each claimant is a "full-time student." 20 C.F.R. § 404.367(b) defines full-time attendance as twenty hours per week at a course of study that lasts at least thirteen weeks in duration. Some of the programs we reviewed require attendance of more than twenty hours a week, but others permit attendance of less than twenty hours. Moreover, we are advised that although most students take GED classes for at least three or more months, some students take their GED test after fewer than thirteen weeks of classes. Even though a particular GED program is otherwise an educational institution (EI) for SSA purposes, SSA must therefore also ascertain the hours and expected length of attendance for each GED student that applies for Social Security benefits as a child. POMS RS 00205.350 B.7.

At the time the regional attorney was asked to decide whether Calvary Christian Academy (CCA) in Cincinnati, Ohio qualified as an educational institution, CCA did not meet all the requirements of Ohio's compulsory education statute. Thus, it was not an educational institution for SSA purposes.

You have asked for our opinion as to whether Calvary Christian Academy ("CCA") in Cincinnati, Ohio, meets the definition of an educational institution ("EI") as set out in the Program Operations Manual System (the "POMS") at RS 00205.200.

Classes at CCA are in session from 8:30 a.m. through 3:00 p.m., Monday through Friday. CCA instructs students in kindergarten through the twelfth grade. According to CCA's principal, seven of the school's nine teachers have college degrees and state teaching certificates while the remaining two have neither. Colleges and universities nationwide have accepted CCA graduates.

Section 202(d)(7)(C)(i) of the Social Security Act defines an elementary or secondary school as a school which provides elementary or secondary education, respectively, as determined under the law of the state in which it is located. The implementing regulation reiterates this definition. See 20 C.F.R. § 404.367(a).

The initial determination is whether the institution in question is a school. POMS RS 00205.250B.1. CCA qualifies as such, since it maintains a program directed toward a diploma, hires individuals primarily to teach, and uses formal teaching materials and facilities.

Next, SSA must ascertain whether (1) the school has applied for or received accreditation from the state or (2) the state department of education can attest that the school provides an approved elementary or secondary program. POMS RS 00205.250B.2. CCA cannot meet either of these tests./ Thus, in order to determine whether CCA is an EI, we must examine Ohio law.

Ohio law provides that there is no violation of the compulsory education statute so long as the instruction given in a non-public school conforms to the "minimum standards prescribed by the state board of education." The hours and term of attendance exacted shall be equivalent to the hours and term of attendance required of children in the public schools of the district. Ohio Rev. Code Ann. §§ 3321.04, 3321.07 (Anderson).

The minimum standards for non-chartered, non-tax supported schools, including religious schools such as CCA, are published in the Ohio Administrative Code at § 3301-35-08 (copy attached). Although dated 1983, we have checked the administrative code and this section is still current as written. According to the code's provisions, CCA must (A) be open for instruction at least 182 days each school year; (B) be in session for no less than five hours (not including the noon recess) each day; (C) report pupil attendance each year to the treasurer of the board of education; (D) employ only teachers and administrators who have received a bachelor's degree or the equivalent from a recognized college or university; (E) teach courses of study as prescribed by § 3301-35-08(E); (F) follow regular procedures for promoting pupils from grade to grade; and (G) comply with state and local health, fire and safety laws.

The documentation you submitted indicates that CCA is in session from 8:30 a.m. to 3:00 p.m.; that is, five and one-half hours per day (excluding an hour for lunch), which satisfies subsection B. With respect to subsection D, teacher and administrator qualifications, it is apparent that CCA does not satisfy this provision. Some of its instructors do not possess bachelor's degrees. CCA does, however, appear to meet the requirements for subsection E, courses of study; page 17 of the Parent/Student Handbook indicates that CCA follows the Ohio Department of Education's minimum standards for graduation under a college preparatory program.

With regard to minimum number of days open for instruction each school year (subsection A), attendance reporting (subsection C), pupil promotion (subsection F) and pupil health and safety (subsection G), we do not have sufficient information to determine whether CCA meets the criteria set out in the administrative code./ Your district office will be in the best position to make a decision on these issues once it investigates the school further.

CCA does not meet all the criteria under § 3301-35-08 of Ohio's administrative code. Therefore, the school is in violation of Ohio's compulsory education statute. Until you can establish that CCA is open for the requisite number of days per year, hires only teachers and administrators who have bachelor's degrees, reports pupil attendance each year to the treasurer of the board of education, follows regular procedures for promoting pupils from grade to grade and complies with state and local health, fire and safety laws, you should not consider CCA an EI for SSA purposes.

Norwood Baptist Christian School (NBCS) in Cincinnati, Ohio provides education that meets all the requirements under Ohio's compulsory attendance law. Thus, NBCS is an educational institution for SSA purposes.

By memorandum dated April 19, 1994, you asked us for an opinion on whether Norwood Baptist Christian School (NBCS) in Cincinnati, Ohio meets the definition of an "educational institution (EI)" set out in the Program Operations Manual System (POMS) at RS 00205.200.

In our opinion, Norwood Baptist Christian School can be recognized as an educational institution (EI) for SSA purposes. This response affects payment of benefits to a beneficiary.

DISCUSSION

Section 202(d)(7)(C)(i) of the Act states that:

An "elementary or secondary school" is 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.

20 C.F.R. 404.367(a) restates the statutory definition.

In setting forth SSA's policy in this area, POMS RS 00205.200, titled "What Is An EI — Policy" says:

An EI is a school that provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which it is located.

Assume, unless there is some indication to the contrary, that the following schools in the U.S. are EI's:

• •

  elementary schools;

• •

  middle schools;

• •

  junior high schools; and

• •

  high schools.

POMS RS 00205.250 A.1 requires you to "[d]evelop EI status only if the student is in FTA [full-time attendance] or has established intent to be in FTA and you cannot assume the school is an EI per RS 00205.200."

POMS RS 00205.250 A.2 states that "If the student indicates the type of school is a high school, accept the allegation unless there is information or knowledge to the contrary."1/

POMS RS 00205.250 A.3 says to consider the school to be an EI if it:

• •

  meets the educational requirements of the State in which it is located . . .; and

• •

  maintains a program that is directed toward a specific educational objective, such as a diploma; and

• •

  hires either professional teachers who hold State teaching certificates or individuals who meet the State educational requirements; and

• •

  uses usual teaching materials (e.g., texts) and teaches the required courses.

We have given you opinions regarding home schooling and GED programs in Ohio. However, we have never given you a legal opinion about the requirements for non-public schools such as NBCS under Ohio law. 2/

The relevant requirements of Ohio are contained in Ohio's compulsory education law, which at Ohio R.C. § 3321.07 contains the following requirements for a child that attends a private, rather than a public, school:

If any child attends upon instruction elsewhere than in a public school such instruction shall be in a school which conforms to the minimum standards prescribed by the state board of education. The hours and term of attendance exacted shall be equivalent to the hours and term of attendance required of children in the public schools of the district. This section does not require a child to attend a high school instead of a vocational, commercial, or other special type of school, provided the instruction therein is for a term and for hours equivalent to those of the high school, and provided his attendance at such school will not interfere with a continuous program of education for the child to the age of sixteen. 3/

Looking to the above-stated requirements of POMS, NBCS provides instruction in "a school which conforms to the minimum standards prescribed by the state board of education." NBCS also requires both hours and term of attendance that are "equivalent to the hours and term of attendance required of children in the public schools of the district." Finally, there is no question that NBCS maintains a program that is directed toward a specific educational objective, such as a diploma; hires professional teachers who hold State teaching certificates; and uses usual teaching materials (e.g., texts) and teaches the required courses.

With regard to NBCS's elementary school, the school's Handbook at page 8 states that the elementary school is a "state chartered elementary school." In addition, the District Office's [DO's] November 2, 1993 report of contact states that NBCS is accredited for kindergarten through the eighth grade by the State of Ohio. Under POMS RS 00205.250B.3, with regard to an NBCS e1ementary school student, you can document the file with a copy of the approval and continue to adjudicate the claim without a legal opinion from us. 4/

With regard to NBCS's high school, the school has chosen to forego state accreditation. This is permitted under Ohio law. However, in such cases, OAC 3301-35-08 requires that a "school, which is not chartered or seeking a charter from the state board of education because of truly held religious beliefs, shall annually certify in a report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered non-tax supported schools." The seven minimum standards, which include hours and term of instruction equivalent to those of public school children, are enumerated in the rule. NBCS has advised SSA by letter dated April 15, 1994 that it is in compliance with the Ohio code governing nonchartered and non-tax supported schools. Moreover, corroborating information shows that NBCS in fact meets each of the seven minimum standards.

First, state law requires that the school be open not less than 182 days each year. Here, the school's handbook at page 25 states that it is open for at least 182 days each year, as required by state law. Moreover, the DO's April 7, 1994 report of contact describes 185 scheduled days of instruction during the school year.

Second, state law requires five hours of instruction each day for students in grades one through twelve. Here, it is apparent from the school's handbook that students in grades one through twelve have at least five hours of school each day. Moreover, the DO's April 7, 1994 report of contact describes 6 hours and 40 minutes of instruction each day.

Third, Ohio's compulsory attendance law requires that the school annually report pupil attendance to the appropriate authorities. According to the DO's April 15, 1994 report of contact, NBCS makes the required annual attendance report for all its students.

Fourth, state law requires that teachers and administrators shall have a bachelor's degree or its equivalent. Here, the, school's handbook at page 8 states that all teachers are certified, which more than satisfies the state's requirement. In addition, the DO's April 14, 1994 report of contact states that the school's two administrators have a master's degree in education in addition to state certification.

Fifth, state law requires courses of study in the subjects of language arts; geography, history, and government; mathematics; science; health; physical education; fine arts; and first aid, safety, and fire prevention. Here, the school's handbook at page 9 establishes that NBCS offers more than the required courses. Moreover, the handbook states that, "As a member of the Association of Christian Schools International . . . the course units surpass state minimum requirements." In addition, the DO's April 7, 1994 report of contact states that students are required to accumulate 22 credits to graduate; that the school requires an equivalent grade level accomplishment on the Stanford Achievement Test; and that better than 90% of the school's graduates go on to college.

Sixth, state law requires a non-public school to have regular procedures for promotion from grade to grade for pupils who have met the school's educational requirements. Here, the school's handbook and the DO's reports of contact establish that the school meets this requirement.

Seventh, there does not appear to be any question that the school complies with state and local health, fire and safety laws.

In our opinion, under the principles outlined in the POMS, the foregoing facts establish that NBCS would be found to provide education in a school recognized under Ohio's compulsory attendance law as well as under POMS. This provides adequate legal basis for us to conclude that NBCS is an educational institution (EI) for SSA purposes.

1/ You have apparently chosen not to accept at face value that NBCS is a high school because it is not accredited by the state.

2/ We note that POMS has been revised since our earlier opinions. The current POMS requires that you make slightly different inquiries for home schooling and GED programs than you make for schools such as NBCS. Moreover, we remind you that under Ohio's compulsory education law home schooling is treated differently than education provided by non-public schools. We therefore limit this opinion to schools such as NBCS.

3/ Although Ohio's compulsory education law applies only to students through age sixteen, NBCS provides identical education to its students through high school graduation. Thus, the school may be found to comply with the state's standards with regard to all its students, even those over age sixteen.

4/ If you are unable to obtain a copy of the State's approval, we nonetheless conclude that the elementary school is an EI for the reasons we discuss below with regard to the high school.