High Road School of Bloomington, based in Bloomington, Illinois, qualifies as an educational institution.

You asked whether High Road School of Bloomington (High Road), based in Bloomington, Illinois, may be considered an educational institution (EI) for purposes of awarding student benefits. For the reasons discussed below, we conclude that High Road qualifies as an EI.

Claimant C~ is seeking child’s benefits due to his reported status as a full-time student at High Road.

The claimant submitted a Form SSA-1372-BK^[1] dated September xx, 2019. The claimant indicated that he was enrolled at High Road on a full-time basis beginning on August xx, 2018. He reported that he was scheduled to attend High Road 30 hours per week. He also indicated that he expects to graduate in May 2020.

The Program Director of High Road, certified the SSA 1372-BK on September xx, 2019. The Program Director certified that the information the claimant had provided on the SSA 1372-BK was correct, that the school’s course of study is at least 13 weeks in duration, and that the school operates on a yearly basis.

The Social Security Act (Act) provides for the payment of child 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 42 U.S.C. § 402(d)(1). Generally, entitlement to CIB ends, for a non-disabled child, when a child turns age 18. See 42 U.S.C. § 402(d)(1)(E). However, a child may be entitled to CIB as a student (i.e., student benefits) after the child turns 18 if the child is a full-time elementary or secondary school student (and meets other criteria). See 42 U.S.C. § 402(d)(1)(B), (1)(E); 20 C.F.R. § 404.350(a)(5); POMS RS.00205.001A.

The Act defines “full-time elementary or secondary school student” as an individual who is in full-time attendance^[2] as a student at an elementary or secondary school, as determined by the Commissioner of Social Security by regulation. See 42 U.S.C. § 402(d)(7)(A); see also 20 C.F.R. § 404.367. “Elementary or secondary school,” in turn, is defined as “a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.” 42 U.S.C. §402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a); POMS RS 00205.200A. The POMS refers to such a school as an “educational institution.” POMS RS 00205.200A. Under the POMS, it is assumed that public schools in the United States are educational institutions, absent evidence to the contrary. See POMS RS 00205.250B.1. Conversely, a non-public school cannot be assumed to be an educational institution.

High Road Is An Educational Institution.

High Road categorizes itself as a private, special education school in Bloomington, Illinois.^[3] Therefore, we must determine whether High Road provides elementary or secondary education under Illinois law. POMS RS 00205.200A.

The Illinois School Code allows for placement of public school students in nonpublic special education facilities when the special education program within the child’s public school district cannot meet the child’s needs. 105 ILCS § 5/14-7.02; 23 IL Admin Code § 226.330; see also 20 U.S.C. Ch. 33. If the school qualifies as a special education facility, the local school district will pay the student’s tuition, under these circumstances. See 105 ILCS § 5/14-7.02.

Before a nonpublic special education facility can accept placement of a child pursuant to Section 5/14-7.02, it must comply with the appropriate rules and regulations promulgated by the State Superintendent of Education. 105 ILCS § 5/14-7.02. Under these state regulations, any such nonpublic special education facility must be approved by the State Board of Education (SBE). 23 IL Admin Code § 401.10. The SBE conducts an on-site review and evaluates the facilities and programs to ensure that the facility and programs conform with the regulations. Id. at 410.10(c). Once the program is “Approved,” the facility is available for the placement of students (although the school district has ongoing responsibilities with respect to monitoring their students that are placed in the facility). Id. at 410.10(d).

The Illinois SBE has”[A]pproved” High Road as a nonpublic special educational facility.^[4] Therefore, the State has determined that the school conforms with the legal regulatory requirements to be considered a special education facility. We believe this is sufficient to conclude that High Road qualifies as an EI pursuant to POMS RS 00205.250(B).

For the reasons discussed above, High Road is an Educational Institution.

Illinois Online High School (now known as International Online High School) qualifies as an educational institution if the student is enrolled in the High School Graduation Course. The courses offered in public school include language arts, mathematics, biological and physical sciences, social sciences, fine arts, and physical development and health.

SUMMARY

You asked whether Illinois Online High School (“IOHS”), based in the State of Illinois, may be considered an educational institution (EI) for purposes of awarding student benefits. For the reasons discussed below, we conclude that IOHS may be considered an EI when a student is enrolled in the High School Graduation Course. Additional information is needed to determine whether the claimant meets the state requirements for full time attendance.

BACKGROUND

Claimant B~ is seeking child’s insurance benefits due to her reported status as a full-time student at IOHS. The claimant was born on July XX, 1997, and thus she is currently 19 years old.

The agency uses Form SSA-1372-BK as the primary means for determining whether a child is a full-time student at a qualifying educational institution. POMS RS 00205.735. The claimant submitted a SSA-1372-BK dated May 2, 2016. The claimant indicated that she was enrolled at IOHS on a part-time basis beginning on January 13, 2014. She reported that as of March 23, 2016, she was enrolled on a full-time basis and was scheduled to attend IOHS 30 hours per week. She also indicated that she expected to graduate in August 2016.

Dr. L, the director of IOHS, certified the SSA 1372-BK on July 20, 2016. Dr. L~ certified that the information the claimant had provided on the SSA 1372-BK was correct, and that the school’s course of study was at least 13 weeks in duration. Dr. L~ also submitted a Notice of Cessation of Full-Time School Attendance, dated July 20, 2016. Dr. L~ indicated that the claimant ceased full-time attendance at Elmwood Park High School in May 2013. She reported that the claimant was expected to graduate in August 2016.

DISCUSSION

The Social Security Act (Act) provides for the payment of child insurance benefits 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 student benefits, 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 she turns 19 years old, regardless of her 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.

To satisfy the “full-time attendance” requirement, a student must meet both federal and state standards. See POMS RS 00205.300A. To meet the federal standards, the claimant must be enrolled in a noncorrespondence course of at least 13 weeks’ duration and be scheduled for attendance at the rate of at least 20 hours per week (with certain exceptions). See 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300C. The state requirements are met if the school considers the claimant to be a full-time student based on the school’s standards and practices for day students. See POMS RS 00205.300B.

The Act defines “Elementary or secondary school” as “a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.” Section 202(d)(7)(C)(i) of the Act; see also 20 C.F.R. § 404.367(a). The POMS refers to such a school as an “educational institution” (EI). See POMS RS 00205.200A. Under the POMS, in general it is assumed that American public schools are EIs, absent evidence to the contrary; a non-public school cannot be assumed to be an EI. See POMS RS 00205.250B.

POMS RS 00205.275 sets forth agency policy with respect to home schools. It defines a home school as “a private educational program in which the student is taught within the home by a parent/teacher.” POMS RS 00205.275A. A child attending a home school may be a full-time student if: (1) the student meets the standards for full-time attendance as defined in RS 00205.300, (2) the law of the state in which the home school is located recognizes the home school as an EI, (3) the home school meets the requirements of the state law where the student resides, and (4) the student meets all other requirements for benefits. See POMS RS 00205.275B.

IOHS Is An Educational Institution When A Student Is Enrolled In The High School Graduation Course.

IOHS categorizes itself as a home school. Therefore, since the claimant lives in Illinois, it is necessary to determine whether IOHS meets the requirements of Illinois home school law. POMS RS 00205.275B. Illinois’ compulsory attendance law provides that a child is not required to attend public school if she attends a private school that meets certain requirements. 105 ILCS § 5/26-1(1). Illinois courts have interpreted “private school” to include home schools “where the teacher is competent, the required subjects are taught, and the child receives an education at least equivalent to public schooling.” See People v. Harrell, 180 N.E. 2d 889, 890 (Ill. App. Ct. 1962), citing People v. Levisen, 90 N.E.2d 213 (1950). Based on Illinois precedent, the issue in determining whether IOHS qualifies as a private school under Illinois law is whether students at IOHS receive an education at least equal to public schooling, i.e., the students are taught the branches of education taught to children in public schools. Id.; 105 ILCS § 5/26-1(1). The “branches of education” include language arts; mathematics; biological and physical sciences; social sciences; fine arts; and physical development and health. 105 Ill. Comp. Stat. 5/27-1.

The materials submitted to us suggest that until April 20, 2016, the claimant was not attending an EI because she was not receiving an education at least equal to public schooling. The materials include a document titled IOHS Grade Report, which reflects that the claimant completed .5 credits as of October 2015, by earning an A in consumer math. This suggests that the claimant was not receiving an education equal to public school because she was not studying all of the required “branches of education.”

The materials submitted also include an undated document labeled “Syllabus – Portfolio.” A notation at the bottom of the Syllabus – Portfolio described the Accelerated Option, which allowed students to complete 20 credits in a 20-week course. It appears that the claimant was enrolled in this Accelerated Option. The Syllabus – Portfolio reflects that between April 20, 2016 and May 15, 2016, the claimant completed one week of studies in each of the following subjects: English 103, American literature, British literature, and African American literature. The claimant was scheduled to complete one week of studies in each of the following subjects: algebra 1A, algebra 1B, geometry, biology, chemistry, physics 1, American government, African American history, world religion, mixed media art, computer tech, health and physical education 1, health and physical education 2, American music, Spanish 1, and Spanish 2. These courses of study satisfy the required “branches of education” under Illinois state law.

We also reviewed IOHS’s website in attempting to determine whether it satisfies the above requirements. The IOHS website lists several course options for students. IOHS offers a High School Graduation Course, which allows students ages 17 and up who are not in school to pace themselves to complete 20 credits in 5 to 24 months. It appears that the claimant is attending the accelerated version of this program, during which she will earn 20 credits in 20 weeks. Thus, as of April 20, 2016, when the claimant began the Accelerated High School Graduation Course, she was receiving an education at least equivalent to public school, as the required “branches of education” were taught.

As a final matter, we note that it appears the teacher is competent. Dr. L~ is the director of IOHS and also the teacher. Dr. L~ currently holds a professional educator license in the state of Illinois.

Thus, IOHS may be considered an EI when a student is enrolled in its High School Graduation Course. However, the claimant did not begin the High School Graduation Course until April 20, 2016. At that time, the claimant received an education at least equivalent to public schools, the required subjects were taught, and the teacher was competent. Thus, the claimant was enrolled in a qualified EI as of April 20, 2016, when she began the High School Graduation Course.

We Cannot Verify that the Claimant Meets State Requirements for Full-Time Attendance.

The POMS instructs that a student must meet both federal and state standards for full-time attendance. See POMS RS 00205.300A. As stated above, federal standards require the claimant to be enrolled in a noncorrespondence course lasting at least 13 weeks and to be scheduled for attendance at least 20 hours per week (with certain exceptions). See 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300C.

On the SSA-1372-BK, the claimant asserted that she attended IOHS part-time from January 13, 2014 until March 23, 2016. The claimant indicated that she previously attended 20 hours of classes online per week through IOHS. The claimant also indicated on the SSA-1372-BK that from March 23, 2016 through May 2, 2016 (the date she completed the form), she was enrolled full time at IOHS. She stated that she was scheduled to attend IOHS 30 hours per week. Dr. L~ certified that the claimant’s statements were correct, and that the school’s course of study was at least 13 weeks in duration. If you find her and Dr. L~’s statements credible, the claimant appears to have met the minimum federal requirements for full-time attendance, because she was enrolled in a noncorrespondence course lasting at least 13 weeks and was scheduled for attendance at least 20 hours per week.

To meet the state standards for full time attendance, IOHS must consider the claimant to be a full-time student based on the school’s standards and practices for day students. See POMS RS 00205.300B. It appears that the claimant meets the state standards for full-time attendance as of April 2016 (when the school first qualified as an EI) through July 2016. On July 20, 2016, Dr. L~ completed a Notice of Cessation of Full-Time School Attendance. Dr. L~ indicated that the claimant ceased full-time attendance at Elmwood Park High School in May 2013. Dr. L~’s completion of this form in July 2016 could suggest that she may not have considered the claimant to be a full-time student at that time. Or, perhaps Dr. L~ was just trying to indicate when the claimant stopped attending her prior public school full-time. Because it is unclear when, if at all, Dr. L~ and IOHS considered the claimant to be a full-time student, we recommend that SSA further develop the issue of whether IOHS considers the claimant to be in full-time attendance after July 2016.

CONCLUSION

For the reasons discussed above, the claimant was attending an Educational Institution as of the time that she began the High School Graduation Course with IOHS on April XX, 2016. In addition, it appears that the claimant met the requirements for full-time attendance from April 2016 through July 2016, but additional development is probably required to determine if the claimant continued in that status, given Dr. L~’s rather confusing Notice of Cessation of Full-Time School Attendance.

Kathryn Caldwell

Regional Chief Counsel, Region V

By: Cristen Meadows

Assistant Regional Counsel

Magic Johnson Bridgescape Academy (Bridgescape) operates as an Alternative Learning Opportunity Program for secondary education in compliance with Illinois law, and it is, therefore, an educational institution (EI) for SSA purposes. This opinion applies to the Lawndale, Roseland, Humboldt park, and Englewood Bridgescape Chicagoland campuses. Because a program’s EI status depends on relevant state law, DO NOT apply this opinion to Bridgescape programs in other states.

The student must also meet Federal and State standards for full-time attendance and all other requirements for payment of benefits.

SUMMARY

You asked whether Magic Johnson Bridgescape Academy (“Bridgescape”) ^[5] based in the State of Illinois, may be considered an educational institution (EI) for purposes of awarding student benefits. For the reasons discussed below, we conclude that Bridgescape Chicago qualifies as an EI. 

BACKGROUND

Claimant B~ is seeking child’s insurance benefits due to her reported status as a full-time student at Bridgescape Chicago. 

The agency uses Form SSA-1372-BK as the primary means for determining whether a child is a full-time student at a qualifying educational institution. POMS RS 00205.735. The claimant submitted a SSA-1372-BK dated May xx, 2014, indicating that she was scheduled to attend Bridgescape Chicago (25 hours per week) for the 2014-2015 academic year; she also indicated that she expected to graduate in June 2015. The SSA 1372-BK was certified by Bridgescape principal T~ on May 14, 2014. T~ certified that the information the claimant had provided on the SSA 1372-BK was correct, and that the school’s course of study was at least 13 weeks in duration.

According to the Illinois State Board of Education, Bridgescape is recognized by the State of Illinois as a provider of school education for grades 9-12. ^[6]

DISCUSSION

The Social Security Act (Act) provides for the payment of child insurance benefits 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 student benefits, 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 she turns 19 years old, regardless of her educational status. See Section 202(d)(1)(F)(ii) of the Act.

“Elementary or secondary school” is defined as “a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.” Section 202(d)(7)(C)(i) of the Act; see also 20 C.F.R. § 404.367(a). The POMS refers to such a school as an “educational institution” (EI). See POMS RS 00205.200A. Under the POMS, it is generally assumed that American public schools are EIs, absent evidence to the contrary; a non-public school cannot be assumed to be an EI. See POMS RS 00205.250B. 

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.

Bridgescape Chicago is an Educational Institution

To be considered an educational institution for purposes of receiving child insurance benefits, a school must provide elementary or secondary school education as determined under the law of the state or other jurisdiction in which it is located. See Section 202(d)(7)(C)(i) of the Act; 20 C.F.R. § 404.367(a); POMS RS 00205.200A. Public schools are assumed to be EIs under POMS RS 00205.250, unless there is evidence to the contrary.

The Illinois School Code allows for the establishment of Alternative Learning Opportunity Programs by local school districts. 105 ILCS § 5/13B. Pursuant to § 13B-10 of the School Code, Alternative Learning Opportunity Programs “are intended to provide students at risk of academic failure with the education and support services needed to meet Illinois Learning Standards and to complete their education in an orderly, safe, and secure learning environment.” 105 ILCS § 5/13B-10. Additionally, all staff employed by an Alternative Learning Opportunity Program must be certified by the State of Illinois. 105 ILCS § 5/13B-65; 23 IL Admin. Code § 240.30(f).

According to its website, Bridgescape is a blended learning program for dropout prevention and recovery, with a primary goal of achieving a high school diploma. ^{[7] [8]} Finally, pursuant to 105 ILCS § 13B-45, an Alternative Learning Opportunities Program is required to provide students with a minimum of 174 days of actual attendance and 5 daily hours as required for a students at Illinois public schools. 105 ILCS §§ 5/13B-45, 5/10-19, 5/18-8.05(F). S~ confirmed that Bridgescape academic year calendar mirrors that of the Chicago Public School system. Both the Bridgescape website and S~ confirmed that the Bridgescape program includes 4 hours of daily classroom time. However, S~ advised that students are also required to complete a minimum of one hour of independent work daily in addition to the four hours of classroom time. This combination of 4 hours of classwork and 1 hour of independent work satisfies the daily attendance requirements of an Alternative Learning Opportunity Program under 105 ILCS § 5/13B-45.

Based on the foregoing, we conclude that Bridgescape qualifies as an EI pursuant to POMS RS 00205.250(B).  Information received from Bridgescape, the Illinois State Board of Education, as well as publicly available information, demonstrates that Bridgescape operates as an Alternative Learning Opportunity Program in compliance with Illinois law, and accordingly, that it meets the requirements of an EI for purposes of awarding child insurance benefits. ^[9]

CONCLUSION

For the reasons discussed above, Bridgescape Chicago qualifies as an Educational Institution, as sufficient evidence indicates that it is an institution that provides an education “as determined under the law of the State” of Illinois. In addition, the claimant meets the requirements for full-time attendance.

Sincerely,

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Tiffani Jake

Assistant Regional Counsel

MacNeal School (MacNeal), located in Illinois, provides private elementary and secondary special education. The education is consistent with Illinois law, and MacNeal is, therefore, an educational institution for SSA purposes. The student must also meet Federal and State attendance requirements.

SUMMARY

You asked whether MacNeal School, based in the State of Illinois, may be considered an educational institution (EI) for purposes of awarding student benefits. For the reasons discussed below, we conclude that MacNeal School qualifies as an EI. 

BACKGROUND

Claimant J~ is seeking child’s insurance benefits due to his reported status as a full-time student at MacNeal School. 

The agency uses Form SSA-1372-BK as the primary means for determining whether a child is a full-time student at a qualifying educational institution. POMS RS 00205.735. The claimant submitted a SSA-1372-BK dated July xx, 2014, indicating that he was scheduled to attend MacNeal School (32.5 hours per week) for the 2014-2015 academic year; he also indicated that he expected to graduate in June 2016.   The SSA 1372-BK was certified by the MacNeal School social worker on July xx, 2014. The MacNeal School social worker certified that the information the claimant had provided on the SSA 1372-BK was correct, and that the school’s course of study was at least 13 weeks in duration.

According to the Illinois State Board of Education (“ISBE”), MacNeal School is recognized by the State of Illinois as a provider of private elementary and secondary special education. ^[10]

DISCUSSION

The Social Security Act (Act) provides for the payment of child insurance benefits 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 student benefits, 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 she turns 19 years old, regardless of her educational status. See Section 202(d)(1)(F)(ii) of the Act.

“Elementary or secondary school” is defined as “a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.” Section 202(d)(7)(C)(i) of the Act; see also 20 C.F.R. § 404.367(a). The POMS refers to such a school as an “educational institution” (EI).  See POMS RS 00205.200A. Under the POMS, it is generally assumed that American public schools are EIs, absent evidence to the contrary; a non-public school cannot be assumed to be an EI. See POMS RS 00205.250B. 

In order to count as a qualifying educational institution for purposes of awarding Child Insurance Benefits, the institution must provide a secondary education “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 POMS RS 00205.200(A).

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.

MacNeal School is an Educational Institution

To be considered an educational institution for purposes of receiving child insurance benefits, a school must provide elementary or secondary school education as determined under the law of the state or other jurisdiction in which it is located. See Section 202(d)(7)(C)(i) of the Act; 20 C.F.R. § 404.367(a); POMS RS 00205.200A. Public schools are assumed to be EIs under POMS RS 00205.250, unless there is evidence to the contrary.

According to the Illinois School Code, the Illinois General Assembly recognizes that non-public schools or special education facilities provide an important service in the educational system in Illinois. 105 ILCS § 5/14-7.02. Thus, the Illinois School Code allows for placement of public school students in a nonpublic special education facilities, as appropriate. 105 ILCS § 5/14-7.02; 23 IL Admin Code § 226.330; see also 20 U.S.C. Ch. 33. In such situations, educational costs, including transportation, are paid by the public school district.

The MacNeal School Academic Director advised that approximately 50 Illinois public school districts refer public school students to MacNeal School for special education services. Referred students attend MacNeal School at no cost to them; rather, educational costs are paid by the referring public school district. An ISBE representative confirmed that MacNeal School receives public funds as a State provider of educational services.

Other factors likewise support that MacNeal School provides educational services consistent with Illinois law. As noted above, MacNeal School is recognized by the ISBE, and is included in the state’s Directory of Educational Entities. The MacNeal School Academic Director confirmed that all MacNeal School teachers are state-licensed and certified. 105 ILCS § 5/13B-65; 23 IL Admin. Code § 240.30(f). Further, MacNeal School’s curriculum is based on state learning standards for each grade level, ^[11] and students earn academic credit towards graduation with a traditional Illinois high school diploma. (105 ILCS § 5/13B-45). According to the MacNeal School Academic Director, MacNeal School follows the ISBE academic calendar, and requires 1,950 minutes of school per week, consistent with Illinois attendance standards.105 ILCS §§ 5/13B-45, 5/10-19, 5/18-8.05(F).

Based on the foregoing, we conclude that MacNeal School qualifies as an EI pursuant to POMS RS 00205.250(B).   Though not a public school, MacNeal School clearly works in conjunction with the ISBE and participating public school districts to provide elementary and secondary education to eligible residents. Information received from MacNeal School, the ISBE, as well as publicly available information, demonstrates that MacNeal School operates as private special education facility in compliance with Illinois law, and accordingly, that it meets the requirements of an EI for purposes of awarding child insurance benefits. ^[12]

CONCLUSION

For the reasons discussed above, MacNeal School qualifies as an Educational Institution, as sufficient evidence indicates that it is an institution that provides an education “as determined under the law of the State” of Illinois.

Sincerely,

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Tiffani Jake

Assistant Regional Counsel

The New Connections Academy is a private therapeutic day school and qualifies as an alternative learning opportunities program for students with Autistic Spectrum Disorders, ranging from Asperger’s Disorder and High Functioning Autism, under Illinois law as follows:

• •

  Alternative learning opportunities programs “are intended to provide students at risk of academic failure with the education and support services needed to meet Illinois Learning Standards and to complete their education in an orderly, safe, and secure learning environment.

• •

  Under the Illinois law alternative learning opportunity programs may include support services and programs to develop, enhance, or extend the transition for students transferring back to the regular school program.

• •

  A school district may contract with other entities, including non-profit or for-profit education providers to establish alternative learning opportunities programs within the public school system.

• •

  In compliance with Illinois law, the school must offer a curriculum (branches of education taught to children in public schools) parallel to the local school district and operations of a regular school year and school day.

• •

  The school district develops the student’s IEP to meet the student’s needs and graduation requirement and places the student in the alternative learning opportunities program.

• •

  The students’ records go back to the school district.

• •

  All staff employed by an alternative learning opportunities program must be certified by the State of Illinois.

QUESTION PRESENTED

This memorandum is in response to your request to determine whether New Connections Academy (Connections) is an educational institution (EI) under Illinois state law for the purpose of awarding Student’s Benefits. ^[13] We also considered whether claimant, A~, was a full-time student, a requirement for Student’s Benefits. As explained below, we conclude that Connections is an EI for purposes of awarding Student’s Benefits.

BACKGROUND

A child can obtain Child Insurance Benefits if she is between 18 and 19 years old and is a full-time secondary school student at a qualifying educational institution (EI). 42 U.S.C. §§ 402(d)(1)(B), (d)(7)(C)(i). A~ seeks Student’s Benefits and asserts that Connections is a qualifying EI.

The agency uses form SSA-1372 BK (Student’s Statement Regarding School Attendance) as the primary means for determining whether a child is a full-time student at a qualifying EI. POMS RS 00205.735. A~ submitted form SSA-1372 BK to the Woodridge, Illinois Field Office listing Connections as the EI and indicated that it is a “therapeutic day” type of school. A~ stated that he is scheduled to attend forty hours a week and expects to graduate in June 2014. The form was certified by Christopher, a teacher at Connections Christopher indicated that the information provided by A~ was correct, that the school’s course of study is at least 13 weeks duration, and that the school operates on a yearly basis.

In July 2013, claims representative J~ from the Woodridge, IL Field Office contacted Tom, Principal for New Connections Academy. According to Tom, Connections is a private school approved by the Illinois State Board of Education. Connections enrolls students with Autistic Spectrum Disorders, ranging from Asperger’s Disorder and High Functioning Autism. See http://www.newconnectionsacademy.net/ (Last visited October 31, 2013). Students are referred to Connections by their own school districts. There is a contract between the school district and Connections, whereby the school district pays the tuition and provides transportation for the students.

The goal of Connections is to get the students back to school in their own school district. According to Tom and the Connections website, each student has an Individual Education Plan (IEP) developed by the placing school district. See http://www.newconnectionsacademy.net (Last visited October 31, 2013). Students may attend Connections until the day before they turn twenty-two, but usually return to their regular school district by then. The students’ school records are also sent back to their school district.

The high school curriculum at Connections parallels the basic courses of the local high school districts, including math and history, and also includes counseling and therapy classes. All staff meets or exceeds Illinois certification requirements. http://www.newconnectionsacademy.net/

(Last visited October 31, 2013). The school year at Connections runs basically the same as the regular school district year from August to May. The students attend school 5 days a week, Monday through Wednesday and Friday from 8:45am to 2:45pm, and Thursday from 8:45am to 1:45pm. Id. Connections also operates a 6 week summer program, which all students attend.

DISCUSSION

Section 202(d) of the Social Security Act provides that a child of an individual entitled to old age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, is entitled to child’s insurance benefits (CIB) under certain circumstances. See 42 U.S.C. § 402 (d)(1). The requirements for CIB eligibility for a non-disabled child is that the child must be unmarried and either under the age of 18 or a full-time elementary or secondary student and under the age 19. 42 U.S.C. § 402(d)(1)(B). To be entitled to CIB, a non-disabled 18 year-old claimant must attend a school full-time at a qualifying educational institution (EI). 42 U.S.C. § 402(d)(7)(C)(i); see POMS RS 0205.200(A). The Social Security Act further specifies that in order to qualify as an EI, a secondary school must provide a secondary education “as determined under the law of the State or other jurisdiction in which it is located.” Id. A public high school is assumed to be a qualifying EI unless there is evidence to the contrary. POMS RS 00205.250(B).

A. Private School

To determine whether Connections qualifies as an EI, we first considered whether Connections qualifies as a private school in compliance with Illinois law. Illinois’ compulsory attendance law requires whoever has custody or control of a child between the ages of 7 and 17 years to cause that child to attend a public school in the district where the child resides. 105 ILCS § 5/26-1 (2009). A child is not required to attend public schools if the child attends “a private school or parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language.” 105 ILCS § 5/26-1(1) (2009). Illinois courts have interpreted “private school” to include home schools “where the teacher is competent, the required subjects are taught, and the child receives an education at least equivalent to public schooling.” See People v. Harrell, 180 N.E. 2d 889, 890 (Ill. App. Ct. 1962), citing People v. Levisen, 90 N.E.2d 213 (1950). Based on Illinois precedent, the issue in determining whether Connections qualifies as a private school under Illinois law is whether students at Connections receive an education at least equal to public schooling, i.e., the students are taught the branches of education taught to children in public schools. Id.; 105 ILCS § 5/26-1(1). ^[14]

We believe that students at Connections receive an education at least equivalent to public schooling, and therefore Connections qualifies as a private school under Illinois law. See H~, 180 N.E. 2d 891; see also 105 ILCS § 5/26-1(1). According to Principal Tom and the school’s website, Connections is a private school approved by the Illinois State Board of Education. Students are sent to Connections by their school districts with the goal of the students returning to their school districts after attending Connections. The fact that Connections is approved by the State Board and that students are referred there by their own schools further bolsters its status as a private school under Illinois law. The students’ tuition and transportation are funded by the local school district, which we believe they would not do unless Connections provides an education at least equal to the education provided by the school district. Notably, the students are taught a curriculum that parallels the basic courses of the local high school districts, and attend school 5 days a week, Monday through Friday normally from 8:45am to 2:45pm. The school also operates a normal school year from August through May. Furthermore, the teachers and other staff meet or exceed Illinois certification requirements. See http://www.newconnectionsacademy.net/ (Last visited on October 31, 2013). Based on the foregoing facts, we conclude that Connections is a private school complying with the educational requirements under Illinois law, and therefore Connections meets the definition of an EI for purposes of awarding Student’s Benefits.

B. Alternative Learning Opportunities Program

We also considered whether Connections is an “alternative learning opportunities program” under Illinois law to determine whether Connections qualifies as an EI. The Illinois School Code recognizes the establishment of “Alternative Learning Opportunities.” 105 ILCS § 5/13B. Pursuant to § 13B-10 of the School Code, alternative learning opportunities programs “are intended to provide students at risk of academic failure with the education and support services needed to meet Illinois Learning Standards and to complete their education in an orderly, safe, and secure learning environment.” 105 ILCS § 5/13B-10. Alternative learning opportunities programs may include support services “and programs to develop, enhance, or extend the transition for students transferring back to the regular school program.” 105 ILCS § 5/13B-20.5. A student with the intention of graduating high school may receive services from an alternative learning opportunities program up to the age of 21. 105 ILCS § 5/13B-15.10; 23 IL Admin. Code § 240.20(l).

A school district may contract with other entities, including non-profit or for-profit education providers, to establish alternative learning opportunities programs within the public school system. 105 ILCS § 5/13B-20.10; see 23 IL Administrative Code § 240.10 (a school district may provide instructional services through a subcontractor if the entity is recognized by the State Board of Education). Section 5/13B-50.15 provides that a school district operating an alternative learning opportunities program approved by the State Board of Education is eligible to receive funding from the state, including transportation reimbursement and special education resources for students enrolled in the program. 105 ILCS § 5/13B-50.15; 23 IL Admin. Code § 240.90. A school district must grant academic credit to a student in an alternative learning opportunities program for work completed at an education provider that is recognized by the State Board if the student’s performance meets district standards. 105 ILCS § 5/13B-80. All staff employed by an alternative learning opportunities program must be certified by the State of Illinois. 105 ILCS § 5/13B-65; 23 IL Admin. Code § 240.30(f). Pursuant to § 13B-45, an alternative learning opportunities program is required to provide students at least the minimum 176 days of actual attendance and 5 daily hours as required for a students at Illinois public schools. 105 ILCS §§ 5/13B-45, 5/10-19, 5/18-8.05(F).

Although there is no explicit indication in the school’s website, it also appears that Connections is an alternative learning opportunities program under Illinois law. Connections is a private therapeutic day school serving students with Autistic Spectrum Disorders. The school provides support services due to the nature of the students’ needs to assist the students make progress in the general curriculum. See 105 ILCS §§ 5/13B-10, 5/13B-20.5. As discussed above, Connections is recognized by the Illinois State Board of Education and employs staff who meet Illinois certification requirements. See 105 ILCS § 5/13B-65. Connections also offers a curriculum paralleling the local school district and operates a regular school year calendar and school day. See 105 ILCS § 13B-45.

The goal of Connections is to transition the student back to their own school district. See 105 ILCS § 5/13B-20.5. The local school district is directly involved in the students’ enrollment and progress at Connections. For example, the local school district refers the students to Connections and also provides tuition and transportation for the students pursuant to a contract with the school district. See 105 ILCS § 5/13B-50.15; 23 IL Admin. Code § 240.90. The school district develops an IEP to meet individual student needs and graduation requirements, and the students’ school records go back to the school district, further indicating that it complies with educational requirements under Illinois law. See 105 ILCS § 5/13B-80 (stating that the school district must provide academic credit to an academic provider recognized by the State Board). Further, students at Connections may attend the school until age 21. See 105 ILCS § 5/13B-15.10. Accordingly, it appears that Connections qualifies as an alternative learning opportunities program under Illinois law, and therefore is an EI for purposes of awarding Student’s Benefits.

C. Full-time Student

Although you did not ask whether A~ was a full-time student, we considered whether A~ met the state and federal attendance requirements for purposes of receiving Student’s Benefits. Pursuant to the federal regulations, a student is a full-time elementary or secondary student if his/her attendance is at least 13 weeks in duration for 20 hours a week, unless certain exceptions apply. 20 C.F.R. § 404.367(b)-(c). Illinois state attendance requirements are met if a student is considered full-time based on the school’s standards and practices. POMS RS 000205.300(B). Illinois requires 5 hours of school work per day under the direct supervision of a teacher, in a school year which includes at least 176 days of actual student attendance for a total of 880 hours per year. 105 ILCS §§ 5/18-8.05(F), 5/10-19.

It appears A~ meets the full-time requirement under both federal and state law. A~’s SSA-1372-BK form indicates that he attends school 40 hours each week. Christopher certified that the information on the form was correct and that the school’s course of study was at least 13 weeks duration. Further, according to the website, the typical school week runs Monday through Friday for approximately 29 hours a week.

CONCLUSION

Connections is a private school that provides secondary education in compliance with Illinois law. Additionally, Connections appears to be an alternative learning opportunities program that complies with the educational requirements under Illinois law. Therefore, we conclude Connections is an EI for purposes of Student’s Benefits because it meets the educational requirements under Illinois law.

Donna L. Calvert

Regional Chief Counsel, Region V

By: Susana Ochoa

Assistant Regional Counsel

Crossroads Christian Academy (CCA) in Illinois provides education that meets all the requirements under Illinois' compulsory education law. Thus, CCA is an educational institution for SSA purposes.

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

CCA follows the ACE program, which mirrors public school curriculum closely. According to the information submitted to us for review, CCA classes are in session from 8:30 a.m. through 3:00 p.m. Monday through Friday; school begins at the end of August and runs through late May of the following year. At present, there are 22 students enrolled in CCA. The school accommodates students grades kindergarten through twelve. CCA's teachers have not been certified by the state. Colleges and the armed services in general have not objected to the fact that CCA is not certified or licensed by the state of Illinois.

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. The Illinois State Board of Education (the "Board") recommends that nonpublic schools register with and seek recognition from the Board. However, these schools are not actually required to be approved or accredited by the state. Although CCA abides by state regulations regarding the requisite number of hours and days that school must be in session per year and the academic subjects required to be taught, it has not registered with the Board or applied for "recognition" under the Board guidelines. Thus, in order to determine whether CCA is an EI, we must examine Illinois law.

Illinois' compulsory education statute provides that children are not required to attend public school if instead they attend "a private or parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language. . . ." Ill. Rev. Stat. ch. 122, § 26-1(1) (Smith-Hurd).

This provision has been interpreted by Illinois courts. In People v. Levinson, 404 Ill. 574, 90 N.E.2d 213 (1950), the Illinois Supreme Court found that the term "private school" includes an institution where instruction is imparted to the young, without regard to the number of persons being taught. The proper inquiry was whether there existed "an adequate course of instruction in the prescribed branches of learning." 90 N.E.2d at 215./

In People v. Harrell, 34 Ill. App. 2d 205, 180 N.E.2d 889 (1962), the court found that the Illinois compulsory education law had been construed liberally by other courts in the state, and even encompassed home schooling, so long as "the teacher [wa]s competent, the required subjects [we]re taught, and the child receive[d] an education at least equivalent to public schooling." 180 N.E.2d at 890.

In our opinion, the foregoing facts and the lenient way in which Illinois law has been interpreted establish that CCA provides education as defined under Illinois' compulsory education statute. That is, the state would not prosecute parents for sending their children to CCA in lieu of an approved or accredited school. Therefore, CCA constitutes an EI for SSA purposes.

Midway Christian Academy (MCA) in Chicago, Illinois provides education that meets all the requirements under Illinois' compulsory education law. Thus, MCA is an educational institution for SSA purposes.

By memorandum dated December xx, 1990, you asked us for an opinion on whether Midway Christian Academy (MCA) in Chicago, Illinois meets the definition of an "educational institution (EI)" set out in the Program Operations Manual System (POMS) at RS 00205.200. As you know, this response affects payment of benefits to a beneficiary. In our opinion, since Midway Christian Academy appears to meet all of the requirements under Illinois's compulsory education law, it is legally supportable for SSA to conclude that Midway Christian Academy provides an education as determined under State law. That is, MCA can therefore be recognized as an educational institution (EI) for SSA purposes.

The relevant POMS sections currently require that, as questions arise, you submit for a legal opinion each non-accredited non-public school for which you have no opinion from the State or the chief regional counsel that concludes that the school provides an approved education program. As you know, the relevant POMS sections are currently under review. This is our third opinion this year involving recognition of a non-accredited non-public school as an EI under Illinois law, including one involving home-based education. You thus have the relevant principles applicable in Illinois cases. Even before the relevant POMS sections are revised, you may therefore wish to ask your central office for authority to resolve cases arising in Illinois without an opinion from our office to the extent no unusual circumstances are present.

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.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, since Midway Christian Academy (MCA) maintains a program that is directed toward a specific educational objective, such as a diploma; hires individuals primarily to teach; and 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 and the State Department of Education cannot state that the school provides an approved elementary or secondary program, 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.

Several prior legal opinions address the specific issue presented here: whether an institution that has not been affirmatively accredited by the State in which it is located can qualify as a secondary school as defined in the Social Security Act and regulations. See, e.g., OGC-V (Michaelson) to RC-SSA-V, "Determining the Educational Institution (EI) Status of Liberty Christian School (LCS) in Anderson, Indiana," November 15, 1990; OGC-V (Michaelson) to RC-SSA-V (Moleski), "Determining the Educational Institution (EI) Status of Indiana Christian Academy (ICA)," August 24, 1990; OGC-V (Michaelson) to RC-SSA-V (Moleski), "Determining the Educational Institution (EI) Status of Temple Christian Academy (TCA)," August 24, 1990; OGC-V (Michaelson) to RC-SSA-V (Moleski), "Determining the Educational Institution (EI) Status of Christian Liberty Academy (ICA)," August 24, 1990; OGC-VIII (Luedemann and Blair) to RC-SSA-VIII, "Status of the Northwest Indian Bible School as an Educational Institution," January 26, 1990; and OGCSS (Woolford) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. Two of these opinions involved Illinois law. All of these opinions find that it is legally supportable to conclude that for SSA purposes an "educational institution (EI)" need not be affirmatively accredited or approved by the State. All of these opinions also conclude that if a non-public school appears to meet all of the requirements under the State's compulsory education law, the school can be found to provide education that is recognized under State law. It is therefore legally supportable for SSA to conclude that the school provides education as determined under State law and is thus an educational institution (EI) for SSA purposes. ^[15]

The Illinois compulsory education law is contained at I11.Rev.St. Ch. 122, Sec. 26-1 to 26-9. Under Sec. 26-1(1), children are not required to attend a public school if instead they attend "a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language." Such a private or parochial school need not be accredited or approved by the State.

The Illinois compulsory education law has been reviewed in Illinois courts. In People v. Levison, 404 Ill. 574, 90 N.E.2d 213 (1950), the court found that the term "private school" extends to a place where instruction is imparted to the young without regard to the number of persons being taught. The court evaluated whether or not there was "an adequate course of instruction in the prescribed branches of learning." 90 N.E.2d at 215. The L~ case involved home schooling.

The L~ case was subsequently described as follows in the case of People v. Harrell, 34 I11.App.2d 205, 180 N.E.2d 889 at 890 (1962):

Our Compulsory School Law, I11.Rev.St. Ch. 122, Sec. 26-1 to 26-9, has received a liberal construction in Illinois courts. The term "private school" as a lawful substitute for public schooling has been extended to include home schooling, where the teacher is competent, the required subjects are taught, and the child receives an education at least equivalent to public schooling.

Both the L~ and H~ courts found that parents who seek to establish compliance with the Illinois compulsory education law have the burden of establishing that education "at least commensurate with the standards prescribed for the public schools" is provided. L~, 90 N.E.2d at 215; H~, 180 N.E.2d at 891.

In a related context, an attorney from the Illinois State Board of Education advised a Regional Superintendent of Schools that while the State does not approve private schools, under L~, "the question ... is whether a pupil in a home school setting is receiving educational services in compliance with the compulsory attendance law." Illinois State Board of Education (R~, Legal Advisor) to Regional Superintendent of Schools (Martwick), January 6, 1988.

We applied these principles under Illinois law in our August 24, 1990 opinions involving Temple Christian Academy (TCA) and Christian Liberty Academy (CLA), supra. TCA involved a school, and CLA involved a formal home schooling program. In those opinions we concluded that, under the principles outlined in the prior OGC opinions and the relevant Illinois law, in our opinion it was legally supportable for SSA to conclude that both TCA and CLA provided education recognized under Illinois's compulsory education law. Therefore it was legally supportable for SSA to recognize TCA and CLA as educational institutions (EI).

Applying a similar analysis to Midway Christian Academy (MCA), in our opinion it is legally supportable for SSA to conclude that MCA provides education recognized under Illinois's compulsory education law. Therefore it is legally supportable for SSA to recognize MCA as an educational institution (EI).

Midway Christian Academy (MCA) is a non-public school. Accreditation of nonpublic schools in Illinois is voluntary and MCA has not applied for or received accreditation by the State of Illinois Department of Education. Similarly, the school is not registered with or recognized by Illinois, since it does not file an annual "Nonpublic School Registration, Enrollment and Staff Report" with the Illinois Office of Education. It does not appear that the school has been granted tax exempt status.

MCA maintains a program that is directed toward a diploma. MCA uses formal teaching materials from the Accelerated Christian Education (ACE) program based in Texas. There appears to be a full academic program that includes English, Social Studies, Math, Science, Spanish and physical education, and electives such as computer typing and art. There is daily oral instruction in Biology and daily devotional instruction. According to its Parent-Student Handbook, MCA graduation requirements correspond with the requirements of the State of Illinois. MCA hires individuals primarily to teach. All have high school diplomas and none are certified as teachers by the State, but all the teachers have been trained for a week in Bloomington, Illinois and passed a regional test establishing familiarity with the teaching materials. The school year appears to be comparable to that of the public schools. MCA states that some colleges and business schools have accepted credits from MCA.

In our opinion, under the principles outlined in the prior OGC opinions, the L~ case, and the interpretation of the L~ case by an Illinois State Board of Education attorney, the foregoing facts establish that MCA would be found to provide education recognized under Illinois's compulsory attendance law.

That is, as required by Illinois law, MCA is a private school where children receive an education at least equivalent to public schooling. In our opinion, the State would not prosecute parents for sending their children to MCA in lieu of an actually approved or accredited school. Under the OGC opinions, this provides adequate legal basis for SSA to conclude that MCA is an educational institution (EI) for SSA purposes.

ILLINOIS — Christian Liberty Academy (CLA) in Illinois provides education that meets all the requirements under Illinois' compulsory education law. Thus, CLA is an educational institution for SSA purposes.

Home education that meets certain requirements may satisfy the requirements of Illinois' compulsory education law. Thus, education that is recognized under State law is provided and SSA can find that a home schooling situation in Illinois may meet the requirements for entitlement to Social Security student benefits. (Educational Institution (CLA) — CCV [Weinstein] to RC, Chicago,

By memorandum dated March xx, 1990, you asked us for an opinion on whether Christian Liberty Academy (CLA) meets the definition of an "educational institution (EI)" set out in the Program Operations Manual System (POMS) at RS 00205.200. As you know, this response affects payment of benefits to a beneficiary. In our opinion, since Christian Liberty Academy appears to meet all of the requirements under Illinois's compulsory education law, it is legally supportable for SSA to conclude that Christian Liberty Academy provides an education as determined under State law. That is, CLA can therefore be recognized as an educational institution (EI) for SSA purposes. ^[16]

You may wish to ask your central office to add additional guidance to the relevant POMS sections consistent with our advice. We will be asking the central office of OGC for similar clarification of the POMS sections.

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.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. The requirements outlined in the POMS section for a school include that the school is directed towards a specific educational objective, such as a diploma; hires individuals primarily to teach; and uses formal teaching materials and facilities.

Here, CLA maintains a program that is directed toward a diploma, hires individuals primarily to teach, and uses formal teaching materials. However, in addition to its main campus in Arlington Heights, Illinois, CLA provides curriculum and other resources, with systematic supervision, testing, and recordkeeping, to numerous students nationwide who are enrolled on an "extension" or "satellite" basis. That is, CLA assists parents or others in the provision of home or church education. Your inquiry involves a beneficiary who attends school at home rather than at the main campus, and who appears to be taught by parents rather than by individuals hired primarily to teach, although "school coordinators" make periodic visits. We assume that community facilities are available and are used to supplement the home activities where necessary.

The POMS section does not direct that the question of whether or not an institution is a school should be sent to the chief regional counsel if the answer is not clear. In our opinion, however, there is no reason SSA should not seek legal advice in resolving this question. Once SSA determines that an institution is a school, POMS RS 000205.250 B.2 next 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 and the State Department of Education cannot state that the school provides an approved elementary or secondary program, 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. The answer to the first question of whether or not an institution is a school is, in many cases, inextricably linked to the subsequent question of whether or not education as determined under State law is provided. State law governing whether or not education is provided often also raises and answers the question of whether or not there is a school for State law purposes. We therefore think that the assistance of the chief regional counsel in resolving both questions under State law is appropriate.

Here, in our opinion CLA would be determined under Illinois State law both to be a school and to provide education that is recognized under Illinois State law. Although we have uncovered no OGC precedents that consider whether home education qualifies as an EI under State law for SSA purposes, there is no question that home education that meets certain requirements may satisfy the requirements of Illinois's compulsory education law. People v. Levison, 404 Ill. 574, 90 N.E.2d 213 (1950). Moreover, it is clear under OGC precedents that it is legally supportable for SSA to conclude that, if education is provided that appears to meet all of the requirements under the State's compulsory education law, education that is recognized under State law is provided and SSA can therefore find an educational institution (EI) for SSA purposes.

We have found two prior legal opinions that address the question of whether an institution that has not been affirmatively accredited by the State in which it is located can qualify as a secondary school as defined in the Social Security Act and regulations. OGC-VIII (Luedemann and Blair) to RC-SSA-VIII, "Status of the Northwest Indian Bible School as an Educational Institution," January 26, 1990; OGC-SS (Woolford) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. Both opinions conclude that it is legally supportable to conclude that for SSA purposes an "educational institution (EI)" need not be affirmatively accredited or approved by the State. Both opinions also conclude that if a nonpublic school appears to meet all of the requirements under the State's compulsory education law, the school can be found to provide education that is recognized under State law. It is therefore legally supportable for SSA to conclude that the school provides education as determined under State law and is thus an educational institution (EI) for SSA purposes. Although neither opinion arose in the context of home education, the reasoning of those opinions would also appear to be applicable to an organized course of home education that meets all of the requirements of the State's compulsory education law.

Both prior legal opinions are consistent with the POMS sections, described above, that express a strong presumption that a school is an EI if it is identified as one. Moreover, if the absence of accreditation always prevented finding an EI, there would be no reason for referring cases without State approval or accreditation to the chief counsel for a determination.

The May 1986 OGC opinion involved the Calvary Baptist School in Indiana. The author appeared to be familiar with the Region's prior policy statements involving Indiana. A December 1985 memorandum from the Regional Commissioner states that 'Christian schools in Indiana cannot meet the definition of an determines that they are schools which provide at least a secondary level of education... As long as the State of Indiana declines to make such a determination, the schools are not EI's." To similar effect, a January 1986 program circular states that "only those high schools that the State, or other jurisdiction, considers to be a high school will be EIs" and that "without State recognition as a school that provides an elementary or secondary level of education," a private religious high school will not be considered to be an educational institution (EI).

While recognizing that the nonpublic school was not approved or accredited by the Indiana Department of Education, the May 1986 OGC opinion refers in addition to the State's definition of a school for purposes of the State's compulsory attendance law. Two sections of that law are relevant. First, Ind.Code § 20-8.1-3-34 provides for criminal prosecution if a parent fails to send a child to a public school or otherwise provide "instruction equivalent to that given in the public schools." Second, Ind.Code § 20-8.1-3-17 requires all nonpublic schools to teach in the English language and to be in session for at least the number of days public schools are in session. The OGC opinion notes that "the mere fact that the State did not choose to prosecute the claimant or his parents" does not, in and of itself, justify finding that the school satisfies the requirements of Indiana's compulsory attendance laws. Rather, there must be an inquiry that looks at all the relevant facts of the case.

The May 1986 OGC opinion concluded that the facts established that the Calvary Baptist School provided instruction equivalent to that given in the public schools — even though the school never sought or received accreditation. Since the school therefore satisfied the requirements of Indiana's compulsory attendance law, the OGC opinion found that it is legally supportable for SSA to conclude that the school "provides a[n] ... education as determined under the law of that State and therefore can be recognized as an approved school" for SSA purposes. ^[17]

A similar analysis involving Montana's compulsory attendance law was performed in the January 26, 1990 opinion involving Northwest Bible School. Again, OGC concluded that the facts supported concluding that the school's instructional program would satisfy the State's requirements for a school under the compulsory attendance law — even though the school had never sought or received accreditation and the State had never actually addressed whether that particular school provided education that satisfied its compulsory attendance law. Therefore, SSA could properly conclude that the school was an EI.

The May 1986 OGC opinion suggested that under POMS it might be a serious defect if SSA failed to obtain an opinion from the State regarding a school's compliance with the State's compulsory education laws, but did not clearly resolve the question since there was arguably a State opinion present in that case. The more recent January 1990 OGC opinion, however, suggests that it is acceptable for SSA (or the chief regional counsel) to independently evaluate the school's compliance with the State's compulsory education law based on a factual analysis of the relevant factors under State law. In our opinion, it is appropriate for the chief regional counsel to make the determination under State law in the absence of a State opinion.

The Social Security Act and the regulations refer to "education ... as determined under the law of the State ... in which it is located." Section 202(d)(7)(C)(i) of the Act; 20 C.F.R. 404.367(a). There is no reference in the Act or the regulations to a determination actually made by the State itself. Where similar language is used elsewhere in the Act, SSA routinely asks for guidance from the chief regional counsel or refers to already-established precedents. The relevant POMS section, RS 00205.250 B.2, requires submittal of the case to the chief regional counsel for a determination under State law only after SSA has been unable to ascertain from the State if an approved education program is provided. Therefore, under POMS SSA should first seek a State opinion. If, however, a State opinion cannot be obtained, it is appropriate to seek a determination under State law from the chief regional counsel.

Applying such an analysis under Illinois's compulsory attendance law to Christian Liberty Academy (CLA), under the principles outlined in the prior OGC opinions, in our opinion it is legally supportable for SSA to conclude that CLA provides education recognized under Illinois's compulsory education law. Therefore it is legally supportable for SSA to recognize CLA as an educational institution (El).

The Illinois compulsory education law is contained at Ill.Rev. St. Ch. 122, Sec. 26-1 to 26-9. Under Sec. 26-1(1), children are not required to attend a public school if instead they attend "a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language." Such a private or parochial school need not be accredited or approved by the State.

The Illinois compulsory education law has been reviewed in Illinois courts. In People v. Levison, 404 Ill. 574, 90 N.E.2d 213 (1950), the court found that the term "private school" extends to a place where instruction is imparted to the young without regard to the number of persons being taught. The court evaluated whether or not there was "an adequate course of instruction in the prescribed branches of learning." 90 N.E.2d at 215. The L~ case involved home schooling.

The L~ case was subsequently described as follows in the case of People v. Harrell, 34 Ill.App.2d 205, 180 N.E.2d 889 at 890 (1962):

Our Compulsory School Law, Ill.Rev. St. Ch. 122, Sec. 26-1 to 26-9, has received a liberal construction in Illinois courts. The term "private school" as a lawful substitute for public schooling has been extended to include home schooling, where the teacher is competent, the required subjects are taught, and the child receives an education at least equivalent to public schooling.

Both the L~ and H~ courts found that parents who seek to establish compliance with the Illinois compulsory education law have the burden of establishing that education "at least commensurate with the standards prescribed for the public schools" is provided. L~, 90 N.E.2d at 215; H~, 180 N.E.2d at 891.

In a related context, an attorney from the Illinois State Board of Education advised a Regional Superintendent of Schools that while the State does not approve private schools, under L~, "the question ... is whether a pupil in a home school setting is receiving educational services in compliance with the compulsory attendance law." Illinois State Board of Education ~) to Regional Superintendent of Schools (~, January 6, 1988.

Christian Liberty Academy (CLA) is a nonpublic school. Accreditation of nonpublic schools in Illinois is voluntary and CLA has not applied for or received accreditation by the State of Illinois Department of Education.

The tax exempt status granted by the Illinois Department of Revenue is based on its status as "a religious and educational institution known as Church of Christian Liberty. Christian Liberty Academy does not have separate tax exempt status as an educational institution. Moreover, CLA will not complete any school attendance or school certification forms on behalf of any of its students.

CLA makes its home schooling program available to families for a fee. The program includes an organized curriculum and instructional materials, and regular visits from "school coordinators" that are supervised and monitored by CLA's central administration. CLA states that all its tutors are qualified and subject to administrative supervision and monitoring, but these tutors appear to be all parents without regard to educational background or qualification. CLA's home schooling program, like the program at its main campus, is directed toward a diploma. CLA provides systematic supervision, testing, and recordkeeping to its home students. The school year for home and other CLA students appears to be comparable to that of the public schools. It appears that some, but not all, universities accept credits from CLA.

In our opinion, under the principles outlined in the prior OGC opinions, the L~ case, and the interpretation of the L~ case by an Illinois State Board of Education attorney, the foregoing facts establish that CLA would be found to provide education recognized under Illinois's compulsory attendance law. That is, the State would not prosecute parents for sending their children to CLA in lieu of an actually approved or accredited school. ^[18] Under the OGC opinions, this provides adequate legal basis for SSA to conclude that CLA is an educational institution (EI) for SSA purposes.

You may wish to suggest to your central office that the relevant POMS sections be clarified to reflect the advice given in this opinion. Although the POMS suggests referring each case to the chief counsel for an opinion based on the individual facts presented, if there are considerations of general applicability that apply in each case it might be helpful to describe them in POMS. We are sending a copy of this memorandum to the central office of OGC with a similar recommendation that the relevant POMS sections be clarified.

You may also wish to consider issuing additional policy guidance regarding Illinois that reflects the advice given in this opinion.

Illinois — Temple Christian Academy (TCA) in Illinois provides education that meets all the requirements under Illinois' compulsory education law. Thus, TCA is an educational institution for SSA purposes. (Educational Institution (TCA) — CCV [Weinstein] to RC, Chicago, 08/24/90)

By memorandum dated March xx, 1990, you asked us for an opinion on whether Temple Christian Academy (TCA) meets the definition of an "educational institution (EI)" set out in the Program Operations Manual System (POMS) at RS 00205.200. As you know, this response affects payment of benefits to a beneficiary. In our opinion, since Temple Christian Academy appears to meet all of the requirements under Illinois's compulsory education law, it is legally supportable for SSA to conclude that Temple Christian Academy provides an education as determined under State law. That is, TCA can therefore be recognized as an educational institution (EI) for SSA purposes.

You may wish to ask your central office to add additional guidance to the relevant POMS sections consistent with our advice We will be asking the central office of OGC for similar clarification of the POMS sections. ^[19]

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 school

• •

  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, since Temple Christian Academy (TCA) maintains a program that is directed toward a specific educational objective, such as a diploma; hires individuals primarily to teach; and 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 and the State Department of Education cannot state that the school provides an approved elementary or secondary program, 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.

We have found two prior legal opinions that address the specific issue presented here: whether an institution that has not been affirmatively accredited by the State in which it is located can qualify as a secondary school as defined in the Social Security Act and regulations. OGC-VIII (Luedemann and Blair) to RC-SSA- VIII, "Status of the Northwest Indian Bible School as an Educational Institution," January 26, 1990; OGC-SS (Woolford) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. Both opinions conclude that it is legally supportable to conclude that for SSA purposes an "educational institution (EI)" need not be affirmatively accredited or approved by the State. Both opinions also conclude that if a nonpublic school appears to meet all of the requirements under the State's compulsory education law, the school can be found to provide education that is recognized under State law. It is therefore legally supportable for SSA to conclude that the school provides education as determined under State law and is thus an educational institution (EI) for SSA purposes.

These legal opinions are consistent with the POMS sections, described above, that express a strong presumption that a school is an EI if it is identified as one. Moreover, if the absence of accreditation always prevented finding an EI, there would be no reason for referring cases without State approval or accreditation to the chief counsel for a determination.

The May 1986 OGC opinion involved the Calvary Baptist School in Indiana. The author appeared to be familiar with the Region's prior policy statements involving Indiana. A December 1985 memorandum from the Regional Commissioner states that "Christian schools in Indiana cannot meet the definition of an educational institution (EI) unless the State or other local jurisdiction determines that they are schools which provide at least a secondary level of education... As long as the State of Indiana declines to make such a determination, the schools are not EI's." To similar effect, a January 1986 program circular states that "only those high schools that the State, or other jurisdiction, considers to be a high school will be EI's" and that "without State recognition as a school that provides an elementary or secondary level of education," a private religious high school will not be considered to be an educational institution (EI).

While recognizing that the nonpublic school was not approved or accredited by the Indiana Department of Education, the May 1986 OGC opinion refers in addition to the State's definition of a school for purposes of the State's compulsory attendance law. Two sections of that law are relevant. First, Ind.Code § 20-8.1-3-34 provides for criminal prosecution if a parent fails to send a child to a public school or otherwise provide "instruction equivalent to that given in the public schools." Second, Ind. Code § 20-8.1-3-17 requires all nonpublic schools to teach in the English language and to be in session for at least the number of days public schools are in session. The OGC opinion notes that "the mere fact that the State did not choose to prosecute the claimant or his parents" does not, in and of itself, justify finding that the school satisfies the requirements of Indiana's compulsory attendance laws. Rather, there must be an inquiry that looks at all the relevant facts of the case.

The May 1986 OGC opinion concluded that the facts established that the Calvary Baptist School provided instruction equivalent to that given in the public schools — even though the school never sought or received accreditation. Since the school therefore satisfied the requirements of Indiana's compulsory attendance law, the OGC opinion found that it is legally supportable for SSA to conclude that the school "provides a[n] ... education as determined under the law of that State and therefore can be recognized as an approved school" for SSA purposes.

A similar analysis involving Montana's compulsory attendance law was performed in the January 26, 1990 opinion involving Northwest Bible School. Again, OGC concluded that the facts supported concluding that the school's instructional program would satisfy the State's requirements for a school under the compulsory attendance law' — even though the school had never sought or received accreditation and the State had never actually addressed whether that particular school provided education that satisfied its compulsory attendance law. Therefore, SSA could properly conclude that the school was an EI.

The May 1986 OGC opinion suggested that under POMS it might be a serious defect if SSA failed to obtain an opinion from the State regarding a school's compliance with the State's compulsory education laws, but did not clearly resolve the question since there was arguably a State opinion present in that case. The more recent January 1990 OGC opinion, however, suggests that it is acceptable for SSA (or the chief regional counsel) to independently evaluate the school's compliance with the State's compulsory education law based on a factual analysis of the relevant factors under State law. In our opinion, it is appropriate for the chief regional counsel to make the determination under State law in the absence of a State opinion.

The Social Security Act and the regulations refer to "education ... as determined under the law of the State ... in which it is located." Section 202(d)(7)(C)(i) of the Act; 20 C.F.R. 404.367(a). There is no reference in the Act or the regulations to a determination actually made by the State itself. Where similar language is used elsewhere in the Act, SSA routinely asks for guidance from the chief regional counsel or refers to already-established precedents. The relevant POMS section, RS 00205.250 B.2, requires submittal of the case to the chief regional counsel for a determination under State law only after SSA has been unable to ascertain from the State if the school provides an approved education program. Therefore, under POMS SSA should first seek a State opinion. If, however, a State opinion cannot be obtained, it is appropriate to seek a determination under State law from the chief regional counsel.

Applying such an analysis under Illinois's compulsory attendance law to Temple Christian Academy (TCA), under the principles outlined in the prior OGC opinions, in our opinion it is legally supportable for SSA to conclude that TCA provides education recognized under Illinois's compulsory education law. Therefore it is legally supportable for SSA to recognize TCA as an educational institution (EI).

The Illinois compulsory education law is contained at Ill.Rev.St. Ch. 122, Sec. 26-1 to 26-9. Under Sec. 26-1(1), children are not required to attend a public school if instead they attend "a private or a parochial school where children are taught the branches of education taught to children of corresponding age and grade in the public schools, and where the instruction of the child in the branches of education is in the English language." Such a private or parochial school need not be accredited or approved by the State.

The Illinois compulsory education law has been reviewed in Illinois courts. In People v. Levison, 404 Ill. 574, 90 N.E.2d 213 (1950), the court found that the term "private school" extends to a place where instruction is imparted to the young without regard to the number of persons being taught. The court evaluated whether or not there was "an adequate course of instruction in the prescribed branches of learning." 90 N.E.2d at 215. The L~case involved home schooling.

The L~ case was subsequently described as fol. lows in the case of People v. Harrell, 34 Ill.App.2d 205, 180 N.E.2d 889 at 890 (1962):

Our Compulsory School Law, Ill.Rev. St. Ch. 122, Sec. 26-1 to 26-9, has received a liberal construction in Illinois courts. The term "private school" as a lawful substitute for public schooling has been extended to include home schooling, where the teacher is competent, the required subjects are taught, and the child receives an education at least equivalent to public schooling.

Both the L~ and H~ courts found that parents who seek to establish compliance with the Illinois compulsory education law have the burden of establishing that education "at least commensurate with the standards prescribed for the public schools" is provided. L~, 90 N..2d at 215; H~, 180 N.E.2d at 891.

In a related context, an attorney from the Illinois State Board of Education advised a Regional Superintendent of Schools that while the State does not approve private schools, under L~, "the question ... is whether a pupil in a home school setting is receiving educational services in compliance with the compulsory attendance law." Illinois State Board of Education (~ ) ~ to Regional Superintendent of Schools ( ~), January 6, 1988.

Temple Christian Academy (TCA) is a nonpublic school. Accreditation of nonpublic schools in Illinois is voluntary and TCA has not applied for or received accreditation by the State of Illinois Department of Education.

TCA maintains a program that is directed towards a diploma, hires individuals primarily to teach, and uses formal teaching materials. The school year appears to be comparable to that of the public schools. It appears that some, but not all, universities accept credits from TCA.

Significantly, the Illinois Department of Revenue has granted TCA tax exempt status on the basis that TCA is an educational institution.

In our opinion, under the principles outlined in the prior OGC opinions, the L~ case, and the interpretation of the L~ case by an Illinois State Board of Education attorney, the foregoing facts establish that TCA would be found to provide education recognized under Illinois's compulsory attendance law. That is, the State would not prosecute parents for sending their children to TCA in lieu of an actually approved or accredited school. Under the OGC opinions, this provides adequate legal basis for SSA to conclude that TCA is an educational institution (EI) for SSA purposes.

You may wish to suggest to your central office that the relevant POMS sections be clarified to reflect the advice given in this opinion. Although the POMS suggests referring each case to the chief counsel for an opinion based on the individual facts presented, if there are considerations of general applicability that apply in each case it might be helpful to describe them in POMS. We are sending a copy of this memorandum to the central office of OGC with a similar recommendation that the relevant POMS sections be clarified.

You may also wish to consider issuing additional policy guidance regarding Illinois that reflects the advice given in this opinion.