Indiana University High School (IUHS) is an online program offered through the Office of the Vice Provost for undergraduate education office at Indiana University. IUHS is accredited by the North Central Association Commission on Accreditation and School Improvement and provides education recognized under Indiana’s compulsory attendance law. IUHS qualifies as an educational institution for purposes of child insurance benefits.

QUESTION PRESENTED

You asked whether C~ (“Claimant”), was eligible to receive child insurance benefits (“CIB”) as a student from July 2015 through December 2015, her age 19 termination month. In order to answer this question, we must determine two issues: (1) whether Indiana University High School (“IUHS”), an online school, may be considered an educational institution (“EI”); and (2) whether Claimant was in full time attendance (“FTA”) during the relevant time period.

For the reasons discussed below, we conclude that IUHS qualifies as an EI. We also conclude that Claimant met the requirements for full-time attendance. Therefore, we conclude that it is legally supportable to find Claimant eligible for CIB as a student during the relevant time period.

BACKGROUND

Claimant seeks CIB based on her status as a full-time student at IUHS. IUHS is physically located in Bloomington, Indiana; Claimant resides in S~, California. With her application for benefits, Claimant submitted Form SSA-1372-BK dated July XX, 2015, indicating that she was scheduled to attend IUHS for 30-40 hours per week starting on July XX, 2015, and that she expected to graduate in January 2016. B~, Recorder at IUHS, certified the SSA-1372-BK on July XX, 2015.

Claimant also submitted a statement dated September XX, 2015. In her statement, Claimant explained that she was pursuing the College Prep diploma while taking five classes as a full-time student. She spent roughly 35-42 hours per week on class work at IUHS, and was in good academic standing.

Field office employee E~ completed a Report of Contact on December 2, 2015; he spoke with J~, Director of Student Services at IUHS. The Report indicated that IUHS does not have a written attendance policy, but that their online system allows the school to track when students log in and out of the system to access learning materials. According to J~, in order to be considered a full time student, a person would need to be enrolled in five classes per semester. At that pace, the student would graduate in four years. As of August 2015, Claimant was enrolled in five courses.

B~ spoke with the undersigned via telephone on August XX, 2016. B~ stated that IUHS is not a public a school. He went on to explain that IUHS does not receive any funding from Indiana. Rather, IUHS relies on tuition costs to cover expenses and remain operational. B~ also explained that IUHS does not have a formal “full time” classification system. Instead, IUHS only differentiates between those students on a diploma track and those who are not on a diploma track.

IUHS has an informative website where the undersigned gathered the information in the remaining paragraphs of this section unless otherwise noted. See Indiana University High School, https://iuhighschool.iu.edu/ (last visited Aug. 22, 2016). IUHS is an online program offered through the Office of the Vice Provost for undergraduate education office at Indiana University. IUHS charges a tuition rate of $157.35 per course and has a number of other various fees.

Students have the option to pursue three different diplomas: a General Education diploma, a College Prep diploma, and an Academic Honors diploma. Each diploma has slightly varied requirements but a student must complete 40 credits to earn a diploma from IUHS. Of those 40 credits, at least ten must be earned through IUHS, allowing a large number of credits to transfer from other institutions. Additionally, a one-credit course covers the same amount of material as a traditional high school semester course.

IUHS offers 78 high school level courses developed by licensed, certified teachers and evaluated by independent reviewers. The high school level courses are “based on approved curriculum for Indiana schools, substantially reflecting state Department of Education subject area standards.” IUHS also offers six advanced placement (“AP”) courses, which allow students to earn credits towards a college degree. The AP courses are written and taught by licensed teachers and are approved by the College Board. IUHS does not require exams in every course. However, if an exam is required then a student must have the exam proctored by an approved exam proctor.

IUHS does impose some timing requirements. IUHS offers “Cooperative Courses” and “Independent Study Courses” to provide students with options as to how quickly they wish to complete the courses. The semester-based Cooperative Courses are designed to be completed in 15 weeks. Self-paced Cooperative Courses and Independent Study Courses may be completed in as little as six weeks. All courses must be completed no longer than six months from the date a student registers for a class.

IUHS is not accredited by the Indiana Department of Education (“IDOE”) and is not included on the IDOE list of public schools for the 2015-2016 school year. See IDOE, Find School and Corporation Data Reports, http://www.doe.in.gov/accountability/find-school-and-corporation-data-reports (under “General School Information,” follow “2015-16 Indiana School Directory” hyperlink) (last updated September 2016). IUHS is, however, accredited by the North Central Association Commission on Accreditation and School Improvement (“NCA CASI”). G~, Director of Accreditation for the IDOE, spoke with the undersigned via telephone on August 12, 2016, about IUHS and NCA CASI. See IDOE, http://www.doe.in.gov/staff/accreditation/george-frampton (last visited Aug. 22, 2016). G~ was familiar with both IUHS and NCA CASI’s standards and reputation as a regional accrediting agency; he called IUHS “a very legitimate school.” A number of online school rankings echo this praise. Best College Reviews ranked IUHS as the sixth best online high school for 2016 and The Best Schools rated IUHS as the second best online high school diploma. See Best College Reviews, The 25 Best Online High Schools for 2016, http://www.bestcollegereviews.org/top/online-high-schools/ (last visited Aug. 22, 2016); see also The Best Schools, The 50 Best Online High School Diplomas, http://www.thebestschools.org/rankings/best-online-high-school-diploma-programs (last visited Aug. 22, 2016). Both of these online rankings cite IUHS’s accreditation status and high standards of education.

DISCUSSION

The Social Security Act (Act) provides for the payment of 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 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.

• •

  “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.” See POMS RS 00205.200A. Under the POMS, it is generally assumed that American public schools are EI’s, absent evidence to the contrary; a non-public school cannot be assumed to be an EI. See POMS RS 00205.250B. It does not matter if the school is online, so long as the school meets state law requirements. See POMS RS 00205.295.

• •

  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.

• •

  POMS RS 00205.295 sets forth agency policy with respect to online schools. It defines an online school as “one that offers Internet-based courses to students.” POMS RS 00205.295A. A child attending an online school may be a full-time student if: (1) the student meets the standards for full-time attendance as defined in RS 00205.300, and (2) the online school operates in accordance with the law of the state in which the online school is located. See POMS RS 00205.295B.

IUHS Qualifies as an Educational Institution

As noted above, to be considered an EI, 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. IUHS is based in Bloomington, Indiana. To determine whether IUHS qualifies as an EI, we must examine Indiana law.

IUHS is not a public school and therefore there is no presumption that it is an EI. See POMS RS 00205.250B. Several factors support the classification that IUHS is not a public school. IUHS is not accredited by the IDOE and is not included on the IDOE’s list of public schools for the 2015-2016 school year. Additionally, IUHS does not provide a free education. IUHS charges $157.35 in base tuition per course and other various fees. Further, IUHS itself does not receive any funding from the state and relies on tuition revenue to remain in operation. Thus, IUHS is not a public school and does not have a presumption for an EI.

However, a non-public school may still be considered an EI by the Agency in determining benefits. As the Regional Chief Counsel has previously found, it is legally supportable to conclude that, for SSA purposes, an EI need not be affirmatively accredited or affirmed by the State, and that if a non-public school meets all of the requirements of the State’s compulsory education law, the school can be found to provide an education that is recognized under State law. See, e.g., POMS PR 07905.017 Indiana, PR 12-002: Indiana – Determination As To Whether Tabernacle Christian School Is An Educational Institution (EI), October 5, 2011.

Indiana’s compulsory school attendance law is found at Indiana Code § 20-33-1 et seq. Several sections of this law are relevant for our analysis. First, Indiana Code § 20-33-2-4 requires all non-public schools to teach in English. Second, Indiana Code § 20-33-2-5 requires all non-public schools to be in session for at least the number of days public schools are in session. Third, Indiana Code § 20-33-2-20 requires non-public schools to maintain an “accurate daily record” of each student’s attendance. Finally, Indiana Code § 20-33-2-28 provides that a child who does not attend a public school must be provided with “instruction equivalent to that given in public schools.” Thus, IUHS may be considered an EI if it offers courses in English, provides at least as many instructional days as public schools, maintains attendance records, and provides instruction equivalent to that given in public schools.

First, Indiana Code § 20-33-2-4 is satisfied because IUHS offers classes and teaching materials in English.

Next, the requirement that IUHS be in session for at least the number of days public schools are in session appears to be satisfied. Indiana Code § 20-30-2-3 states that a school shall conduct at least 180 student instructional days. The nature of online schools allows students to access courses and materials at any time; the school does not need to open its doors to grant students access to instruction. This flexible nature of online schooling allows students to make any day an instructional day and the school may be in session every day of the year in the sense that each day some students may log on and use the materials. Thus, it is legally supportable for SSA to conclude that IUHS provides at least as many instructional days to students as public schools because of the online forum.

Next, it appears that IUHS satisfies the attendance records requirement by tracking the time students are logged in to the system. J~ Director of Student Services at IUHS, informed the Agency that IUHS’s online system allows the school to track when students log in and out of the system to access learning materials. Indiana Code § 20-33-2-20 does not specify any method of recordkeeping. We believe that IUHS can determine attendance in this manner and produce these records upon request and therefore satisfies this requirement.

Finally, we believe that IUHS provides instruction equivalent to that given in public schools:

• •

  IUHS maintains a program that is directed towards a diploma, and allows students to pursue one of three different diplomas. Each diploma has its own specific standards, but a student must accumulate at least 40 credits for any diploma. One credit at IUHS covers the same amount of material as a semester long course in an Indiana public school. Thus, to earn a diploma with 40 credits, a student must be enrolled in five courses a semester for four years, the typical amount of time to graduate from a public high school.

• •

  IUHS employs qualified teachers. As of a 2014 report, IUHS maintained a staff of 29 teachers. 28 of these teachers were licensed in Indiana; the remaining teacher was licensed in Florida. Many of these teachers also work at Indiana public schools in addition to part time work with IUHS.

• •

  IUHS is accredited by NCA CASI, which guarantees to independently review high standards of education.

• •

  IUHS has an impressive course catalogue from which students select classes. IUHS requires some basic courses for degrees, but allows for a number of electives as well. The nearly 80 high school level courses and six AP level courses combine for a robust course catalogue which likely equate to or surpass the curriculum provided at most public schools. Exams are not required for each class; however, when exams are given IUHS maintains strict procedures for proctoring exams to foster academic integrity. IUHS does not administer state standardized testing, but it is under no obligation to do so as a non-public school.

Thus, in our opinion, the foregoing facts establish that IUHS provides education recognized under Indiana’s compulsory attendance law. Accordingly, it is legally supportable for SSA to recognize IUHS as an EI.

Claimant Satisfied FTA Requirements

In addition to attending a qualifying EI, a student must meet both state and federal standards for full-time attendance. POMS RS 00205.300A. Federal regulations provide that a student attends full-time if her scheduled attendance is at least 20 hours per week in at least a 13-week course, barring certain exceptions. 20 C.F.R. §404.367(b), (c); see also POMS RS 00205.300C. On the SSA-1372-BK, Claimant stated that she was scheduled to attend IUHS for 30-40 hours per week during the relevant period. B~, Recorder at IUHS, certified that Claimant’s statements were correct, and that the school’s course of study was at least 13 weeks in duration.

State attendance requirements are met if a student is considered full-time based on the school’s standards and practices. POMS RS 00205.300B. B~ explained that IUHS does not have a formal “full time” classification system. IUHS only distinguishes between students on a diploma track and those who are not on a diploma track. While there is no formal or written requirement, B~ stated that a five-course load roughly equates to a full time enrollment by traditional standards. B~ also certified Claimant’s statements that she was in “full-time attendance” and attended school for 30-40 hours per week. A Report of Contact echoed B~’s statements. According to the Report, J~, Director of Student Services at IUHS, stated that a student enrolled in five classes per semester would be considered full time. Claimant was enrolled in five classes as of August 2015. Thus, we believe that Claimant satisfied FTA requirements under both federal and state standards.

CONCLUSION

For the reasons discussed above, we find that IUHS qualifies as an EI. Additionally, we find that Claimant satisfied both the federal and state attendance requirements for FTA. Therefore, we conclude that it is legally supportable to find that Claimant was eligible to receive CIB as a student during the relevant time period.

Kathryn Caldwell

Regional Chief Counsel

Region V, Chicago

By: Michael A. Gregory

Assistant Regional Counsel

The Tabernacle Christian School (Tabernacle), located in Martinsville, Indiana, provides elementary and secondary education in accordance with Indiana's compulsory attendance law. Tabernacle is, therefore, an educational institution for SSA purposes.

You have asked whether the Tabernacle Christian School located in Martinsville, Indiana, can be considered an educational institution (EI) for an 18-year-old Indiana resident (Claimant) for purposes of receipt of student benefits. Although it is not accredited by the State of Indiana, we have determined that the Tabernacle Christian School (Tabernacle) is an EI for SSA purposes.

Background

The Claimant, Anthony M. A~, has applied for students benefits. With his application, the Claimant submitted an SSA-1372 form stating that he was attending Tabernacle Christian School in Martinsville, Indiana, and was expected to graduate in May 2012. Claimant attended school 31 hours per week.

Kenny R~, the school’s administrator, completed the Certification by School Official regarding Claimant’s attendance at Tabernacle. Mr. R~ verified Claimant’s attendance at Tabernacle as well as the anticipated graduation date. He also verified that the school’s course of study is at least 13 weeks in duration and that the school operates on a quarterly/semester basis with reenrollment required. You have indicated that you spoke with Mr. R~ directly and that he stated that the school does follow the state public school educational curricula and standard testing guidelines; however, the school is not accredited by the state. According to Mr. R~, the school provides education for grades kindergarten through twelve. School hours are from 8:00 a.m. until 2:20 p.m., Monday through Friday. School lasts at least 13 weeks in duration and follows the same school calendar as the state’s public schools.

Dr. George F~, Director of School Accreditation for the Indiana Department of Education has indicated that Indiana has a compulsory school attendance law that requires students to be in school until age 18. Parents and students are in compliance with this statute even if they attend a non-accredited, private school.

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. See also 20 C.F.R. 404.367(a) (restating the statutory definition).

The Regional Chief Counsel has considered on various occasions whether a non-public institution which is located in Indiana that has not been affirmatively accredited by the State of Indiana can qualify as an EI as defined in the Social Security Act and regulations. See e.g., OGC-V (W~ and M~) to RC-SSA-V, “Determining the Educational Institution (EI) Status of Indiana Christian Academy (ICA),” August 24, 1990; see also POMS PR 07905.017 Indiana, PR 01-162: Determining the EI Status of Anderson Covenant Academy, Feb. 25, 1991. In these opinions, we have found that it is legally supportable to conclude that, for SSA purposes, an EI need not be affirmatively accredited or approved by the State. At the time these opinions were rendered, the applicable statute was Indiana Code section 20–8.1–3–17. Indiana legislature has since repealed Indiana Code chapter 20–8.1–3 in 2005, and the provisions relating to compulsory school attendance are now codified in Indiana Code chapter 20–33–2. If a non-public school meets 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.

Several sections of Indiana law are relevant. First, the Indiana compulsory education law, Indiana Code section 20-33-2-28, 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, Indiana Code sections 20-33-2-4 and 20-33-2-5 require 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 Indiana compulsory education law was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp. 1152 (D.C. Ind. 1985), aff’d. 798 F.2d 230 (7th Cir. 1986). There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives “instruction equivalent to that given in the public schools.” 614 F.Supp. at 1159.

Here, we believe that it is legally supportable for SSA to conclude that Tabernacle provides education recognized under Indiana’s compulsory education law. Tabernacle is a nonpublic school run by the Martinsville Baptist Tabernacle Church. Accreditation of nonpublic schools in Indiana is voluntary and, to our knowledge, Tabernacle has not applied for or received accreditation by the State of Indiana Department of Education. Tabernacle is a member of the Indiana Association of Christian Schools and the American Association of Christian Schools. There appears to be a full academic program which, according to Tabernacle, falls in line with the Indiana State guidelines. Its curriculum is composed of A B~, Bob J. and S~. Tabernacle offers of 150 courses and have entered into an agreement with a local college to provide dual credit courses. High school students are required to exceed the Indiana Core 40 requirements. See Ind. Code 20-30-10-1 (instructing the Indiana Department of Education with developing a “Core 40” college preparation curriculum). In any event, Indiana law provides that a nonpublic, non-accredited school is not bound to the requirements of curriculum which are set forth for Indiana public schools. Ind. Code 20-33-2-12.

Tabernacle provides education for grades kindergarten through twelve. School hours are from 8:00 a.m. until 2:20 p.m., Monday through Friday. School lasts at least 13 weeks and follows the same school calendar as the state’s public schools. See Ind. Code 20-33-2-5 (in order to comply with compulsory school attendance laws, a student must attend school each year for the number of days public schools are in session).

Tabernacle students are also required to participate in standardized testing. Tabernacle requires its students, kindergarten through twelfth grade, to take the Standford Achievement Test, the PSAT (as Sophomores and Juniors), and the Armed Services Vocational Aptitude Battery (ASVAB) test (as Sophomores, Juniors and Seniors). The requirement of Tabernacle students to participate in this type of nationally recognized testing suggests that the education offered by Tabernacle is equivalent to that offered by the Indiana public school system.

In our opinion, under the principles outlined in the prior OGC opinions and the M~ case, the foregoing facts establish that Tabernacle would be found to provide education recognized under Indiana’s compulsory attendance law. That is, school is taught in the English language and is in session for at least the number of days public schools are in session, and instruction is equivalent to that given in the public schools appears to be provided. Accordingly, it is legally supportable for SSA to recognize Tabernacle as an EI.

Grace M. K~

Acting Regional Chief Counsel, Region V

By: Anne M~

Assistant Regional Counsel

Anderson Covenant Academy (ACA) in Anderson, Indiana, provides education that meets all the requirements under Indiana's compulsory attendance law. Thus, ACA is an educational institution for SSA purposes.

By memorandum dated February 19, 1991, you asked us for an opinion on whether Anderson Covenant Academy (ACA) in Anderson, Indiana 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 Anderson Covenant Academy appears to meet all of the requirements under Indiana's compulsory education law, it is legally supportable for SSA to conclude that Anderson Covenant Academy provides an education as determined under State law. That is, ACA 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 fifth recent opinion involving recognition of a non-accredited non-public school as an EI under Indiana law. The issue was also previously considered in a May 1986 OGC legal opinion. You thus have the relevant principles applicable in Indiana cases. Even before the relevant POM sections are revised, you may therefore wish to ask your central office for authority to resolve cases arising in Indiana 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 Anderson Covenant Academy (ACA) maintains a program that is directed toward a specific educational objective, such as a diploma; appears to hire 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 (M~) to Acting RC-SSA-V (B~), "Determining the Educational Institution (EI) Status of Berean Christian Academy (BCA) in West Baden, Indiana," December 19, 1990; QGC-V (M~) to Acting RC-SSA-V (B~), "Determining the Educational Institution (EI) Status of Lighthouse Christian Academy (LCA) in Washington, Indiana," December 14, 1990; OGC-V (M~) to Acting RC-SSA-V (B~), "Determining the Educational Institution (EI) Status of Midway Christian Academy (MCA) in Chicago, Illinois," December 14, 1990; OGC-V (M~) to RC-SSA-V, "Determining the Educational Institution (EI) Status of Liberty Christian School (LCS) in Anderson, Indiana," November 15, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Indiana Christian Academy (ICA)," August 24, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Temple Christian Academy (TCA)," August 24, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Christian Liberty Academy (CLA)," August 24, 1990; OGC-VIII (L~ and B~) to RC-SSA-VIII, "Status of the Northwest Indian Bible School as an Educational Institution," January 26, 1990; and OGC-SS (W~) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. Five of these opinions involved Indiana 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. ^[1]

Two sections of Indiana's law are relevant. First, the Indiana compulsory education law, 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 non-public 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 Indiana compulsory education law, Ind.Code § 20-8.1-3-34, was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp 1152 (D.C. Ind. 1985), aff'd. 798 F.2d 230 (7th Cir. 1986). There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives "instruction equivalent to that given in the public schools." 614 F.Supp. at 1159. In our opinion, for SSA purposes it is legally supportable to conclude that a school that satisfies the requirements of the State's compulsory education law provides education recognized by the State since the State would not prosecute parents for sending their children to such a school in lieu of an actually approved or accredited school. The M~ case involved an organized home study program.

We applied these principles under Indiana law in our December 19, 1990 opinion involving Berean Christian Academy (BCA), supra, our December 14, 1990 opinion involving Lighthouse Christian Academy (LCA), supra, our November 15, 1990 opinion involving Liberty Christian School (LCS), supra, and our August 24, 1990 opinion involving Indiana Christian Academy (ICA), supra. The May 1986 OGC opinion, supra, applied these principles under Indiana law to Calvary Baptist School. Our four recent opinions concluded that, under the principles outlined in the prior OGC opinions and the relevant Indiana law, it was legally supportable for SSA to conclude that BCA, LCA, LCS and ICA provided education recognized under Indiana's compulsory education law. Therefore it was legally supportable for SSA to recognize BCA, LCA, LCS and ICA as educational institutions (EIs). The May 1986 OGC opinion reached a similar conclusion with regard to Calvary Baptist School. That 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.

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

Anderson Covenant Academy (ACA) is a non-public school. Accreditation of non-public schools in Indiana is voluntary and ACA has not applied for or received accreditation by the State of Indiana Department of Education. We have no information regarding whether nor not the school has been granted tax-exempt status. It does appear that the school reports the number of enrolled children to the Indiana Department of Education.

ACA maintains a program that is directed toward a diploma. ACA uses formal teaching materials from the Accelerated Christian Education (ACE) program based in Texas. ACA submitted printed promotional materials that show that students using the ACE materials perform as well or better than other students on standardized tests and in higher education. There appears to be a full academic program, with courses comparable to those taught in the public schools as well as devotions and chapel sessions. ACA offers both a College and a General curriculum, with numerous electives. It appears that ACA hires individuals primarily to teach. We have no information regarding the educational credentials, if any, of the ACA teachers. However, under the ACE program (which we have reviewed in other Indiana cases, including Liberty Christian School, supra, and Lighthouse Christian Academy, supra) teachers receive training to became familiar with the teaching materials and are eligible to participate in year-round training at regularly-scheduled educators' conventions. The school year appears to be comparable to that of the public schools and ACA follows the State attendance laws. We do not know if ACA students have gone on to higher education.

We also do not know if ACA is listed in the Indiana School Directory, distributed by the Department of Education. However, the document is frequently out of date, and at least three schools previously considered by OGC, Berean Christian Academy, supra, Lighthouse Christian Academy, supra, and the Calvary Baptist School, supra, were also not listed in the Indiana School Directory.

In our opinion, under the principles outlined in the prior OGC opinions and the M~ case, the foregoing facts establish that ACA would be found to provide education recognized under Indiana's compulsory attendance law. That is, school is taught in the English language and is in session for at least the number of days public schools are in session, Ind.Code § 20-8.1-3-17, and "instruction equivalent to that given in the public schools" appears to be provided, Ind.Code § 20-8.1-3-34 and M~, supra. Under the OGC opinions, this provides adequate legal basis for concluding that ACA is an educational Institution (EI) for SSA purposes.

Victory Christian Academy (VCA) in Kokomo, Indiana provides education that meets all the requirements under Indiana's compulsory education law. Thus, VCA is an educational institution for SSA purposes.

By memorandum dated October 9, 1991, your office asked us for an opinion on whether Victory Christian Academy (VCA) in Kokomo, Indiana 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 Victory Christian Academy appears to meet all of the requirements under Indiana's compulsory education law, it is legally supportable for SSA to conclude that Victory Christian Academy provides an education as determined under State law. That is, VCA 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, although you have the relevant principles applicable in Indiana cases in several opinions written by our office since August 1990. Even before the relevant POMS sections are revised, you may therefore wish to ask your central office for authority to resolve cases arising in Indiana 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 Victory Christian Academy (VCA) maintains a program that is directed toward a specific educational objective, such as a diploma; states that it 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.

Prior legal opinions, including several that involved Indiana law, have addressed 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.^[2] 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 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. ^[3]

Two sections of Indiana's law are relevant. First, the Indiana compulsory education law, 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 non-public 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 Indiana compulsory education law, Ind.Code § 20-8.1-3-34, was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp 1152 (D.C.Ind. 1985), aff'd. 798 F.2d 230 (7th Cir. 1986).

There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives "instruction equivalent to that given in the public schools." 614 F.Supp. at 1159. In our opinion, for SSA purposes it is legally supportable to conclude that a school that satisfies the requirements of the State's compulsory education law provides education recognized by the State since the State would not prosecute parents for sending their children to such a school in lieu of an actually approved or accredited school. The M~ case involved an organized home study program.

We applied these principles under Indiana law in several opinions sent to your office since August 1990. ^[4] These opinions concluded that, under the principles outlined in prior OGC opinions and the relevant Indiana law, it was legally supportable for SSA to conclude that individual non-accredited non-public schools provided education recognized under Indiana's compulsory education law. Therefore it was legally supportable for SSA to recognize those particular schools as educational institutions (EIs). A May 1986 OGC opinion reached a similar conclusion with regard to Calvary Baptist School. OGC-SS (W~) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. That 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.

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

Victory Christian Academy (VCA) is a non-public school. Accreditation of nonpublic schools in Indiana is voluntary and VCA has not applied for or received accreditation by the State of Indiana Department of Education. We have no information regarding whether nor not the school has been granted tax exempt status. We also do not know if the school reports the number of enrolled children to the Indiana Department of Education.

VCA maintains a program that is directed toward a diploma at the end of twelfth grade. VCA states that it is seeking accreditation through the Accelerated Christian Education (ACE) program based in Denton, Texas. We therefore assume that VCA uses the formal ACE teaching materials. Like other Indiana schools we have previously reviewed, VCA submitted printed promotional materials that show that students using the ACE materials perform as well or better than other students on standardized tests and in higher education. See, e.g., Anderson Covenant Academy, supra; and Lighthouse Christian Academy, supra.

There appears to be a full academic program, with courses comparable to those taught in the public schools as well as in Christian Education. VCA teaches Math, English, Social Studies (History and Geography), Science, Word Building and electives. VCA reports that it hires individuals primarily to teach, and although they do not hold State teaching certificates all have at least a bachelors degree. Under the ACE program which we have reviewed in other Indiana cases (e.g., Anderson Covenant Academy, supra, and Lighthouse Christian Academy, supra) teachers receive training to become familiar with the teaching materials and are eligible to participate in year-round training at regularly-scheduled educators' conventions. Here the VCA school calendar reflects there is no school on October 10 and 11 because of the ACE Convention. The school year of VCA appears to be comparable to that of the public schools. The school calendar runs from August 19, 1991 through June 5, 1992, and the school day goes from 8:30 a.m. through 3:30 p.m. We do not know if VCA follows the State attendance laws. We also do not know if VCA students have gone on to higher education, but we know that other graduates of ACE programs elsewhere have.

We also do not know if VCA is listed in the Indiana School Directory, distributed by the Department of Education. However, the document is frequently out of date, and at least three schools previously considered by OGC, Berean Christian Academy, supra, Lighthouse Christian Academy, supra, and the Calvary Baptist School, supra, were also not listed in the Indiana School Directory.

In our opinion, under the principles outlined in the prior OGC opinions and the M~ case, the foregoing facts establish that VCA would be found to provide education recognized under Indiana's compulsory attendance law. That is, school is taught in the English language and is in session for at least the number of days public schools are in session, Ind.Code § 20-8.1-3-17, and "instruction equivalent to that given in the public schools" appears to be provided, Ind.Code § 20-8.1-3-34 and M~, supra. Under the OGC opinions, this provides adequate legal basis for concluding that VCA is an educational institution (EI) for SSA purposes.

Union Bible Academy (UBA) in Westfield, Indiana provides education that meets all the requirements under Indiana's compulsory education law. Thus, UBA is an educational institution for SSA purposes.

By memorandum dated August 29, 1991, you asked us for an opinion on whether Union Bible Academy (UBA) in Westfield, Indiana 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 UBA appears to meet all of the requirements under Indiana's compulsory education law, it is legally supportable for SSA to conclude that UBA provides an education as determined under State law. That is, UBA can therefore be recognized as an 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, although you have the relevant principles applicable in Indiana cases in several opinions written by our office in the past fifteen months. Even before the relevant POMS sections are revised, you may therefore wish to ask your central office for authority to resolve cases arising in Indiana 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 "[i]f 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 UBA maintains a program that is directed toward a specific educational objective, such as a diploma; states that it hires individuals primarily to teach; and appears to use 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.

Prior legal opinions, including several that involved Indiana law, have addressed 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. ^[5] All of these opinions find that it is legally supportable to conclude that for SSA purposes an 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. ^[6] It is therefore legally supportable for SSA to conclude that the school provides education as determined under State law and is thus an EI for SSA purposes.

Two sections of Indiana's law are relevant. First, the Indiana compulsory education law, 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 non-public 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 Indiana compulsory education law, Ind.Code § 20-8.1-3-34, was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp. 1152 (D.C.Ind. 1985), aff'd. 798 F.2d 230 (7th Cir. 1986). There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives "instruction equivalent to that given in the public schools." 614 F.Supp. at 1159. In our opinion, for SSA purposes it is legally supportable to conclude that a school that satisfies the requirements of the State's compulsory education law provides education recognized by the State since the State would not prosecute parents for sending their children to such a school in lieu of an actually approved or accredited school. The M~ case involved an organized home study program.

We applied these principles under Indiana law in opinions sent to your office in the last fifteen months. ^[7] These opinions concluded that, under the principles outlined in prior OGC opinions and the relevant Indiana law, it was legally supportable for SSA to conclude that individual non-accredited nonpublic schools provided education recognized under Indiana's compulsory education law. Therefore it was legally supportable for SSA to recognize those particular schools as EIs. A May 1986 OGC opinion reached a similar conclusion with regard to Calvary Baptist School. OGC-SS (Woolford) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. That 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.

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

UBA is a non-public school. Accreditation of non-public schools in Indiana is voluntary and UBA has not applied for or received accreditation by the State of Indiana Department of Education. ^[8] UBA states that it is a tax exempt entity under section 501C of the Internal Revenue Code of 1986, as amended. We have no information regarding whether or not the school reports the number of enrolled children to the Indiana Department of Education.

UBA maintains a program that is directed toward a diploma at the end of twelfth grade. UBA appears to use formal teaching materials and facilities. UBA offers a full academic program, with courses comparable to those taught in the public schools, as well as in Bible. UBA offers a College Preparatory major, a Business Preparatory major and a General major, with many electives. UBA reports that it hires individuals primarily to teach. UBA further reports that the teachers are college graduates, but not all are certified teachers according to State standards. The school year and the length of the school day appear to be comparable to those of the public schools. The claimant reported attendance of 32?? hours per week from August 21, 1990 through May 27, 1990. We do not know if UBA follows the State attendance laws. Although we know that the claimant plans to attend college at Union Bible College when he completes high school at Union Bible Academy, we do not know if UBA students have traditionally gone on to higher education.

Neither do we know if UBA is listed in the Indiana School Directory, distributed by the Department of Education. However, the document is frequently out of date, and at least five schools previously considered by OGC, Grace Baptist School, supra, Freedom Baptist Academy, supra, Berean Christian Academy, supra, Lighthouse Christian Academy, supra, and the Calvary Baptist School, supra, were also not listed in the Indiana School Directory.

In our opinion, under the principles outlined in the prior OGC opinions and the M~ case, the foregoing facts establish that UBA would be found to provide education recognized under Indiana's compulsory attendance 1aw. That is, school is taught in the English language and is in session for at least the number of days public schools are in session, Ind.Code § 20-8.1-3-17, and "instruction equivalent to that given in the public schools" appears to be provided, Ind.Code § 20-8.1-3-34 and M~, supra. Under the OGC opinions, this provides adequate legal basis for concluding that UBA is an EI for SSA purposes.

Grace Baptist School (GBS) in Terre Haute, Indiana provides education that meets all the requirements under Indiana's compulsory education law. Thus, GBS is an educational institution for SSA purposes.

By memorandum dated April 25, 1991, you asked us for an opinion on whether Grace Baptist School (BS) in Terre Haute, Indiana 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 Grace Baptist School appears to meet all of the requirements under Indiana's compulsory education law, it is legally supportable for SSA to conclude that Grace Baptist School provides an education as determined under State law. That is, GBS 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, although you have the relevant principles applicable in Indiana cases in several opinions written by our office in the past thirteen months. Even before the relevant POMS sections are revised, you may therefore wish to ask your central office for authority to resolve cases arising in Indiana 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 Grace Baptist School (GBS) maintains a program that is directed toward a specific educational objective, such as a diploma; states that it 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.

Prior legal opinions, including several that involved Indiana law, have addressed 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. ^[9] 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 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. ^[10]

Two sections of Indiana's law are relevant. First, the Indiana compulsory education law, 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 non-public 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 Indiana compulsory education law, Ind.Code § 20-8.1-3-34, was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp 1152 (D.C.Ind. 1985), aff'd. 798 F.2d 230 (7th Cir. 1986). There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives "instruction equivalent to that given in the public schools." 614 F.Supp. at 1159. In our opinion, for SSA purposes it is legally supportable to conclude that a school that satisfies the requirements of the State's compulsory education law provides education recognized by the State since the State would not prosecute parents for sending their children to such a school in lieu of an actually approved or accredited school. The M~ case involved an organized home study program.

We applied these principles under Indiana law in opinions sent to your office in the last thirteen months.^[11] These opinions concluded that, under the principles outlined in prior OGC opinions and the relevant Indiana law, it was legally supportable for SSA to conclude that individual non-accredited non-public schools provided education recognized under Indiana's compulsory education law. Therefore it was legally supportable for SSA to recognize those particular schools as educational institutions (EIs). A May 1986 OGC opinion reached a similar conclusion with regard to Calvary Baptist School. OGC-SS (W~) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. That 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.

Applying a similar analysis to Grace Baptist School (GBS), in our opinion it is legally supportable for SSA to conclude that GBS provides education recognized under Indiana's compulsory education law. Therefore it is legally supportable for SSA to recognize GBS as an educational institution (EI).

Grace Baptist School (GBS) is a non-public school. Accreditation of non-public schools in Indiana is voluntary and GBS has not applied for or received accreditation by the State of Indiana Department of Education. We have no information regarding whether nor not the school has been granted tax exempt status. We also do not know if the school reports the number of enrolled children to the Indiana Department of Education.

GBS maintains a program that is directed toward a diploma at the end of twelfth grade. GBS uses formal teaching materials from the Accelerated Christian Education (ACE) program based in Texas. Other Indiana schools we have previously reviewed submitted printed promotional materials that show that students using the ACE materials perform as well or better than other students on standardized tests and in higher education. See, e.g., Anderson Covenant Academy, supra; and Lighthouse Christian Academy, supra. There appears to be a full academic program, with courses comparable to those taught in the public schools as well as in Christian Education. GBS reports that it hires individuals primarily to teach, although they do not hold State teaching certificates. However, under the ACE program which we have reviewed in other Indiana cases (e.g., Anderson Covenant Academy, supra, and Lighthouse Christian Academy, supra) teachers receive training to became familiar with the teaching materials and are eligible to participate in year-round training at regularly-scheduled educators' conventions. The school year of GBS appears to be comparable to that of the public schools. The claimant reported attendance of 31 hours per week, and the school calendar ran from August 22, 1989 through May 31, 1990. We do not know if GBS follows the State attendance laws. We also do not know if GBS students have gone on to higher education, but GBS reports that its credits are recognized by all Indiana schools.

We also do not know if GBS is listed in the Indiana School Directory, distributed by the Department of Education. However, the document is frequently out of date, and at least three schools previously considered by OGC, Berean Christian Academy, supra, Lighthouse Christian Academy, supra, and the Calvary Baptist School, supra, were also not listed in the Indiana School Directory.

In our opinion, under the principles outlined in the prior OGC opinions and the M~ case, the foregoing facts establish that GBS would be found to provide education recognized under Indiana's compulsory attendance law. That is, school is taught in the English language and is in session for at least the number of days public schools are in session, Ind.Code § 20-8.1-3-17, and "instruction equivalent to that given in the public schools" appears to be provided, Ind.Code § 20-8.1-3-34 and M~, supra. Under the OGC opinions, this provides adequate legal basis for concluding that GBS is an educational institution (EI) for SSA purposes.

Berean Christian Academy (BCA) in West Baden, Indiana provides education that meets all the requirements under Indiana's compulsory education law. Thus, BCA is an educational institution for SSA purposes.

By memorandum dated December 13, 1990, you asked us for an opinion on whether Berean Christian Academy (BCA) in West Baden, Indiana 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 Berean Christian Academy appears to meet all of the requirements under Indiana's compulsory education law, it is legally supportable for SSA to conclude that Berean Christian Academy provides an education as determined under State law. That is, BCA 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 fourth opinion this year involving recognition of a non-accredited non-public school as an EI under Indiana law. The issue was also previously considered in a May 1986 OGC legal opinion. You thus have the relevant principles applicable in Indiana cases. Even before the relevant POMS sections are revised, you may therefore wish to ask your central off ice for authority to resolve cases arising in Indiana 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. It appears here that the requirements outlined in the POMS section for a school are met, since Berean Christian Academy (BCA) maintains a program that is directed toward a specific educational objective, such as a diploma; appears to hire individuals primarily to teach; and has a school building. Unfortunately, we do not know about the teaching materials used by the school, but assume formal teaching materials are used based on related information in the file.

Next, POMS RS 00205.250 8.2 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 (M~) to Acting RC-SSA-V (B~), "Determining the Educational Institution (EI) Status of Lighthouse Christian Academy (LCA) in Washington, Indiana," December 14, 1990; OGC-V (M~) to Acting RC-SSA-V (B~), "Determining the Educational Institution (EI) Status of Midway Christian Academy (MCA) in Chicago, Illinois," December 14, 1990; OGC-V (M~) to RC-SSA-V, "Determining the Educational Institution (EI) Status of Liberty Christian School (LCS) in Anderson, Indiana," November 15, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Indiana Christian Academy (ICA)," August 24, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Temple Christian Academy (TCA)," August 24, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Christian Liberty Academy (CLA)," August 24, 1990; OGC-VIII (L~ and B~) to RC-SSA-VIII, "Status of the Northwest Indian Bible School as an Educational Institution," January 26, 1990; and OGC-SS (W~) to Office of Hearings and Appeals, "Definition of Elementary or Secondary School for Purposes of Student Benefits," May 12, 1986. Four of these opinions involved Indiana 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 nonpublic school appears to meet al1 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. ^[12]

Two sections of Indiana's law are relevant. First, the Indiana compulsory education law, 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 § 20-8.1-317 requires all non-public 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 Indiana compulsory education law, Ind.Code § 20-8.1-3-34, was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp 1152 (D.C.Ind. 1985), aff'd. 798 F.2d 230 (7th Cir. 1986).

There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives "instruction equivalent to that given in the public schools." 614 F.Supp. at 1159. In our opinion, for SSA purposes it is legally supportable to conclude that a school that satisfies the requirements of the State's compulsory education law provides education recognized by the State since the State would not prosecute parents for sending their children to such a school in lieu of an actually approved or accredited school. The M~ case involved an organized home study program.

We applied these principles under Indiana law in our December 14, 1990 opinion involving Lighthouse Christian Academy (LCA), supra, our November 15, 1990 opinion involving Liberty Christian School (LCS), supra, and our August 24, 1990 opinion involving Indiana Christian Academy (ICA), supra. The May 1986 OGC opinion, supra, applied these principles under Indiana law to Calvary Baptist School. Our three recent opinions concluded that, under the principles outlined in the prior OGC opinions and the relevant Indiana law, it was legally supportable for SSA to conclude that LCA, LCS and ICA provided education recognized under Indiana's compulsory education law. Therefore it was legally supportable for SSA to recognize LCA, LCS and ICA as educational institutions (EIs). The May 1986 OGC opinion reached a similar conclusion with regard to Calvary Baptist School. That 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.

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

Berean Christian Academy (BCA) is a non-public school. Accreditation of nonpublic schools in Indiana is voluntary and BCA has not applied for or received accreditation by the State of Indiana Department of Education. Although BCA states that it has been granted tax exempt status, it appears that the tax exempt status has been given to the church of which the school is a part, rather than to the school, and is based on the church's status as a religious organization rather than as an educational institution. It does not appear that the school reports the number of enrolled children to the Indiana Department of Education.

BCA maintains a program that is directed toward a diploma at the end of twelfth grade. BCA states that four of its graduates have gone on to college and had higher than average SAT scores. We know nothing about the teaching materials used by BCA or the courses offered. As has been the case in several of the prior instances we have considered, BCA has advised SSA that the instructors do not have college degrees in teaching. The school year and length of school day appear to be comparable to those of the public schools. BCA states that its credits are transferable to other high schools.

BCA does not appear to be listed in the Indiana School Directory, distributed by the Department of Education. However, the document is frequently out of date. At least two schools previously considered by OGC, Lighthouse Christian Academy and the Calvary Baptist School, were also not listed in the Indiana School Directory.

In our opinion, under the principles outlined in the prior OGC opinions and the M~ case, the foregoing facts establish that BCA would be found to provide education recognized under Indiana's compulsory attendance law. That is, school is taught in the English language and is in session for at least the number of days public schools are in session, Ind.Code § 20-8.1-3-17, and "instruction equivalent to that given in the public schools" appears to be provided, Ind.Code § 20-8.1-3-34 and M~, supra. Under the OGC opinions, this provides adequate legal basis for concluding that BCA is an educational institution (EI) for SSA purposes.

Liberty Christian School (LCS) in Anderson Indiana, provides education that meets all the requirements under Indiana's compulsory education law. Thus, LCS is an educational institution for SSA purposes.

By memorandum dated November 7, 1990, you asked us for an opinion on whether Liberty Christian School (LCS) in Anderson, Indiana 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 Liberty Christian School appears to meet all of the requirements under Indiana's compulsory education law, it is legally supportable for SSA to conclude that Liberty Christian School provides an education as determined under State law. That is, LCS 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 nonpublic unaccredited 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. However, as you know, the relevant POMS sections are currently under review.

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.I 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 Liberty Christian School (LCS) 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 8.2 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 (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Indiana Christian Academy (ICA)," August 24, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Temple Christian Academy (TCA), August 24, 1990; OGC-V (M~) to RC-SSA-V (M~), "Determining the Educational Institution (EI) Status of Christian Liberty Academy (ICA), 24, 1990; OGC-VIII (L~ and B~) to RC-SSA-VIII, "Status of the Northwest Indian Bible School as an Educational Institution," January 26, 1990; and OGC-SS (W~) 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 Indiana 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 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. 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 Indiana compulsory education law, Ind. Code § 20-8.1-3-34, was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp 1152 (D.C.Ind. 1985), aff'd. 798 F.2d 230 (7th Cir. 1986). There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives "instruction equivalent to that given in the public schools." 614 F.Supp. at 1159. In our opinion, for SSA purposes it is legally supportable to conclude that a school that satisfies the requirements of the State's compulsory education law provides education recognized by the State since the State would not prosecute parents for sending their children to such a school in lieu of an actually approved or accredited school. The M~ case involved an organized home study program.

The May 1986 OGC opinion applied reasoning similar to the court in M~ and concluded that the facts support finding 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 was performed in the August 24, 1990 opinion involving Indiana Christian Academy (1CA). Again, we found that the facts supported concluding that the school's instructional program would satisfy the State's requirements for a school under the State's 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. It was established that the school, ICA, was run by the Grace Baptist Church. Although the church was exempt from taxes under Indiana law, ICA did not have a separate tax exemption as a school. ICA maintained a school year comparable to that of the public schools, maintained a program that was directed toward specific educational objectives, and granted diplomas. Several educational institutions accept credits from the school. On these facts, we concluded that SSA could properly conclude that the school was an EI. Although not necessary to the conclusion, we also found that ICA has been listed in the Indiana School Directory, distributed by the Department of Education, as an "unclassified" — i.e., unaccredited — school, and that ICA complies with the State law requirement that nonpublic schools must report the number of children enrolled by grade level to the Indiana Department of Education.

As we concluded in our recent August 24, 1990 opinions, in our opinion it is appropriate for 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 and, in the absence of a State opinion, to make the determination under State law. ^[13]

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 Indiana's compulsory attendance law to Liberty Christian School (LCS), under the principles outlined in the prior OGC opinions and in the M~ case, in our opinion it is legally supportable for SSA to conclude that LCS provides education recognized under Indiana's compulsory education law. Therefore it is legally supportable for SSA to recognize LCS as an educational institution (EI).

Liberty Christian School (LCS) in Anderson, Indiana is a nonpublic school. Accreditation of nonpublic schools in Indiana is voluntary and LCS has not applied for or received accreditation from the State of Indiana Department of Education. We have no information regarding whether or not the school has been granted tax exempt status, or on whether the school reports the number of enrolled children to the Indiana Department of Education.

LCS maintains a program that is directed toward a diploma, hires individuals primarily to teach, and uses formal teaching materials. LCS states that the teachers all have a B.A. degree, and that 26% of staff have masters' degrees. Although you have not provided definitive information, it appears that the school year is at least as long as that of the public schools. The school's physical characteristics, curriculum, texts and graduation requirements do not appear in the record we have been asked to review, although the school's literature suggests instruction equivalent to that of the public schools. Significantly, LCS reports that numerous universities accept credits from LCS, and further states that 67% of its students have pursued further education.

In addition, LCS has been listed in the Indiana School Directory, distributed by the Department of Education, as an "unclassified" — i.e., unaccredited — school. However, the document is frequently out of date. We note, however, that the Calvary Baptist School considered in the May 12, 1986 OGC opinion was not listed in the Indiana School Directory.

In our opinion, under the principles outlined in the prior OGC opinions and the M~ case, the foregoing facts establish that LCS would be found to provide education recognized under Indiana's compulsory attendance law. That is, school is taught in the English language and is in session for at least the number of days public schools are in session, Ind.Code § 20-8.1-3-17, and "instruction equivalent to that given in the public schools" appears to be provided, Ind. Code § 20-8.1-3-34 and M~, supra. Under the OGC opinions, this provides adequate legal basis for concluding that LCS is an educational institution (EI) for SSA purposes.

These prior legal opinions, however, are not fully consistent with the Region's prior policy statements involving Indiana, issued in a December 1985 memorandum from the Regional Commissioner and a January 1986 program circular. However, since the POMS section directs that cases be sent to the chief counsel where there is no actual State accreditation or approval, considerations other than actual State accreditation or approval are relevant. In our opinion, the region's prior policy statements are too narrow to the extent that they ignore these other relevant considerations, and we recommended to you on August 24, 1990 that the region revise or rescind its prior policy statements. Although your staff have recently advised us that the program circular expired some time ago, it nonetheless appears that the prior policy statements have been relied on subsequent to the expiration date. You may therefore wish to take additional steps to assure that SSA personnel no longer rely on their contents to the extent they are inconsistent with our current advice.

Indiana — Indiana Christian Academy (ICA) provides education that meets all the requirements under Illinois' compulsory education law. Thus, ICA is an educational institution for SSA purposes. (Educational Institution (ICA) — CCV[W~] to Rc, Chicago, 08/24/90)

By memorandum dated July 31, 1990, you asked us for an opinion on whether Indiana Christian Academy (ICA) meets the definition of an "educational institution (EI)" set out in the Program Operations Manual System (POMS) at RS 00205.200. In our opinion, since Indiana Christian Academy appears to meet all of the requirements under Indiana's compulsory education law, it is legally supportable for SSA to conclude that Indiana Christian Academy provides an education as determined under State law. That is, ICA can therefore be recognized as an educational institution (EI) for SSA purposes.

As you know, this response affects payment of benefits to two different beneficiaries. There is a pending Congressional inquiry that involves one of those beneficiaries.

In addition, we recommend that you revise the Region's prior policy statements involving Indiana to more closely reflect the advice contained in this opinion. The prior policy statements are reflected in a December 1985 memorandum from the Regional Commissioner and a January 1986 program circular. You may also 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. There is no question here that the requirements outlined in the POMS section for a school are met, since Indiana Christian Academy (ICA) 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 (L~ and B~) to RC-SSA- VIII, "Status of the Northwest Indian Bible School as an Educational Institution," January 26, 1990; OGC-SS (W~) 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. ^[14]

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 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 Indiana compulsory education law, Ind.Code § 20-8.1-3-34, was construed in Mazanec v. North Judson-San Pierre School Corp., 614 F.Supp 1152 (D.C.Ind. 1985), aff'd. 798 F.2d 230 (7th Cir. 1986). There, the district court held that under the State compulsory education law, acceptable education is provided where the pupil receives "instruction equivalent to that given in the public schools." 614 F.Supp. at 1159. In our opinion, for SSA purposes it is legally supportable to conclude that a school that satisfies the requirements of the State's compulsory education law provides education recognized by the State since the State would not prosecute parents for sending their children to such a school in lieu of an actually approved or accredited school. The M~ case involved an organized home study program.

The May 1986 OGC opinion applied reasoning similar to the court in M~ and concluded that the facts support finding 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 starers 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 Indiana's compulsory attendance law to Indiana Christian Academy (ICA), under the principles outlined in the prior OGC opinions and in the Mazanec case, in our opinion it is legally supportable for SSA to conclude that ICA provides education recognized under Indiana's compulsory education law. i' Therefore it is legally supportable for SSA to recognize ICA as an educational institution (EI).

Indiana Christian Academy (ICA) is a nonpublic school run by the Grace Baptist Church. Accreditation of nonpublic schools in Indiana is voluntary and ICA has not applied for or received accreditation by the State of Indiana Department of Education. The tax exempt status granted by the State of Indiana, Office of the Secretary of State, is given to the church rather than the school, and is based on its status as a religious organization and not as an educational institution. The school has not applied for a separate tax exemption as a school.

ICA appears to maintain a school year comparable to that of the public schools, to maintain a program that is directed toward specific educational objectives, and to grant diplomas. The school's physical characteristics, curriculum, texts and graduation requirements do not appear in the record we have been asked to review. Ball State University in Muncie, Indiana and Vincennes University in Vincennes, Indiana, were contacted and stated that they and other accredited educational institutions accept credits from ICA.

ICA has been listed in the Indiana School Directory, distributed by the Department of Education, as an "unclassified" — i.e., unaccredited — school. However, the document is frequently out of date. We note, however, that the Calvary Baptist School considered in the May 12, 1986 OGC opinion was not listed in the Indiana School Directory.

In our opinion, under the principles outlined in the prior OGC opinions and the Mazanec case, the foregoing facts establish that ICA would be found to provide education recognized under Indiana's compulsory attendance law. Under the OGC opinions, this provides adequate legal basis for concluding that ICA is an educational institution (EI) for SSA purposes.

In addition, the Indiana Department of Education has verified that ICA does comply with the separate State law requirement, Ind.Code § 20-8.1-3-24, that nonpublic schools must report the number of children enrolled by grade level to the Indiana Department of Education. Thus, in this case there is additional factual support for concluding that a State authority would recognize the education provided by ICA.

We recommend that you revise the January 1986 program circular consistent with this opinion.

You may also 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.