The Impact on Learning, located in Hamilton, Montana, does not meet the requirements of a nonpublic school under Montana law and is not, therefore, an educational institution for SSA purposes.

Question Presented

You asked us to determine whether Impact on Learning, a private school in Montana, is an educational institution under Montana law.

Short Answer

Impact on Learning is not an educational institution under Montana law because it does not meet the state’s requirements for nonpublic schools.  Moreover, the claimant cannot satisfy the federal full-time attendance standard of at least 20 hours per week. Thus, the claimant would not be eligible for child’s benefits even if Impact on Learning qualified as an educational institution.

Background

You informed us that the claimant turned age 18 in September 2010 and attends Impact on Learning, a “private school located in Montana” that “teach[es] in connection with Lighthouse, a Christian school located in Pennsylvania.”

In January 2011, the claimant submitted a form SSA-1372 (Student’s Statement Regarding School Attendance). He identified his school as Lighthouse Christian Academy (Lighthouse) in Nashville, Tennessee. He checked the boxes “High School” and “Home School” for type of school program. The claimant indicated he attends school year round; is scheduled to attend school 28 hours per week; and expects to graduate in June 2011. Karen G~, a Lighthouse official and the claimant’s “academic advisor,” certified the claimant’s responses as true and correct to the best of her knowledge. Ms. G~ also certified that Lighthouse’s course of study is at least 13 weeks in duration.

In April 2011, a claims representative (CR) contacted Ms. G~ and Margie G~, an Impact on Learning certified educational therapist. Ms. G~ described Lighthouse as follows. It is a year round “distance learning program.” Lighthouse does not maintain attendance records or require students to complete a certain number of hours. Lighthouse recommends but does not require that students and “student managers” follow their states’ guidelines for hours of scheduled attendance. Student managers assign grades to students and submit them to Lighthouse every six months for validation. Lighthouse’s curriculum includes the core subjects of math, science, social studies and English. Students are required to obtain four credits in all core subjects.

According to Ms. G~, students physically attend classes at Impact on Learning’s facility. Certified educational therapists teach (using Lighthouse’s curriculum) and assign grades to students. “Students sign in on an attendance log every morning and sign out on the same log when the student leaves.” Students work at their own pace but typically spend four hours each day on course work. During a follow-up conversation with the CR, Ms. G~ indicated the claimant “is in his own classroom with one teacher 3 hours a day, and he has 1-2 hours of schoolwork to complete each night at home.” You have verified that Impact on Learning does not maintain student immunization records.

The claimant submitted a second form SSA-1372 in April 2011. He identified Impact on Learning (not Lighthouse) as the school he attends and checked the box “High School” as his type of school program. He listed September 2010 as the start date of his school year and May 2011 as the end date. He indicated he is scheduled to attend school for 25 hours per week, and that he expects to graduate in October 2011. Wendy B~, Impact on Learning’s director, certified his responses as true and correct to the best of her knowledge.

In July 2011, Ms. B~ informed the CR that the claimant attends classes only three hours per day. She explained that Impact on Learning is “in the process of actually becoming a private school [,] so [they] haven’t had to adhere to any state standards as of yet because of [their] numbers being so low.” She also stated that Impact on Learning is physically located “in a commercial building that is up to code . . . .”

In September 2011, we spoke to Land H~, the Building Inspector/Zoning & Floodplain Administrator for the City of Hamilton, Montana. He was unable to confirm the building is up to code. He explained that his office had not inspected the building in over 30 years, because no tenant had requested a permit to enlarge or remodel the structure since the building’s initial construction in the 1970s. He also explained that the building is located in a transit/business district. Therefore, Impact on Learning would need to obtain a variance from the Zoning Board of Adjustment to operate a private school in the building. To date, Impact on Learning has not requested a variance. When Mr. H~ visited the building on September 13, 2011, Impact on Learning representatives maintained that Impact on Learning is a “professional educational services company” that helps students (mostly after school), not a private school.

Discussion

Requirements for Child’s Benefits after Age 18

Section 202(d) of the Social Security Act provides that child’s insurance benefits usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6)-(7). Entitlement to child’s benefits may continue, however, if (among other things) the child is “a full-time elementary or secondary student and ha[s] not attained the age of 19.” Id. § 402(d)(1). To be a full-time student, a claimant must attend a school that provides elementary or secondary education as determined under state law. See 20 C.F.R. § 404.367(a). Additionally, an individual must be in attendance full-time in a noncorrespondence course of study of at least 13 weeks duration. See id. § 404.367(b). Full-time attendance (FTA) requires scheduled attendance at the rate of at least 20 hours per week. Id. § 404.367(c). The school must certify the student is in FTA according to federal standards. See POMS RS 00205.350(B). The Act defines an elementary or secondary school as “a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.” 42 U.S.C. § 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a); POMS RS 00205.200 (defining an EI).

Montana’s Requirements for Nonpublic Schools

Since the claimant physically attends school in Montana, we must apply that state’s law in determining whether Impact on Learning is an educational institution (EI). In Montana, nonpublic schools must:

• •

  maintain attendance and immunization records;          

• •

  provide at least the minimum aggregate hours of pupil instruction required by state law (a minimum of 1,080 hours for grades four through twelve and 1,050 hours for graduating seniors);

• •

  be housed in a building that complies with applicable local health and safety regulations; and

• •

  provide an organized course of study that includes instruction in the subjects required of public schools as a basic instructional program (see below). 

Mont. Code Ann. §§ 20-5-109(1)-(4), 20-1-301. 

A basic educational program for ninth through twelfth graders requires at least 20 units of coursework that enables all students to meet content and performance standards.  Minimum offerings must include at least the following: four units of English language arts; three units of mathematics; three units of science; three units of social studies; two units of vocational/technical education; two units of arts; one unit of health enhancement; two units of world languages; and two units of electives. Mont. Admin. R. 10.55.904. 

Impact on Learning Does Not Qualify As an Educational Institution under Montana Law

Impact on Learning fails to satisfy Montana’s requirements for nonpublic schools.  First, while Impact on Learning maintains attendance records, it does not maintain immunization records. 

Second, we question whether Impact on Learning provides the minimum aggregate hours of pupil instruction required by state law.  School officials indicate that students typically spend four hours per day on coursework but admit that Impact on Learning’s standards do not require a certain number of hours per day of student instruction.  Nonetheless, even a year round school program with no vacation days that requires only four hours of instruction per day falls short of the required 1,080 aggregate hours of pupil instruction for grades four through twelve and 1,050 hours for graduating seniors (20 hours x 52 weeks = 1,040 hours).

Third, Impact on Learning does not satisfy the statutory requirement that it be housed in a building that complies with applicable local health and safety regulations. Mr. H~, the city building inspector, cannot certify the building that houses Impact on Learning as up to code. Moreover, he confirmed that Impact on Learning has not requested a variance to operate a private school in a building zoned for commercial use.    

Last, it appears Impact on Learning’s course of study is also insufficient to satisfy Montana law.  The Lighthouse curriculum used by Impact on Learning offers only one-half credit of health. However, Montana’s basic instructional program requires one credit of health enhancement that includes health and physical education.  See Montana Health Enhancement K-12 Content and Performance Standards with Benchmarks at 4th, 8th, and 12th Grades, http://opi.mt.gov/PDF/health/healthstds.pdf (last visited Sept. 15, 2011). 

In sum, Impact on Learning does not satisfy the requirements of a nonpublic school under Montana law. This conclusion is consistent with the statement to Mr. H~, made by an Impact on Learning representative, that Impact on Learning is a professional educational services company, not a private school. 

To the extent the claimant alleges that rather than attending private school he is home schooled at Impact on Learning, in Montana, “home school is the instruction by a parent of the parent’s child, stepchild, or ward in the parent’s residence . . . .” Mont. Code Ann. § 20-5-102(2)(e) (emphasis added). The claimant’s instruction at Impact on Learning plainly does not meet these criteria.

The Claimant Does Not Meet Federal Full-time Attendance Standards

According to Ms. G~ and Ms. B~, the claimant attends Impact on Learning for only three hours per day, which is the equivalent of 15 hours per week. (We presume the claimant does not attend school on weekends.) Thus, he cannot satisfy the federal FTA requirement of 20 hours per week. Attendance less than 20 hours per week may be justified if (1) the school’s standards do not require at least 20 hours of weekly scheduled attendance; and (2) attending that school is the student’s only reasonable alternative or if the student’s medical condition precludes 20 hours of attendance. See POMS RS 00205.310(A).  The claimant did not allege that attending Impact on Learning is his only reasonable alternative or that he has a medical condition that precludes 20 hours of attendance. Thus, even if Impact on Learning qualified as an EI under Montana law, which it does not, the claimant does not meet the federal FTA standard. 

Conclusion

Impact on Learning does not qualify as an EI under Montana law. Moreover, even assuming Impact on Learning qualified as an EI, which it does not, the claimant would not be entitled to child’s benefits because he does not meet the federal FTA standard of at least 20 hours per week.

John J. L~

Regional Chief Counsel, Region VIII

By: _______________

Yvette G. K~

Assistant Regional Counsel

Rocky Mountain Christian High School (RMCH) in Helena, Montana, provides education that meets all the requirements under Montana's compulsory attendance law. Thus, RMCH is an educational institution for SSA purposes.

Question

You have asked for an opinion on the issue of whether the Rocky Mountain Christian High School, located in Helena, Montana, meets the definition of an "educational institution" for purposes of determining eligibility for student benefits.

Summary

We believe Rocky Mountain Christian School is an "educational institution" for purposes of determining eligibility for student benefits.

Discussion

In order to be eligible for student benefits, an individual must meet certain eligibility requirements: he/she must 1) meet the requirements for child's benefits; 2) have attained the age of 18; and 3) be a full-time elementary or secondary school student who has not attained (or has not been deemed to have attained) age 19. See Program Operations Manual System (POMS) § RS 00205.100.A; see also U.S.C. §§ 402(d)(1)(B), (d)(7)(C)(i). In fact, the individual must be attending an "educational institution" (EI).

An EI must be a school that provides elementary or secondary education. Id. § RS 00205.250. Under POMS, an institution is a school if it 1) maintains a program that is directed towards a specific educational objective, such as a diploma; 2) hires either professional teachers who hold State teaching certificates or individuals hired primarily to teach; and 3) uses formal teaching materials and facilities.

Rocky Mountain Christian High School (RMCH) requires a student to earn 21 credits to graduate. Thus high school graduation appears to be its specific educational objective. RMCH employs five full time and four part time employees. RMCH has hired two additional full time employees for the 2000-2001 school year. These employees include an individual certified by the State of Montana, who teaches physical science, chemistry, biology, physics, senior bible, computers, and health and coaches girls' basketball; an individual certified by the State of Montana, who teaches senior English, honors English, and bible; an individual certified by the State of Montana, who teaches world history, American government, economics, and sophomore bible and coaches boys' soccer; an individual certified by the State of Montana, who teaches three levels of algebra, geometry, advanced math, and bible; an individual certified by the State of Montana, who teaches all levels of algebra, geometry, advanced math, calculus, and bible; and an individual who teaches English, honors English, bible, and speech. Thus, it appears RMCH hires professional teachers, five of whom hold State teaching certificates, and all of whom apparently were hired primarily to teach.

RMCH supplied a chart of its curriculum; its curriculum requirements and options; lists of textbooks used in each class; and Tables of Contents for these textbooks. Further RMCH provided a description of its school building indicating it contained five classrooms, a gym, a multipurpose room, a copy room, an office, a kitchen, and a coaches room. Based upon this information, it appears RMCH uses formal teaching materials and facilities.

Because RMCH has an educational objective, hires both professional teachers and individuals who primarily teach, and uses formal teaching facilities and materials, it is considered an EI for purposes of determining eligibility for student benefits.

The fact that RMCH is not accredited as a school by the State of Montana does not defeat its designation as an EI for purposes of student benefits. Prior opinions from the Office of the General Counsel have concluded that a private school need not be affirmatively accredited by the State in which it is located in order to qualify as an EI. Rather, if the school appears to meet all the requirements of the State's compulsory education law, it can be found to provide an education recognized under State law. See Memorandum, Status of Circle Christian Academy as an Educational Institution - Colorado, CC & RA VIII (L~ and E~-L~) to RC, SSA, May 1, 1992.

As we previously advised in Memorandum, Status of the Northwest Indian Bible School as an Educational Institution, CC & RA (L~ & B~) to RC, SSA, January 26, 1990, in Montana, a nonpublic school, such as RMCH, "may through its governing body, request that the board of public education accredit the school," MONT. CODE ANN. § 20-7-102(2) (1999) (emphasis added). However, the school is not required to seek accreditation. We further advised that Montana also has a compulsory attendance law that requires children to attend public school unless, among other things, her or she is "enrolled in a nonpublic or home school that complies with the provisions of [MONT. CODE ANN. §] 20-5-109." Memorandum, Status of the Northwest Indian Bible School . . . , supra (citing MONT. CODE ANN. § 20-5-1-2(2)(e)).

In Memorandum, Status of the Northwest Indian Bible School . . ., supra, we noted that "to qualify its students from exemption from compulsory enrollment . . . [in the State's public schools], a nonpublic institution shall:

(1) maintain records on pupil attendance and disease immunization and make the records available to the county superintendent of schools on request; (2) provide at least 180 days of pupil instruction or the equivalent in accordance with [MONT. CODE ANN. §§ 20-1-301 and 20-1-302]; (3) be housed in a building that complies with applicable local health and safety regulations; (4) provide an organized course of study that includes instruction in the subjects required of public schools as a basic instructional program pursuant to [MONT. CODE ANN. § 20-7-111] . . .

Memorandum, Status Northwest Indian Bible School . . ., supra; also MONT. CODE ANN. § 20-5-109 (1999).

RMCH appears to meet all of the requirements set out in Montana law to qualify its students for exemption from the Montana compulsory attendance law. According to RMCH, it maintains records on pupil attendance and inspects evidence of, and records the immunizations of, each pupil as part of his or her permanent record as prescribed by MONT. CODE ANN. § 20-5-406. According to RMCH, it provides the equivalent of 206 days of pupil instruction as required by MONT. CODE ANN. §§ 20-1-30, 20-1-302, 20-5-109(2).

Also according to RMCH, it is housed in one two-story building with five classrooms, a multipurpose room, a copy room, an office, a kitchen, a coaches room, and a gym. One of the classrooms is outfitted with a full science lab.

Finally, RMCH provides an organized course of study in the subjects required of public schools as a basic instructional program pursuant to MONT. CODE ANN. § 20-7-111. Montana School Accreditation Standards and Procedures Manual (SPM) § 10.55.904 provides "[t]he basic education program for each high school shall be at least 20 units of course work that give students the opportunity to meet the learner goals and the content and performance standards." SPM § 10.55.904(1) (1999). "Study areas shall include at least . . . 4 units of English language arts; . . . 3 units of mathematics; . . . 3 units of science; . . . 3 units of social studies; . . . 2 units of vocational/practical arts; . . . 2 units of fine arts; . . . 1 unit of health enhancement; . . . 2 units of second language." Id. § 10.55.904(2). RMCH requires its student to earn 21 credits to graduate and offers the following study areas: four years of English/Literature, four years of mathematics, four years of science, four years of history/social studies, two languages each offered for four years; two years of Physical Education; two years of Yearbook; up to four years of Art; four semesters of Computer; four semesters of Speech; four years of Chorus; one semester of Health; two years of Praise & Worship; Four years of Bible; and one year of Marketing Education.

Assuming RMCH's facility complies with applicable local health and safety regulations, it appears to be an EI that meets all of the requirements set out in Montana law to qualify its students for exemption from the Montana compulsory attendance law, SSA would be justified in concluding that the school "can be recognized as an approved school for purposes of the Social Security student benefit provision." Memorandum, Status of the Northwest Indian Bible School . . ., supra.