You have requested our opinion regarding whether the Ombudsman Alternative Education
Program in Manchester, New Hampshire can considered an educational institution, and
whether Sean C~ can be considered to be in full time attendance. For the reasons stated
below, it is our opinion that the program can be considered an educational institution
and that Sean C~ is in full time attendance.
The relevant facts as we understand them are: Ombudsman has been hired by the State
of New Hampshire as an alternative program for their Department of Education and is
considered to be an approved program by the Department of Education. The program's
current school year runs between September 2006 and June 2007 and requires its participants
to attend classes for fifteen hours a week and then complete another fifteen hours
of voluntary or paid work.
The beneficiary states that he attends classes for fifteen hours a week and then performs
another fifteen hours of required work or volunteer hours per week.
Section 202(d)(7)(A) of the Act provides in pertinent part that a “full time elementary
or secondary school student” is an individual who is in full time attendance as a
student at an elementary or secondary school as determined by the Commissioner in
light of the standards and practices of the schools involved.
Section 202(d)(7)(C)(i) of the Act states that an elementary or secondary school is
a school that provides elementary or secondary education, respectively, as determined
under the law of the State or other jurisdiction in which it is located.
The Commissioner's regulations at 20 C.F.R. § 404.367 (2005) basically restate the
SSA's policy in this area in set out in Program Operations Manual System (POMS). POMS
section RS 00205.200, “What is an Educational Institution (EI) - Policy” states in relevant part that
an “EI” is a school that provides elementary or secondary education, as determined
under the law of the State or other jurisdiction in which it is located. An institution
must be a school to be an EI.
POMS RS 00205.250C. outlines a multi-step process to determine if the school provides elementary or secondary
education as determined under State law. Steps two and three provide that where the
school has not applied for nor received accreditation from the State and the State
Department of Education cannot state that the school provides an approved elementary
or secondary program, the case should be submitted to the Chief Counsel to determine
if the school qualifies as an EI under the law of the State or other jurisdiction
in which it is located.
Since there is no valid precedent for the Ombudsman Alternative Education Program
in the State of New Hampshire, you have forwarded this request for our opinion as
to whether this program can be considered an EI.
For the Ombudsman Alternative Education Program to be considered an EI, the program
must conform to the requirements of state law and meet the Federal Standards of Attendance.
To meet the federal requirements, a student must be scheduled for attendance at a
rate of at least twenty hours a week, be enrolled in a course that is not a correspondence
course and be enrolled in a course of study for at least a thirteen week duration.
POMS RS 00205.300C.
Based on the information provided, the Ombudsman Program appears to meet the federal
requirements for an EI. The program will be of at least thirteen weeks in duration
as Sean C~ is scheduled to attend the program from September 2006 through June 2007.
The program also does not appear to involve correspondence courses. Further, the Ombudsman
Program has certified that Sean C~ is attending classes for fifteen hours a week as
well as performing at least fifteen hours a week of employment or volunteer work.
The question then becomes whether the Ombudsman Program meets the state requirements
for being an EI. To meet the state criteria for being an EI, the program must provide
an elementary or secondary education as required by the laws of the State where located.
POMS RS 00205.200 In this case, for the program to qualify as an EI, the curriculum of the program
must meet the standards set by the State of New Hampshire.
Chapter XV, Section 193-E:2 of the New Hampshire Statutes states that an equitable
education shall provide all students with the opportunity to acquire:
I. Skills in reading, writing and speaking English to enable them to communicate effectively
and think creatively and critically.
II. Skill in mathematics and familiarity with methods of science to enable them to
analyze information, solve problems and make rational decisions.
III. Knowledge of the biological, physical and earth sciences to enable them to understand
and appreciate the world around them.
IV. Knowledge of civics and government, economics, geography and history to enable
them to participate in the democratic process and to make informed choices as responsible
V. Grounding in the arts, languages and literature to enable them to appreciate our
cultural heritage and develop lifelong interests and involvement in these areas.
VI. Sound wellness and environmental practices to enable them to enhance their own
well-being as well as that of others.
VII.Skills for lifelong learning, including interpersonal and technological skills
to enable them to learn, work and participate effectively in society.
Sean C~ has provided his Individualized Learning Plan for 2006-2007 which indicates
that he is taking courses in Biology, Economics, Health, New Hampshire History, Physical
Education, Physical Science, English I, English II and Introduction to Algebra. As
this curriculum appears to meet the requirements of New Hampshire state law, we believe
that the Ombudsman Alternative Education Program can be considered an EI.