I. Federal Law and Policy
The Act provides for the payment of child’s insurance benefits to certain children
of individuals who are entitled to old-age or disability benefits. See 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. As relevant here, a child can obtain student benefits if he
or she is at least 18 years old but under age 19 and a full-time elementary or secondary
school student. See 42 U.S.C. § 402(d)(1)(B); see also 20 C.F.R. §§ 404.350(a)(5), 404.367; POMS RS 00205.001.
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. See 42 U.S.C. § 402(d)(7); see also 20 C.F.R. § 404.367. This definition can be broken down into two elements—“elementary
or secondary school” and “full-time attendance.”
First, the individual must attend a school that provides elementary or secondary education
“as determined under the law of the State or other jurisdiction in which it is located.”
42 U.S.C. § 402(d)(7)(C)(i); see also 20 C.F.R. § 404.367(a). The POMS refers to such a school as an “educational institution.”
See POMS RS 00205.200A. Specifically with respect to home schools, the individual must be “instructed in
elementary or secondary education at home in accordance with a home school law of
the State or other jurisdiction” in which he or she resides. 20 C.F.R. § 404.367(a)(1).
The POMS explains this to mean that:
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•
The law of the State in which the home school is located recognizes a home school
as an educational institution; and
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•
The home school the student attends meets the requirements of the State law where
he or she resides.
POMS RS 00205.275B.
Second, the home schooled student must satisfy the Federal standards for “full-time
attendance.” See POMS RS 00205.275B. To meet the Federal standards, the individual 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.[1]
II. Minnesota Law
A. Minnesota recognizes home school as an educational
institution.
It is first necessary to examine whether Minnesota law recognizes a home school as
an educational institution. POMS RS 00205.275B. We believe that it does. In Minnesota, “[e]very child between seven and 17 years
of age must receive instruction unless the child has graduated.” Minn. Stat. § 120A.22(5)(a).
The Minnesota statute specifically recognizes a home school as a type of “school”
for purposes of compulsory school attendance. See Minn. Stat. § 120A.22(4).[2] Moreover, the Minnesota Department of Education (MDE) website has a section that
provides information regarding home school education in Minnesota. See MDE, Home School Education, https://education.mn.gov/MDE/fam/nphs/home/ (last visited June 2, 2020). In particular, the MDE has issued a publication called
“Home-School Questions and Answers,” which states that home schooling in Minnesota
is covered under the compulsory instruction statute, Minn. Stat. §§ 120A.22, and related
statutes, and that home schools are considered a type of nonpublic school under Minnesota
law. See MDE, Home-School Questions and Answers at 1 (questions 1-2) (link to document available at Home School
Education, supra).
B. Minnesota statutory requirements for home schools.
Next, we must consider whether Minnesota law sets out requirements for home schools,
and whether those requirements apply to students age 17 and older. As discussed below,
we believe that while Minnesota does impose statutory requirements on home schools,
home schools do not have to meet those requirements after students pass the compulsory
age of 17. However, if home schooled students choose to continue to satisfy those
requirements after the age of 17, Minnesota will continue to recognize the home school
as an educational institution.
Under Minnesota law, home schools must meet the following criteria:
1. Instruction must be provided in at least the following subject areas;
a. basic communication skills including reading and writing, literature, and fine
arts;
b. mathematics and science;
c. social studies including history, geography, economics, government, and citizenship;
and
d. health and physical education.
2. Instruction, textbooks, and materials must be in the English language, except in
certain circumstances for certain students for whom English is not their first or
primary language.
3. Instructors must:
a. hold a valid teaching license in the field and for the grade level taught;
b. be directly supervised by a person holding a valid Minnesota teaching license;
c. successfully complete a teacher competency examination;
d. provide instruction in a school that is accredited by an accrediting agency recognized
by statute or the State commissioner;
e. hold a baccalaureate degree; or
f. be the parent of the student.[3]
4. The child’s performance must be assessed annually using a nationally norm-referenced
standardized achievement examination, unless the home school is accredited.[4] If the standardized test does not provide assessment of all subject areas listed
above in Number 1, and if the parent is the instructor, the instructor must assess
the child’s performance in those subject areas, unless the instructor meets the requirements
of Number 3, parts a, b, or c above.
See Minn. Stat. § 120A.22; see alsoHome
School Questions and Answers, supra, at 3-4 (questions 9-16).
In addition, home schools are required to submit initial and annual reports to the
district superintendent. See Minn. Stat. § 120A.24(1); see
alsoHome School Questions and Answers, supra,
at 2-3 (questions 6-8); MDE, Initial Registration Form for
Unaccredited Schools, https://education.mn.gov/mdeprod/groups/educ/documents/edform/mdaw/mdaz/~edisp/003867.pdf; MDE, Letter of Intent to Continue to Provide Instruction,https://education.mn.gov/mdeprod/groups/educ/documents/edform/mdaw/mdaz/~edisp/003868.pdf. While such reports are not required for students beyond the compulsory attendance
age, Minn. Stat. § 120A.22(2), evidence of reporting or similar interactions could
be evidence of ongoing student status. Lastly, the home school must maintain required
documentation, including documentation that all required subjects are being taught
and proof that required assessments have been administered. See Minn. Stat. § 120A.24(2); see
alsoHome School Questions and Answers, supra,
at 4 (question 18).
C. Minnesota recognizes home schools for children 17 (the compulsory
attendance) and older.
There is no indication that the above requirements would vary based on the age of
the child. As discussed below, Minnesota accepts evidence of home school instruction,
and provides resources for home schools through grade 12, regardless of the child’s
age. As a result, if evidence indicates that the above requirements are satisfied
and the child is age 17 or above, we believe that the agency could reasonably find
that the child is considered a student under Minnesota law.
Minnesota requires that most children attend school through age 17, and it is silent
as to the status of children older than 17. Minn. Stat. § 120A.22. Thus, there are
no specific statutes that impose requirements for home schooled students age 17 and
older.[5] However, other authorities suggest that Minnesota continues to recognize home schools
that continue to satisfy the requirements after the child is past the compulsory age
of school attendance.
For example, while Minnesota law only requires home schools to submit an annual letter
of intent to continue to provide home school instruction to the superintendent of
the local school district for students up to attainment of age 17, we contacted the
MDE Ombudsperson and learned that the superintendent will accept the letter for students
older than 17. See Minn. Stat. §§ 120A.22(2), 120A.24(1)(b). In addition, the MDE publication “Home-School
Questions and Answers,” includes resources for standardized tests available to home
schooled students up to grade 12. See Home-School Questions and Answers, supra, at 3 (question 12). It is not unusual for students to be age 18 or older during
grade 12, therefore Minnesota’s reference to testing for grade 12 students supports
a reasonable inference that education of students above the compulsory age is anticipated.
Finally, the conclusion that Minnesota extends recognition of home schools to children
age 17 and older is consistent with the parallel recognition of attendance by public
school students. While compulsory attendance is required only through the attainment
of age 17, Minnesota permits public school students up to age 21 to attend public
school. See Minn. Stat. § 120A.20(1).[6] The availability of public school education beyond the compulsory age suggests that
the compulsory age is intended as a minimum requirement rather than a prohibition
for children older than 17 to continue schooling.