The claimant, who lives in Alabama, attends James Madison High School, a.k.a. Ashworth College, an online school located in Norcross, Georgia. We look to the law of Alabama, where the claimant lives, to determine whether she is home-schooled. Alabama law provides for education at home under one of three options: affiliation with a church school; affiliation with a private school; or instruction by a private tutor who has a valid Alabama teaching certificate. The evidence provided does not establish that the claimant is home-schooled under any of these options.

Question

For determining a claimant’s eligibility for child’s insurance benefits (CIB) as a full-time student, you asked whether the claimant’s attendance at Ashworth College a.k.a. James Madison High School (JMHS), an entity located in Georgia, satisfies the requirements for full-time attendance where the claimant is an Alabama resident.

OPINION

JMHS is not an educational institution and Claimant does not meet the State (Alabama) or Federal standards for full-time attendance.

Background

According to the information provided, H~(Claimant) received CIB on the earnings record of her father, J~. , the deceased number holder. Claimant seeks CIB beyond the age of eighteen as a full-time student.  Claimant provided a Student Statement Regarding School Attendance (Form SSA-1372-BK), in which she reported she lives in Toney, Alabama, and attends JMHS, which she stated was an online high school located in Norcross, Georgia.  Claimant did not indicate a specific number of hours per week that she attends. However, Claimant said that between the date she completed the Statement and her expected graduation of May 2015, there would be no months in which she will not be in “full time attendance.” Claimant indicated she has attended JMHS since May 2013.  Claimant reported she expected to graduate in May 2015; was not married or disabled; did not expect to earn more than $15,480 in 2014; and was not being paid to attend school. Claimant also provided the Certification by School Official page of Form SSA-1372-BK, but the page is not signed and does not identify a school official.

An Education Specialist with JMHS sent SSA a letter stating Claimant enrolled at JMHS on May 2, 2013, and was an active student in good standing. The Education Specialist explained JMHS did not classify students as full- or part-time and stated students work at their own pace and were not required to spend any set number of hours on their studies. This information conforms with JMHS’s website. See Online Learning Experience – JMHS, http://www.jmhs.com/why-jmhs/learning-experience; Homeschooling High School – Homeschool Online – JMHS, http://www.jmhs.com/why-jmhs/learning-experience (last visited Feb. 3, 2015).  According to JMHS’s website, students access their courses through an online student portal where they start and finish lessons on their own schedule. See Online Learning Experience - JMHS, http://www.jmhs.com/why-jmhs/learning-experience (last visited Feb. 3, 2015).  Students can access classes when and where they like, study at their own pace, and take tests when they choose. See id.

DISCUSSION

To be eligible for CIB on the earnings record of an individual who dies fully or currently insured, an individual who is eighteen years or older and not disabled must be a “full-time elementary or secondary school student.” Social Security Act (Act) § 202(d)(1)(B)(i), (d)(7)(A); see 20 C.F.R. §§ 404.350(a)(5), 404.367 (2014); ^[1] Program Operations Manual System (POMS) RS 00205.001(A). An individual may qualify as an “elementary or secondary school student” if he or she attends an educational institution, i.e., a school that provides elementary or secondary education (twelfth grade or below) according to the law of the State or jurisdiction where the school is located. See Act § 202(d)(7)(A), (d)(7)(C); 20 C.F.R. § 404.367(a), (e); POMS RS 00205.001(A); POMS RS 00205.200(A).  An individual also may qualify as an elementary or secondary school student if he or she receives instruction in elementary or secondary education at home under the home school law of the State or other jurisdiction where the individual resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275(A).  Additionally, an individual may be considered an elementary or secondary school student if he or she is in an independent study program administered by the local school or school district in accordance with the law of the State or jurisdiction in which he or she resides. See 20 C.F.R. § 404.367(a)(2); POMS RS 00205.285.

An individual also must attend school full time to qualify as a “full-time elementary or secondary school student.” See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.001(A); POMS RS 00205.300(A). An individual attends full time if he or she is attending an educational institution and meets both State and Federal standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(a), (c); POMS RS 00205.295(B); POMS RS 00205.300(A). Similarly, a claimant attending an on-line school attends full time if he or she is attending an on-line school consistent with the law of the State in which the on-line school is located (i.e., an educational institution), and meets both State and Federal standards for full-time attendance. See POMS RS 00205.295(B); POMS RS 00205.300(A).  An individual meets the State standards if the school considers the beneficiary to be a full-time student based on the school’s standards and practices. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b); POMS RS 00205.300(B); POMS RS 00205.350(C)(1).  An individual meets the Federal standards if he or she is scheduled to attend school at the rate of at least twenty hours per week, enrolled in a noncorrespondence course, and enrolled in a course of study lasting at least thirteen weeks. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300(C).  A home schooled individual must meet the federal standards for full-time attendance and meet the home-school requirements of the State in which the home school is located. See 20 C.F.R. § 404.367(b); POMS RS 00205.275(B).  Attendance for a student in an independent study program must also meet the Federal full-time attendance requirements, which one accomplishes by combining the number of hours at a school facility with the agreed upon number of hours in independent study. See 20 C.F.R. § 404.367(c); POMS RS 00205.285(B).

Educational Institution Under Georgia Law

We have determined in prior opinions that JMHS does not qualify as an educational institution in Georgia, the state in which it is located. See Program Operations Manual System (POMS) PR 07905.012 (PR 14-168, Sept. 11, 2014; PR 13-024, Dec. 3, 2012). The previous opinions were based on the facts that JMHS does not require any set number of hours to be spent on studies and there is no evidence that JMHS keeps attendance logs or complies with Georgia reporting requirements law. See id. ; Ga. Code Ann. § 20-2-690(b)(3), (5) (2014). Claimant has provided nothing to warrant a change from the prior determinations.  Therefore, Claimant cannot qualify as a full-time elementary or secondary student based on her enrollment at JMHS.

Home Schooling and Independent Study under Alabama Law

Because Claimant resides in Alabama, we look to Alabama law to determine whether Claimant is home schooled. See 20 C.F.R. § 404.367(a)(1), (b); POMS RS 00205.275(A)-(B). Under Alabama law, every child between the ages of six and seventeen years is required to attend a public school, private school, or church school, or receive instruction from a competent private tutor.  Ala. Code § 16-28-3 (2014). Although Alabama's statutes do not explicitly address home education, homeschoolers can teach their children at home under one of three conditions:  (1) by affiliating with a church school; (2) by affiliating with a private school, or (3) as a private tutor, in which case the tutor must have a valid Alabama teaching certificate. See Ala. Code §§ 16-28-1, 16-28-3, 16-28-5 (2014).

Option one: Church School. Home schools may qualify as “schools that offer instruction in grades K-12, or any combination thereof, including preschool, through on-site or home programs, and are operated as a ministry of a local church, group of churches, denomination, and/or association of churches on a nonprofit basis which do not receive any state or federal funding.” Ala. Code § 16-28-1(2). A child attending a church school is exempt from the requirements of compulsory attendance provided the child complies with the enrollment and reporting procedure in section 16-28-7. Ala. Code §§ 16-1-11.1(3), 16-1-11.3, 16-28-3. “The enrollment and attendance of a child in a church school must be filed with the local public school superintendent by the parent … on a form provided by the superintendent ... which shall be countersigned by the administrator of the church school and returned to the public school superintendent by the parent.” Ala. Code § 16-28-7 (2014).   Additionally, the principal teacher of the church school must keep an attendance register for each day of the school year. Ala. Code § 16-28-8 (2014).  There is no statutory authority authorizing or requiring any state or local authority to regulate church schools, which may conduct classes as they see fit. Ala. Code § 16-1-11.1 (2014). There is no requirement that church school teachers be certified or that a church school be accredited by the state or any private agency. Ala. Code § 16-1-11.1(4) (2014). Other than the state laws requiring parents to report attendance and for church schools to report if a student is no longer in attendance at such a church school, there is no provision of Alabama law that permits or requires any state or local authority to regulate a church school. Ala. Code §§ 16-1-11.1(3), 16-1-11.3 (2014).

Here, JMHS is not affiliated with any church, and there is no evidence that Claimant’s parent has registered with the local school board, or that any certified attendance records are kept and provided to the local school board, as required by statute. Therefore, the information provided does not establish that Claimant is home schooled through a church school in accordance with Alabama law.

Option 2: Private School. A private school “[i]ncludes only such schools that are established, conducted, and supported by a nongovernmental entity or agency offering educational instruction in grades K-12, or any combination thereof, including preschool, through on-site or home programs.” Ala. Code § 16-28-1. Private schools must register annually by October 10 with the Alabama Department of Education and report the number of pupils, the number of instructors, enrollment, attendance, course of study, length of term, cost of tuition, funds, value of property, and the general condition of the school. Ala. Code § 16-1-11. Also, at the end of the fifth day from the opening of public school, the principal teacher of each private school must report to the county superintendent or city superintendent “the names and addresses of all children of mandatory school attendance age who have enrolled in such schools; and thereafter, throughout the compulsory attendance period, the principal teacher of each school … shall report at least weekly the names and addresses of all children of mandatory school attendance age who enroll in the school or who, having enrolled, were absent without being excused, or whose absence was not satisfactorily explained by the parent, guardian, or other person having control of the child.” Ala. §§ 16-28-7, 16-28-8.  The principal teacher of the private school must keep an attendance register for each school day of the year. Ala. Code § 16-28-8. 

JMHS is not affiliated with any private school, and there is no evidence that Claimant is included in the mandatory enrollment or attendance reporting statements of any private school. Ala. Code §§ 16-1-11, 16-28-7, 16-28-8.  There is also no indication that JMHS is registered with the state of Alabama as a private school, or that it provides any enrollment or attendance reports to county or city school superintendents in Alabama. Id.  Therefore, the information provided does not establish that Claimant is home schooled through an affiliation with a private school in accordance with Alabama law.

Option 3: Private Tutor.  A child also may be home schooled if instructed by a competent private tutor. See Ala. Code § 16-28-5.  The tutor must be a State certified teacher, teach “for at least three hours a day for 140 days each calendar year, between the hours of 8:00 a.m. and 4:00 p.m.,” file with the county superintendent a statement describing subjects taught and period of instruction, keep a register of the child’s work showing daily hours of instruction and attendance, and shall make such reports as the State Board of Education may require. Id.; see also Ala. Code § 16-28-7 (2014) (“the principal teacher of each public school, private school, and each private tutor, but not church school, shall report . . . the names and addresses of all children of mandatory school attendance age who have enrolled in such schools”).  To obtain a high school diploma, a child must have credits in such courses as English, algebra, and geometry or their equivalents; biology and a physical science; social studies; health education; career preparedness; and career and technical education, foreign language, or arts education. See Ala. Admin. Code § 290-3-1-.02(8) (2014).  Contents of courses not defined in the State course of study must be approved by the local board of education. Id.

No information has been submitted to demonstrate that Claimant is being taught under conditions that would satisfy Ala. Code § 16-28-5. In fact, the letter from JMHS indicates no tutors or other qualified instructors actively participate in Claimant’s education, as students work on their own at their own pace. No documentation has been provided to show that any of the instructors at JMHS maintains a valid Alabama teaching certificate.  There is also no indication that Claimant is being taught the requisite number of hours, or that her curriculum and attendance are being reported to the local school board. Therefore, the information provided does not establish that Claimant is home schooled by a private tutor in accordance with Alabama law.

Moreover, Claimant’s participation in JMHS does not appear to satisfy the independent study provisions of the regulations. See 20 C.F.R. § 404.367(a)(2). Independent study is a method of alternative secondary education used in some States. POMS RS 00205.285(A). Local education agencies, such as high schools or school districts, run independent study programs. Id.  Independent study programs are run “in accordance with specific State law requirements, and the credits earned count toward high school graduation.” Id. The programs involve periodic teacher contact, direction, and testing on campus, with the student making academic progress generally through independent study at home. Id. Nothing in the information provided suggests any local school or school district runs the JMHS program.  As such, Claimant’s use of the JMHS’s program does not seem to satisfy the independent study requirements.

CONCLUSION

Claimant has not demonstrated that JMHS is an educational institution under Georgia law. Additionally, it has not been demonstrated that the claiment is participating in a home school study program or independent study program in compliance with Alabama law.  The information provided also does not indicate Claimant meets the standards for full-time attendance. 

 Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By:   ____________

         Richard V. Blake

       Assistant Regional Counsel

Alabama law does not address home education specifically, but it provides two options under which parents can teach their children at home.

Option 1 - Affiliation with a Church School

Home schools may qualify as schools operated on a nonprofit basis as a ministry of a local church, group of churches, denomination, and/or association of churches that do not receive any state or federal funding. Under this option the parent must file the enrollment and attendance of a child in a church school with the local public school superintendent, using a form provided by the superintendent and countersigned by the administrator of the church school. Also, the principal teacher of the church school must maintain an attendance register for every day of the school year, and the church school must report if a student is no longer in attendance. There is no requirement that church school teachers be certified, and no state or government authority may regulate a church school.

Option 2 - Private Tutor

Under this option a home schooled child must be instructed by a state certified teacher for at least three hours per day between the hours of 8:00 a.m. and 4:00 p.m. for 140 days each calendar year. The teacher must file a statement with the county superintendent a statement that describes subjects taught and period of instruction, keep a register of the child's work showing daily hours of instruction and attendance, and make any reports required by the State Board of Education.

The local board of education must approve the content of courses not defined in the state course of study.

The parent should submit evidence of compliance with one of these two options.

Question Presented

In considering a claim for child's insurance benefits, you asked whether the home school that the child attends meets the requirements for recognition of a home school in Alabama.

Short Answer

Given the evidence presented and the applicable federal and state law, it does not appear that the claimant's home educational program complies with Alabama law. Therefore, the claimant would not qualify a full-time student in this case.

Background

The facts as presented are that H1~ (Claimant), an eighteen year old, has been receiving benefits on the record of the wage earner, H2~. Claimant resides with her grandmother in Chatom, Alabama. Claimant left Remnant Holiness Academy in May 2005 and has been enrolled with Penn Foster, a correspondence school located in Scranton, Pennsylvania, since July 2005. According to Claimant, she takes classes from Penn Foster such as childcare, catering, home interior, English, and basic math. Claimant takes her tests over the phone by answering questions through a key pad. Additionally, Claimant's grandmother reported she taught Claimant twenty hours or more per week in such things as baking, sewing, grocery shopping, and driving. Claimant is not registered with the local school board.

Applicable Law

To be eligible for child's insurance benefits, a claimant who is not disabled must be under the age of eighteen or a full-time elementary or secondary school student and under the age of nineteen. See Social Security Act (Act) § 202(d)(1)(B)(i), 42 U.S.C. § 402(d)(1)(B)(i); 20 C.F.R. § 404.350(a)(5) (2007). Although Claimant is currently eighteen years old, she alleges she is entitled to child insurance benefits because she is a full-time high school student at a home school. A child is a full-time student if she meets all of the following conditions:

You attend a school which provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located. Participation in the following programs also meets the requirements of this paragraph:

You are instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which you reside; or

You are in an independent study elementary or secondary education program in accordance with the law of the State or other jurisdiction in which you reside which is administered by the local school or school district/jurisdiction.

b) You are in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and are carrying a subject load which is considered full-time for day students under the institution's standards and procedures. If you are in a home schooling program . . . , you must be carrying a subject load which is considered full-time for day students under standards and practices set by the State or other jurisdiction in which you reside;

c) To be considered in full-time attendance, your scheduled attendance must be at a rate of at least 20 hours per week . . . .

d) You are not being paid while attending school by an employer who has requested or required that you attend school;

e) You are in grade 12 or below; and

f) You are not subject to the provisions . . . for nonpayment of benefits to certain prisoners and certain other inmates of publicly funded institutions.

20 C.F.R. § 404.367 (2007). Based on this provision and the relevant facts in this case, the only issue is whether Claimant attended a home school that meets the criteria of Alabama's home schooling laws.

Analysis

Under Alabama law, every child between the ages of seven and sixteen years is required to attend a public school, private school, church school, or be instructed by a competent private tutor. ALA. CODE § 16-28-3 (2006). Although Alabama's statutes do not explicitly address home education, homeschoolers can teach their children at home under one of two conditions: (1) by affiliating with a church school; or (2) as a private tutor, in which case they must have a valid Alabama teaching certificate. See ALA. CODE §§ 16-28-1, 16-28-5 (2006).

Option one: Church School. Home schools may qualify as "schools ... operated as a ministry of a local church, group of churches, denomination, and/or association of churches on a nonprofit basis which do not receive any state or federal funding." ALA. CODE § 16-28-1(2) (2006). A child attending a church school is exempt from the requirements of compulsory attendance provided the child complies with the procedure in section 16-28-7. ALA. CODE § 16-28-3 (2006). "The enrollment and attendance of a child in a church school must be filed with the local public school superintendent by the parent … on a form provided by the superintendent ... which shall be countersigned by the administrator of the church school." ALA. CODE § 16-28-7 (2006). Additionally, the principal teacher of the church school must keep an attendance register for each day of the school year. ALA. CODE § 16-28-8 (2006). According to an Alabama Attorney General's opinion dated January 3, 1997:

There is no statutory authority authorizing or requiring any state or local authority to regulate church schools, which may conduct classes as they see fit. There is no requirement that church school teachers be certified or that a church school be accredited by the state or any private agency. No state or government authority has the authority to regulate a church school.

Other than the state laws requiring parents to report attendance and for church schools to report if a student is no longer in attendance at such a church school, there is no provision of Alabama law that permits or requires any state or local authority to regulate a church school. 246 Ala. Op. Atty. Gen. 14, 1997 WL 1053990 (Ala. A.G.).

According to the information that you have supplied, it does not appear that Claimant's home school meets the requirements of a church school. There is no indication that Claimant's grandmother has enrolled her in an umbrella church school or has filed a signed enrollment or attendance form with the local public school superintendent. In this regard, Claimant has indicated that she is not registered with the local school board.

Option 2: Private Tutor. Under this option, a child in a home school must be instructed by a competent private tutor. ALA. CODE § 16-28-5 (2006). The tutor must be a state certified teacher, teach "for at least three hours a day for 140 days each calendar year, between the hours of 8:00 a.m. and 4:00 p.m.," file with the county superintendent a statement describing subjects taught and period of instruction, keep a register of the child's work showing daily hours of instruction and attendance, and shall make such reports as the State Board of Education may require. Id. To obtain a high school diploma, a child must have credits in such courses as English, algebra, geometry, biology, social studies, physical education, arts education. ALA. ADMIN. CODE § 290-3-1-.02(8) (2006). Contents of courses not defined in the state course of study must be approved by the local board of education. ALA. ADMIN. CODE § 290-3-1-.02(8) (2006).

Claimant has not presented SSA with sufficient proof to show that her home education program meets the requirements of a private tutor program. Claimant's grandmother is a registered nurse and presented no evidence that she is certified to teach by the state. As previously noted, Claimant is not registered with the local school board and has provided no evidence that her grandmother keeps a register showing her daily hours of instruction and attendance. Additionally, Claimant has presented no evidence to show instructors at Penn Foster are certified to teach in Alabama. Finally, although Claimant's grandmother indicated Claimant takes such courses as childcare, catering, home interior, English, and basic math, these courses do not appear to meet all of the required courses for a high school education in Alabama and there is no evidence that this curriculum has been approved by the local school board.

CONCLUSION

For the foregoing reasons, we do not believe that the documentation provided demonstrates compliance with the requirements of either a church school or a private tutor program under Alabama law. Therefore, Claimant's home schooling would not be considered a school that provides elementary or secondary education under Alabama law for the purposes of determining eligibility for child's insurance benefits.

Mary Ann Sloan

Regional Chief Counsel

By:_______________________

Joseph P. Palermo, III

Assistant Regional Counsel