Precedents regarding home schooling have been updated for Iowa, Nebraska, and Missouri:

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  To meet the definition of student, Iowa changed the law in 2013 to permit home schooling under independent private instruction with very little oversight in addition to the more regulated competent private instruction as was required prior to the law change. (Iowa Code §299A – Private Instruction);

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  Effective May 21, 2016, Nebraska is providing parents with forms that allow them to file for a home school exemption as an exempt school to the State’s compulsory attendance law. After providing the necessary information and affirmations, the State will provide parents with a letter of acknowledgment upon approval;

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  Missouri increased the compulsory school attendance age from 16 to 17 in 2009 (Missouri Annotated Statute Section 167.031); and

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  Kansas remains the same.

I. ISSUES PRESENTED

You asked for updates to the Iowa Regional Chief Counsel Precedents in POMS PR 08005.018 and PS 08005.018 – Iowa Home Schooling, based on amendments to Iowa Chapter 229A: Private Instruction, which were effective July 1, 2013. These precedents provide guidance on developing student status for home schooled students. Effective July 1, 2013, amendments to Iowa statutes established a new home schooling arrangement and made some other requirements optional. Based on our research, we offer the following analysis of the 2013 amendments and the updates needed to make POMS PR 08005.018 and PS 08005.018 consistent with current Iowa law on home schooling.

In addition to updating the Iowa precedents regarding home schooling, we have taken this opportunity to provide an update on home schooling procedures for the other three states in our region: Kansas, Nebraska, and Missouri. Our research revealed minor changes in Nebraska and Missouri law, and the analysis below contains guidance on the current law in these states.

II. Analysis

Section 202(d) of the Social Security Act (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 “was a full-time elementary or secondary student and had not attained the age of 19.” 42 U.S.C. § 402(d)(1)(B). The Act defines a full-time elementary or secondary student as “an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the [Commissioner] (in accordance with regulations prescribed by the Commissioner) in the light of the standards and practices of the schools involved . . . .” Id. at § 402(d)(7)(A). 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.” Id. at § 402(d)(7)(C)(i). Except for two specific exceptions noted in the Social Security regulations, the student must be scheduled to attend school for at least 20 hours per week in order to be considered a full-time student. See 20 C.F.R. § 404.367(c).

Effective July 24, 1996, the regulations were revised to specifically include students enrolled in home schooling or independent study programs authorized by state or local law. See 61 Fed. Reg. 38,361 (1996) (codified at 20 C.F.R. § 404.367 (1997)). The regulations allow child’s benefits to continue to age 19 if the child is being “instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [the child] reside[s].” 20 C.F.R. § 404.367(a)(1). The child must also carry “a subject load which is considered full-time for day students under standards and practices set by the State or other jurisdiction in which [the child] reside[s].” 20 C.F.R. § 404.367(b).

Iowa

For a child who has reached the age of 6 years and is under 16 years of age by September 15, Iowa requires compulsory attendance at a public school or an accredited nonpublic school, or the parent or guardian must place the child under competent private instruction or independent private instruction. See Iowa Code §§ 299.1, 299.1A (2016). If a child enrolled in a school district or accredited nonpublic school reaches the age of 16 on or after September 15, the child remains of compulsory age until the end of the regular school year. See Iowa Code § 299.1A.

Iowa statutes define “private instruction” as “instruction using a plan and a course of study in a setting other than a public or organized accredited nonpublic school.” Iowa Code § 299A.1(2)(c). This definition encompasses home schooling. Prior to July 1, 2013, Iowa recognized only “competent private instruction;” however, amendments effective July 1, 2013, established another type of private instruction, called “independent private instruction.” See Iowa Code § 299A.1(1); House File 215. Competent private instruction requires instruction on a daily basis for at least 148 days during a school year, to be met by attendance for at least 37 days each school quarter, by or under the supervision of a licensed practitioner or a nonlicensed person, which results in the student making adequate progress. Iowa Code § 299A.1(2)(a).

Competent private instruction encompasses dual enrollment and home school assistance programs. See Iowa Code §§ 299A.2, 299A.8, 299A.12. Dual enrollment involves enrollment of a child receiving competent private instruction with the school district for the purposes of attending courses, participating in extracurricular activities, or obtaining special education services. See Iowa Code § 299A.8; Iowa Department of Education, Private Instruction Handbook (Home Schooling or Enrollment in a Non-Accredited “School” 2016-2017 (Handbook) at 8 (available at https://www.educateiowa.gov/sites/files/ed/documents/2016-2017PrivateInstructionHandbook.pdf) (last visited Dec. 13, 2016). School districts may provide a home school assistance program, which involves employing one or more properly-licensed instructors to provide instruction or instructional supervision of competent private instruction. See Iowa Code § 299A.12; Handbook at 10.

For students receiving competent private instruction provided by a licensed practitioner, the licensed practitioner must possess a valid license that is appropriate for the age and grade level of the child, and the licensed practitioner is responsible for monitoring the child’s progress. Iowa Code § 299A.2; Iowa Department of Education, Handbook at 11 (available at https://www.educateiowa.gov/sites/files/ed/documents/2016-2017PrivateInstructionHandbook.pdf) (last visited Dec. 13, 2016). Students receiving competent private instruction provided by a licensed practitioner that is not in an accredited school or through a home school assistance program operated by a school district or accredited nonpublic school shall submit a report in duplicate to the public school district by September 1 of each school year. Iowa Code § 299.4. The report shall state the name and age of the child, the period of time during which the child will be under competent private instruction for the year, an outline of the course of study (subjects covered, lesson plans, and time spent on the areas of study), the texts used, and the name and address of the instructor. See id.

Children between the ages of 7 and 15, inclusive, who receive competent private instruction provided by a nonlicensed person, may, but are not required to, be assessed annually to determine if adequate progress is being made. Iowa Code §§ 299A.3, 299A.4; Handbook at 11. Annual assessment can include standardized testing, portfolio assessment, or submittal of a report card from an accredited correspondence school. Handbook at 11. In lieu of annual achievement evaluations, a parent, guardian, or legal custodian of a child may submit all of the following evidence of adequate academic process: (1) a book of lesson plans, a diary, or other written record indicating the subjects taught and the activities of the child; (2) a portfolio of the child’s work; and (3) completed assessment evaluations that are administered as part of the competent private instruction. Iowa Code § 299A.4(7). This evidence is then reviewed by a licensed Iowa practitioner. Id. In addition, a parent, guardian, or legal custodian of a child receiving competent private instruction provided by a nonlicensed person may, but is no longer required to, complete and send to the school district the report described in Iowa Code § 299.4 and referenced above. See Iowa Code § 299A.3.

By contrast, “independent private instruction” refers to instruction that meets the following criteria: (1) is not accredited; (2) enrolls not more than four unrelated students; (3) does not charge tuition or fees; (4) provides private or religious-based instruction as its primary purpose; (5) provides enrolled students with instruction in mathematics, reading and language arts, science, and social studies; (6) provides, upon written request from the superintendent of the school district in which the independent private instruction is provided, or from the director of the department of education, a report identifying the primary instructor, location, name of the authority responsible for the independent private instruction, and the names of the students enrolled; (7) is a nonpublic school and does not provide “competent private instruction” as described above; and (8) is exempt from all state statutes and administrative rules applicable to a school, a school board, or a school district, except as otherwise provided in chapter 299 and chapter 299A. Iowa Code § 299A.1(2)(b). Unlike competent private instruction, independent private instruction has no similar requirement for daily instruction. Handbook at 8. In addition, independent private instruction is exempt from annual assessment requirements. Id. at 8.

The Handbook provides additional guidance for distinguishing competent private instruction from independent private instruction. Per the Handbook, no form is required to enroll a child in independent private instruction in Iowa, although parents are advised to inform the local school district that they are choosing this option for education. See Handbook at 8. Independent private instruction instructors are responsible for their own students’ progress; however, there is no requirement to assess students annually or report to the school district or the Iowa Department of Education. See Handbook at 8. However, if requested in advance, the district shall make available courtesy standardized testing to students receiving independent private instruction. See Handbook at 4, 18. The superintendent of the district of residence of a student enrolled in independent private instruction, or the director of the Iowa Department of Education, may, but is not required to, make a written request for a report from a parent identifying the primary instructor, location, name of the authority responsible for the independent private instruction, and the names of the students enrolled. See Iowa Code § 299A.1(2)(b)(6); Handbook at 4, 8, 18. Although independent private instruction must cover the four required content areas of mathematics, reading and language arts, science, and social studies, the school district has no right to request documentation confirming that those areas are covered in the instruction provided. See Iowa Code § 299A.1(2)(b)(5); Handbook at 7-8.

In summary, as discussed above, under changes to Iowa law in 2013, home schooling in Iowa is no longer limited to competent private instruction. As of July 1, 2013, with passage of House File 215, independent private instruction meets the statutory requirements for home schooling in Iowa, and there is very little state oversight of home schools operating under independent private instruction. In addition, reporting and assessment requirements are no longer mandatory for competent private instruction provided by a nonlicensed practitioner.

Kansas

According to the Kansas Department of Education, Kansas does not specifically authorize “home schooling” by statute, but instead recognizes “non-accredited private schools” as a mechanism for allowing home instruction. See Kansas Department of Education, Homeschooling in Kansas, (available at http://www.ksde.org/Portals/0/ECSETS/FactSheets/FactSheet-HomeSchool.pdf) (last visited Dec. 13, 2016); Kan. Stat. Ann. §§ 72-53,100-102 (2016). Non-accredited school attendance can satisfy state compulsory attendance laws. See id; see also Kan. Stat. Ann. § 77-1111. Instructors in non-accredited schools need not be certified as teachers by the state, but they must be “competent instructors.” Id. Registration consists of filling out a form provided by the State, and the State retains a record of the non-accredited schools. Id. Registration may be made online. See Kansas Department of Education, Non-Accredited Private School Online Registration, (available at https://apps.ksde.org/naps_form/default.aspx) (last visited Dec. 13, 2016).

Kansas law compels school attendance for children between the ages of 7 and 18.

See Kan. Stat. Ann. § 72-1111. There are exceptions for certain children, including what is popularly referred to as an “Amish” exception that provides for the cessation of schooling after eighth grade for some children. See id. Private schools must have a school year that is substantially similar in length to that of a public school. See id.; Kan. Stat. Ann. § 72-1106. A public school student must attend 186 days of school through eleventh grade totaling 1,186 hours per year, and 181 days of school in twelfth grade, totaling 1,086 hours per year.

See Kan. Stat. Ann. § 72-1106.

As stated in our previous opinions, In re Sawyer, 672 P.2d 1093 (Kan. 1983), remains the only Kansas Supreme Court or appellate case in this area as no other appellate case has addressed private non-accredited instruction since that time. In Sawyer, the Court held that two children were “in need of care” because they were not attending school as required by the statute. See id. School sessions only lasted a half day. See id. at 1095-96. The education activities were unaccredited, unplanned, and unscheduled, and the teacher was uncertified. See id. at 1095-97. The Court noted that teachers need not be certified, but cited a prior case in which a teacher with a Kansas teaching certificate was found to be a “competent” instructor. See id. at 1097 (citing State v. Lowry, 383 P.2d 962 (Kan. 1963) (teacher competent, but private school invalid for curriculum reasons since eliminated by the Legislature)). Following Sawyer through 1994, three district courts held that non-accredited private schools conducted in the home were bona fide private schools using competent instructors, and no home schools were determined to be invalid. See David S. Adams, Home Schooling in Kansas, Friend or Foe, Journal of the Kansas Bar Association, February/March 1994. We were unable to find cases after that date that addressed the validity of non-accredited private schools in Kansas.

On November 21, 1985, shortly after Sawyer, in an opinion prepared for the Johnson County District Attorney, Dennis Moore, the Kansas Attorney General stated that their office recognized that home instruction was widespread across Kansas. See Kan. Atty. Gen. Op. No. 85-159 (available at http://ksag.washburnlaw.edu/opinions/1985/1985-159.pdf) (last visited Dec. 13, 2016). The Attorney General opined that there was no authority for local school board oversight or inspection of home schools. See id. The proper remedy if a child was not attending school in the manner set forth in the compulsory attendance law was for the Kansas Department for Children and Families (KDCF) (formerly the State Department of Social and Rehabilitative Services (SRS)) to investigate. See id. The Attorney General stated that even considering Sawyer, it cannot be automatically assumed that all home instruction violates Kansas law, and that KDCF had a duty to apply the factors set forth in Sawyer to determine whether a violation of compulsory school instruction had occurred. See id.

Nebraska

Nebraska requires compulsory regular attendance at public, private, denominational, or parochial school for children of mandatory attendance age. See Neb. Rev. Stat. § 79-201(2) (2016). A child is of mandatory attendance age if the child (a) will reach 6 years of age prior to January 1 of the then-current school year and (b) has not reached 18 years of age. See Neb. Rev. Stat.

§ 79-201(1). Such compulsory regular attendance can be satisfied by attendance at a school that elects to not meet accreditation or approval requirements. See Neb. Rev. Stat. § 79-201(2). “In Nebraska, ‘home schools’ are referred to as exempt schools and are considered non-approved or non-accredited schools.” Nebraska Department of Education, Exempt (Home) School Program, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited on Dec. 13, 2016).

Section 79-1601(3) of the Nebraska statutes provides that private, denominational, or parochial schools may elect not to meet state accreditation or approval requirements. However, such elections are only effective if the parents or legal guardians of children attending such schools submit a statement to the Commissioner of Education that the state accreditation or approval requirements either: (1) violate sincerely held religious beliefs of the parents, or (2) interfere with the decisions of the parents or in directing the student’s education. See Neb. Rev. Stat.

§ 79-1601(3). In addition, parents seeking exemption must affirm that they will meet minimum health and safety requirements, teach specific subjects, and report attendance. See id. at § 79-1601(3)-(4). Individuals instructing students are not required to meet the state certification requirements for teachers. See id. at § 79-1601(5). However, evidence of competence to provide instruction must be provided by other means. See id.

Effective May 21, 2016, Title 92 of the Nebraska Administrative Code was amended, making Rule 13 the current rule governing the procedures and standards for parents (or legal guardians) filing for an exemption. See Title 92, Neb. Admin. Code, Ch. 13 (2016); Nebraska Department of Education., Exempt (Home) School Program, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited on Dec. 13, 2016). The Nebraska Department of Education has developed forms for the parent to complete attesting that the home school meets the requirements to qualify as an exempt school. Changes effective May 21, 2016, also revised the due date for filing these forms with the Nebraska Department of Education to July 15 annually. See id. The forms are available online at the Nebraska Department of Education website. See Nebraska Department of Education, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited Dec. 13, 2016).

These forms include a statement of election regarding the decision to home school (religious reasons or non-religious reasons) and information regarding the child’s age and the name and address of the exempt school. The forms also include affirmations regarding annual filing requirements; the proper sequential instruction in the language arts, mathematics, science, social studies, and health; and the competency of those monitoring instruction to teach the above subjects. The forms also require the parent or legal guardian to include the dates of operation of the exempt school, which must allow sufficient time to meet the required minimum hours of instruction of 1,032 in elementary schools and 1,080 in secondary schools. See Form A: Parent or Guardian Form; 2016/17 Information Summary for Parent Representative, (available at https://www.education.ne.gov/fos/OrgServices/ExemptSchools/Downloads/1617/R13_Checklist_and_Forms.pdf) (citing Title 92, Neb. Admin. Code, Ch. 13) (last visited Dec. 13, 2016). Upon approval, the State Commissioner of Education will send a Letter of Acknowledgment to the parent. See Nebraska Department of Education, Exempt (Home) School Frequently Asked Questions (FAQs) (2016/17 School Year) at 7 (available at https://www.education.ne.gov/FOS/OrgServices/ExemptSchools/Downloads/1617/FAQs.pdf) (last visited Dec. 13, 2016).

The administrative rules provide that a parent must apply for exempt status only until the child reaches age 18. Once the child reaches age 18, compulsory education under Nebraska law is no longer required; therefore, filing for exempt status is no longer required.

Missouri

Under Missouri law, any parent may educate a child at home and the parent does not need to have a teaching certificate or meet any educational requirements. See Mo. Ann. Stat. § 167.031 (2016); Missouri Department of Elementary and Secondary Education, “Home Schooling,” (available at https://dese.mo.gov/governmental-affairs/home-schooling) (last visited Dec. 13, 2016). In 2009, the compulsory attendance age increased from 16 years of age to 17 years of age, or once the student successfully completes 16 credits toward high school graduation. See id.; 2009 Mo. Legis. Serv. S.B. 291. A child between 7 and 17 years of age must attend some combination of public, private, parochial, or home school. See Mo. Ann. Stat. § 167.031.

Under Missouri law, a “home school” is a school, whether incorporated or unincorporated, that: (a) has as its primary purpose the provision of private or religious-based instruction; (b) enrolls pupils between the ages of 7 and 17 years, of which no more than 4 are unrelated by affinity or consanguinity in the third degree; and (c) does not charge or receive consideration in the form of tuition, fees, or other remuneration in a genuine and fair exchange for provision of instruction. See id.

As evidence that a child is receiving regular instruction, Missouri statutes require the parent to maintain the following records: (a) a plan book, diary, or other written record indicating subjects taught and activities engaged in; (b) a portfolio of samples of the child’s academic work; and (c) a record of evaluations of the child’s academic progress. See Mo. Ann. Stat. § 167.031.2.(2)(a). In the alternative, the parent may maintain other written, or credible evidence equivalent to the evidence listed above. See id. The statute does not require this proof for children above the age of 16. See Mo. Ann. Stat. § 167.031.2(3). Moreover, a parent’s statement that such a child is in school is a defense against a prosecution for educational neglect. See Mo. Ann. Stat.

§ 167.031.5.

The home school instruction must include at least 1,000 “hours of instruction” during the school year (July 1 and ending the next June 30), and at least 600 hours of this must be in reading, language arts, mathematics, social studies, and science, or academic courses that are related to these subjects and compatible with the pupil's age and ability. At least 400 of the 600 hours must occur at the regular home school location. See Mo. Ann. Stat. § 167.031.2(2)(b).

There is no Missouri statute that requires the parent or guardian to seek written approval from the school board to home school the child. There is also no requirement that the home school must register with the state; however, Missouri statute states that a parent or legal guardian may notify the superintendent of schools or the recorder of the county of deeds, in the county where the child legally resides, of their intent to home school within 30 days after the establishment of the home school and by September 1 annually thereafter. See Mo. Ann. Stat. § 167.042. The notice should include the name and age of each child attending the home school, the address and telephone number of the home school, the name of each person teaching in the home school, and the name, address, and signature of each person making the declaration of enrollment. See id. Home-schooled students do not register with the Department of Elementary and Secondary Education. See Missouri Department of Elementary and Secondary Education, “Home Schooling,” (available at https://dese.mo.gov/governmental-affairs/home-schooling) (last visited Dec. 13, 2016).

III. Conclusion

If you have any further questions, or if you have questions about applying the requirements in Iowa or any of the other states in our region to the facts of a specific case, please feel free to contact us.

Kristi A. Schmidt

Chief Counsel, Region VII

By: Meghan J. McEvoy

Assistant Regional Counsel

Kansas statutes do not recognize home schooling; the statutes do, however, provide the following exceptions to the compulsory school attendance laws:

* A home school may register as a non-accredited private school, in which case it must meet state health and safety requirements and the student must attend this school for a period of time substantially equal to the period of time public school is in session.

In order to determine whether a student attending a home school in Kansas can qualify for student benefits based on attendance at a home school registered as a non-accredited private school, contact the Kansas State Department of Education to determine if the school meets the requirements of the state's compulsory attendance laws.

* A recognized church or religious denomination that objects to a regular high school public education may provide, offer, and teach a regularly supervised program of instruction, approved by the State Department of Education, for children of compulsory school age who have successfully completed the eighth grade. The statute that allows this exception requires acceptable learning activities, hours of instruction, and record-keeping.

In order to determine whether a student attending a home school in Kansas can qualify for student benefits based on this exception, contact the Kansas State Department of Education to determine whether it has approved the student's program of instruction.

In all cases, the student must also meet all other requirements for student benefits.

You have asked us whether a home schooling situation in Kansas qualifies under Section 202(d)(8) of the Social Security Act (the Act), 42 U.S.C. § 402(d)(7), as a school that provides elementary or secondary education in accordance with the laws of the state so that benefits can continue beyond age 18. Based on our analysis of Kansas statutes and case law, we believe that the child is entitled to continued benefits.

Factual Background

This case involves an application for student child benefits filed by Nichole H~ on the record of her father, David H~. Teresa H~, mother and home schooling instructor, completed form SSA-1371, dated December 7, 2000, certifying Nichole's school attendance of 40 hours per week and indicating that Nichole was, currently and at all relevant times, in "full-time attendance" according to the school's standards and practices. Nichole attained age 18 on February XX, 2001. Nichole's current school year runs from August 14, 2000 to May 14, 2001. A copy of the school's registration as a nonaccredited, private school with the Kansas State Board of Education was provided.

In a report of contact dated November 29, 2000, Ms. H~ indicated that the school year extends for 40 weeks. She is the home school teacher for her three children, including Nichole, and she schedules the week, teaches, advises, makes assignments, and grades their work. Ms. H~ has her high school diploma, but no teaching credentials or college degree. Course material in this case is provided by the Christian Liberty Academy (the Academy), Arlington Heights, Illinois, which is recognized as an educational institution for Social Security purposes in the states of Illinois and Texas. Ms. H~ reports that the Academy has required coursework and curriculum that must be followed and sent into the school for proof of completion and grading. Ms. H~ grades the daily assignments and sends those grades to the Academy. Nichole has already fulfilled the Math and Science requirements. Her current subjects include, Bible, Reading, Economics, Grammar, and History. Nichole is also reading a book on "writing a research paper." Additionally, she must submit five book reports a year to the Academy. Nichole's extra-curricular activities are Physical Education and Art.

Ms. H~ reported that she decided to home school Nichole for religious reasons. She has home schooled Nichole since the sixth grade. She said she tries to spend around two to two and one-half hours each day teaching Nichole. Nichole attends five days of school a week with an average of eight hours per day.

Nichole's tests, research papers, and book reports must be sent in and graded by the Academy. The Academy assigns grades and maintains a transcript for Nichole. The Academy verified that Nichole is currently enrolled in the twelfth grade. To obtain a high school diploma from the Academy, the requirements are four credits of English, two and one-half credits of Economics, two credits of Government, four credits of History, four credits of the Bible, two credits of Science, two credits of Math, and four years of Art, Music, and Physical Education. Nichole will have met all of these requirements by May 14, 2001.

Nichole's transcripts from the Academy reveal that she has obtained almost all A's and B's in her studies. Moreover, on her California Achievement Tests, Nichole has generally scored at her grade level or above. In an SSA-1372-F4 dated October 20, 2000, Nichole indicated that she works at Sonic Drive In, but did not expect her earning to be more than $10,080 this year.

Analysis

Section 202(d) of the Act provides that child's insurance benefits usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6) and (7). Entitlement to child's benefits may continue, however, if (among other things) the child "was a full-time elementary or secondary student and had not attained the age of 19." See 42 U.S.C. § 402(d)(1). A full-time elementary or secondary student is defined as "an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the [Commissioner] (in accordance with regulations prescribed by him) in the light of the standards and practices of the schools involved . . ." Id. at § 402(d)(7)(A). An 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." Id. at

§ 402(d)(7)(C)(i). Except for two specific exceptions noted in the Social Security regulations, the student must be scheduled to attend school for at least 20 hours per week in order to be considered a full-time student. See 20 C.F.R. § 404.367(c)(2000).

The Commissioner's regulations allow child's benefits to continue to age 19 if the child is being "instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [the child] reside[s]." See 20 C.F.R. § 404.367(a)(1)(2000). If the child is in a home school program as described in this section, he or she "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 [the child] reside[s]." Id. at § 404.367(b).

Kansas's statutes do not contain a home school law and the Kansas legislature has not specifically addressed home schooling. According to Kansas statutes, a child under age 16 must attend continuously each school year either a public school or "a private, denominational or parochial school taught by a competent instructor for a period of time which is substantially equivalent to the period of time public school is maintained . . ." See Kan. Stat. Ann. § 72-1111(a) (Supp. 1999). The statutes do not define "competent instructor." A school term consists of 186 school days, not less than six hours per day, for grades kindergarten through eleven, and 181 school days, not less than six hours per day for grade 12. In the alternative, a school term may consist of 1116 hours per year for grades one through eleven, and 1086 hours per year for grade 12. See Kan. Stat. Ann. § 72-1106 (Supp. 1999). The statutes do not require nonpublic schools to be accredited, and they do not require teachers in nonpublic schools to be certified. In addition, only accredited public, private or parochial schools are specifically required to instruct pupils in certain subjects. Id. at §§ 72-1101 and 72-1103.

Kansas statutes provide specific exceptions from compulsory attendance for "exceptional" children under the state's special education act. Id. at § 72-1111(c). Another exception is made for a "recognized church or religious denomination that objects to a regular public high school education," and who provides, offers and teaches, either individually or in cooperation with another recognized church or religious denomination, a regularly supervised program of instruction, which is approved by the state board of education, for children of compulsory school attendance age who have successfully completed the eighth grade[.] Id. at § 72-1111(e). These programs must be approved by the state board of education for two-year periods, upon application from "recognized churches and religious denominations." The statute designates acceptable learning activities, required hours of instruction, and record-keeping requirements. Id. There is no evidence to indicate that the home school program for Nichole is in compliance with this section.

An examination of state case law shows that Kansas courts have strictly construed the state's compulsory attendance statutes. In State v. Lowry, 383 P.2d 962 (Kan. 1963), the court held that any school, in order to be classified as a private school, must at least meet the course requirements of § 72-1193 (which was later amended to apply only to accredited schools), and the children must be taught by a competent instructor. Id. at 965. The court found that these requirements were "sketchy." Id. The parent-teacher in this case was a certified teacher who had previously taught in the public schools of Kansas. Id. at 963. The court stated that the parents' attempt to operate a private school for their children resulted in "mere scheduled home instruction" which did not meet statutory course requirements, even though the instruction was by a competent instructor. Id. at 965.

In State v. Garber, 419 P.2d 896 (Kan. 1966), the court held that even if a system of education which consisted essentially of home instruction was considered as instruction equivalent to that given in a public, private, denominational or parochial school, as required by the compulsory school attendance law, such would not constitute an excuse for nonattendance, because the legislature had made no provision for home instruction as the basis for an exemption from compulsory attendance. Id. at 900. The court noted that the state's prior compulsory attendance act had included a provision for home instruction, but the later act eliminated home instruction as an exemption. Id. at 899.

In In re Sawyer, 672 P.2d 1093 (Kan. 1983), the parents had organized their own private school, incorporated the school, enrolled their children, and registered the school as a private elementary school. Id. at 1094. The S~ decided to have their school-age children remain at home for instruction because of dissatisfaction with their son's progress in the local school. Id. The Court noted that there was no schedule as to the timing of classroom activities and, the mother, who was the only teacher at the school, was also providing care of two children in the home, who were under five years of age. Id. Further, the court noted that the S~ two older children were the only students enrolled at the school. Id. The courses taught included the statutory courses required of accredited schools in Kansas. Id.

Ms. S~ did not have a college degree or a teaching certificate; nor did she have teaching experience. Id. She had one and one-half years of college education and graduated from high school with a 3.5 grade point average on a 4.0 scale. Id. The teaching schedule varied from day to day. Id. School usually lasted only half a day; sometimes classes commenced at 8:00 a.m., sometimes at 9:30 a.m., depending on the demands of housework and the two smaller children who sat in on the classes. Id. at 1095-96. The two students, though three years different in age, were in the same class. Id. at 1096. The school had no access to a counselor, psychiatrist, or special education instructor. Id. The evidence also revealed a very minimum of lesson planning. Id. Although noting that Kansas statutes do not require nonpublic schools to be accredited, nor require teachers in nonpublic schools to be certified, the court found that the home instruction by Ms. S~ was not a school within the meaning of Kan. Stat. Ann. § 72-1111, because the school was in the S~ home, unaccredited, run by an uncertified teacher with no teaching experience, had only the S~ children as students, combined the babysitting of two smaller children with the attempt to teach the older children, and had no testing, planning, or scheduling. Id. at 1096-97. The only goal of the arrangement was to extricate the son from his failure in public school. Id. After noting that the legislature had eliminated the home study exemption from the compulsory attendance law, the court stated: "We find the S~' plan, though well intentioned, a thinly veiled subterfuge attacking compulsory school attendance. If such a family arrangement will serve as a substitute for school, there is no compulsory school attendance. Clearly the legislature intends to maintain compulsory education." Id. at 1096-97.

The home schooling issue has not been raised in Kansas courts since 1983. The Kansas Supreme Court to date, however, has not recognized home schooling as an acceptable "private, denominational or parochial school." However, because Sawyer may be read to indicate that certain home instruction may constitute a private school for purposes of the compulsory school attendance law, it cannot automatically be assumed that all home instruction violates the compulsory school attendance law. Kansas statutes do recognize nonaccredited, private schools. The statutes applicable to this section provide that a private elementary or secondary school means "an organization which regularly offers education at the elementary or secondary level and attendance at which satisfies the compulsory school attendance laws of this state, but which is not accredited by the state board of education." See Kan. Stat. Ann. § 72- 53,100 (Supp. 1999) (emphasis added). The statute requires registration of the nonaccredited, private school. Id. at § 72-53,101.

On February 20, 2001, we contacted Kevin I~, an attorney in the Legal Department of the Kansas State Department of Education, regarding the state's view of home schooling.

Mr. I~ stated that home schooling is not "officially" recognized in the state. The state does allow, however, a home school to register as a nonaccredited, private school under Kan. Stat. Ann. § 72-53,101. The only state requirements for nonaccredited, private schools are those relating to health and safety. There are no minimum course requirements for any private school, and there are no sanctions imposed if the nonaccredited, private school does not register in accordance with § 72-53,101.

Mr. I~ stated, however, that the private/home school must still be in session for a period of time which is "substantially equivalent to the period of time public school is maintained in the school district in which the private, denominational or parochial school is located." See Kan. Stat. Ann. § 72-1111(a). Mr. I~ estimated that school attendance which was within five percent of the state's requirements would qualify as "substantially equivalent" attendance.

Mr. I~ stated that the state's compulsory attendance laws are enforced by the Kansas State Department of Social and Rehabilitation Services (SRS). He indicated that he believed that many home schools are operating in the state which are not in compliance with the state's compulsory attendance statute, but that SRS does not have the time or resources to enforce compulsory attendance of these schools.

Based on our examination of the applicable Kansas statutes, Kansas case law, contact with the Kansas State Department of Education, and Social Security regulations, we believe that Nichole H~ is eligible for child's benefits beyond age 18. Nichole's home school is more than "a thinly veiled subterfuge attacking compulsory school attendance," as denounced by Sawyer and it appears to meet the requirements for a private school pursuant to Kansas law.

Nichole's home school is registered as a nonaccredited, private school with the Kansas State Board of Education. See Kan. Stat. Ann. § 72-53, 101. Also, Nichole's attendance at her home school meets the statutory requirements set forth in Kan. Stat. Ann. § 72-1106. As previously discussed, the statute provides that a school term consists of 1116 hours per year for grades kindergarten through eleven and 1086 hours for grade 12, or 186 days (six hours per day) for grades kindergarten through eleven and 181 days (six hours per day) for grade 12. Id. Nichole is home schooled eight hours a day, five days a week. Additionally, her school year is for 40 weeks for a total of 200 days or 1200 hours in the school year. This meets the Kansas mandatory attendance requirements. See Kan. Stat. Ann. § 72-1106. Mr. I~ of the Kansas State Department of Education opined that a home school could be within five percent of the state's mandatory attendance laws and meet the requirements for "substantially equivalent" attendance. Kan. Stat. Ann. § 72-1111(a). The Social Security regulations require only 20 hours of attendance per week for full-time attendance. 20 C.F.R. §§ 404.367(b) and (c).

The compulsory attendance statute also requires that a private school be taught by a competent instructor. See Kan. Stat. Ann. § 72-1111(a). As previously discussed, Kansas statutes do not define "competent instructor." Kansas has previously declined to find that home instruction qualified as a private school when the instructor was a certified teacher and also when the teacher was not a certified teacher. See In re Sawyer, 672 P.2d 1093 (Kan. 1983); State v. Garber, 419 P.2d 896 (Kan. 1966); and State v. Lowry, 383 P.2d 962 (Kan. 1963). Nevertheless, we believe a strong case could be made that Ms. H~ is a competent instructor, based on her experience in running a home school for her three children, for the previous six years. Moreover, Nichole's grades, as well as her good performance on the California Achievement Test, demonstrate that Ms. H~ is a competent instructor.

Although nonpublic schools are not required to follow any mandatory curriculum under Kansas law, the S~ court still considered this factor. Id. at 1097; Kan. Stat. Ann. §§ 72-1101 and 72-1103. Nichole's coursework appears to meet the statutory requirements for accredited schools. Pursuant to Kan. Stat. Ann. § 72-1103, course requirements necessary for graduation from an accredited high school include instruction in civil government, United States history, patriotism and the duties of a citizen, government and institutions of the United States, and the constitution of the United States. Nichole is undergoing coursework in United States History and her school requires two credits of government and four credits of History. She also must have four credits of English, two and one-half credits of Economics, four credits of the Bible, two credits of Science, two credits of Math, and four years of Art, Music and Physical Education. Nichole will have met all of these requirements as of May 14, 2001.

Moreover, in contrast to the unplanned and unscheduled home school in Sawyer, Nichole's school program is structured and organized. Nichole has regular school hours. Ms. H~ makes a schedule for the week. She teaches, advises, makes assignments, and grades daily work. Ms. H~ teaches Nichole for two to two and one-half hours each day and has home schooled Nichole since her sixth grade year. The Academy, which is recognized as an educational institution for SSA purposes in Texas and Illinois, grades Nichole's tests, research papers, and book reports. The Academy assigns grades, maintains a transcript for Nichole, and has required coursework for graduation. Nichole also takes the California Achievement Test on a yearly basis. Although Nichole's home school is not accredited, there are no such requirements for nonpublic schools. See Sawyer, 672 P.2d at 1096.

Based on the above analysis, we believe that this home schooling situation qualifies as an educational institution and that child's benefits can continue beyond age 18.

Kristi A. S~
Acting Chief Counsel, Region VII

By Susan M~
Assistant Regional Counsel

KANSAS: The Kansas State Legislature does not officially recognize home schooling. However, the state does allow a home school to register as a non-accredited private school. The only state requirements for non-accredited private schools are those relating to health and safety. However, the non-accredited private school must be in session for a period of time which is equivalent to the period of time public school is in session in the district in which the non-accredited private school is located.

Therefore, in order to determine if a home school in Kansas can be considered an educational institution for student benefits, contact:

The Kansas State Department of Education to determine if the school is registered with the State, and The Kansas State Department of Social and Rehabilitation Services to determine if the school meets the state's compulsory attendance requirements.

You have requested our opinion as to whether a home schooling situation in Kansas qualifies under section 202(d)(7) of the Social Security Act (the Act), 42 U.S.C. § 402(d)(7), as a school that provides elementary or secondary education in accordance with the laws of the state. In addition to answering your question, we have taken this opportunity to update our prior memorandum dated September 25, 1992, regarding home schooling in Iowa, Kansas, Missouri, and Nebraska. See Memorandum, "Home Schooling in Iowa. Kansas, Missouri, and Nebraska,' Region VII (S~ & Y~) to ARC, SSA, September 25, 1992.

Section 202(d) of the Act provides that child's insurance benefits usually terminate when the child attains age 18. 42 U.S.C. § 402(d)(6) and (7). Entitlement to child's benefits may continue, however, if (among other things) the child "was a full-time elementary or secondary student and had not attained the age of 19." 42 U.S.C. § 402(d)(1). A full-time elementary or secondary student is defined as "an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the [Commissioner] (in accordance with regulations prescribed by him) in the light of the standards and practices of the schools involved. . ." Id. at § 402(d)(7)(A). An 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." Id. at § 402(d)(7)(C)(i). Except for two specific exceptions noted in the Social Security regulations, the student must be scheduled to attend school for at least twenty hours per week in order to be considered a full-time student. 20 C.F.R. § 404.367(c) (1997).

Effective July 24, 1996, the regulations were revised to specifically include students enrolled in home schooling or independent study programs authorized by state or local law. 61 Fed. Reg. 38,361 (1996) (codified at 20 C.F.R. § 404.367 (1997)). The regulations now allow child's benefits to continue to age 19 if the child 15 being 'instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [the child] reside[s]." 20 C.F.R. § 404.367(a)(1) (1997). If the child is in a home schooling program as described in this section, he or she '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 [the child] reside[s]." Id. at § 404. 367(b).

KANSAS

The Kansas legislature has not specifically addressed home schooling. According to Kansas statutes, a child under age 16 must attend continuously each school year either a public school or "a private, denominational or parochial school taught by a competent instructor for a period of time which is substantially equivalent to the period of time public school is maintained. . ." Kan. Stat. Ann. § 72-1111(a) (Supp. 1996). The statutes do not define "competent instructor." A school term consists of 186 school days. not less than six hours per day, for grades kindergarten through eleven, and 181 school days. not less than six hours per day for grade 12. In the alternative, a school term may consist of 1116 hours per year for grades one through eleven, and 1086 hours per year for grade 12. Kan. Stat. Ann. § 72-1106 (Supp. 1996). The statutes do not require nonpublic schools to be accredited, and they do not require teachers in nonpublic schools to be certified. In addition, only accredited public, private or parochial schools are specifically required to instruct pupils in certain subjects. T~. at §§ 72-1 101 and 72-1103.

Kansas statutes provide specific exceptions from compulsory attendance for ~'exceptional" children under the state's special education act. Id. at § 72-1111(c). Another exception is made for a "recognized church or religious denomination that objects to a regular public high school education," and who provides, offers and teaches, either individually or in cooperation with another recognized church or religious denomination, a regularly supervised program of instruction, which is approved by the state board of education, for children of compulsory school attendance age who have successfully completed the eighth grade[.]

Id. at § 72-1 111(e). These programs must be approved by the state board of education for two-year periods, upon application from "recognized churches and religious denominations." The statute designates acceptable learning activities, required hours of instruction, and record-keeping requirements. Id. There is no evidence one way or the other to indicate that the F~'s have complied with this section.

An examination of state case law shows that Kansas courts have strictly construed the state's compulsory attendance statutes. In State v. Lowry, 383 P.2d 962 (Kan. 1963), the court held that any school, in order to be classified as a private school, must at least meet the course requirements of § 72-1 193 (which was later amended to apply only to accredited schools), and the children must be taught by a competent instructor. Id. at 965. The parent-teacher in this case was a certified teacher who had previously taught in the public schools of Kansas. Id. at 963. The court stated that the parents' attempt to operate a private school for their children resulted in "mere scheduled home instruction" which did not meet statutory course requirements, even though the instruction was by a competent instructor. Id. at 965.

In State v. Garber, 419 P.2d 896 (Kan. 1966), the court held that even if a system of education which consisted essentially of home instruction was considered as instruction equivalent to that given in a public, private, denominational or parochial school, as required by the compulsory school attendance law, such would not constitute an excuse for nonattendance, because the legislature had made no provision for home instruction as the basis for an exemption from compulsory attendance. Id. at 900. The court noted that the state's prior compulsory attendance act had included a provision for home instruction, but the later act eliminated home instruction as an exemption. Id. at 899.

In re Sawyer, 672 P.2d 1093 (Kan. 1983), the parents had organized their own private school, incorporated the school, enrolled their children, and registered the school as a private elementary school. Id. at 1094. The court found that a system of education which consisted only of unaccredited, unplanned, and unscheduled home instruction with an uncertified teacher did not satisfy the requirements of the compulsory school attendance statute. Id. at 1097. After noting that the legislature had eliminated the home study exemption from the compulsory attendance law, the court stated: "If such a family arrangement will serve as a substitute for school, there is no compulsory school attendance. Clearly the legislature intends to maintain compulsory education." Id. at 1096-97.

The home schooling issue has not been raised in Kansas courts since 1983. The Kansas Supreme Court to date, however, has not recognized home schooling as an acceptable 'private, denominational or parochial school." Kansas statutes do recognize nonaccredited, private schools. The statutes applicable to this section provide that a private elementary or secondary school means "an organization which regularly offers education at the elementary or secondary level and attendance at which satisfies the compulsory school attendance laws of this state, but which is not accredited by the state board of education." (emphasis added) Kan. Stat. Ann. § 72- 53,100 (Supp. 1996). The statute requires registration of the nonaccredited, private school. Id. at § 72-53,101.

On December 18, 1997, we contacted Kevin I~, an attorney in the Legal Department of the Kansas State Department of Education, regarding the state's view of home schooling. Mr. I~ stated that home schooling is not "officially" recognized in the state. The state does allow, however, a home school to register as a nonaccredited, private school under Kan. Stat. Ann. § 72-53,101. The only state requirements for nonaccredited, private schools are those relating to health and safety. The Kansas State Department of Education informed us that the F~'s have registered their home school as a nonaccredited, private school. There are no minimum course requirements for any private school, and there are no sanctions imposed if the nonaccredited, private school does not register in accordance with § 72-53,101. Mr. I~ stated, however, that the private/home school must still be in session for a period of time which is 'substantially equivalent to the period of time public school is maintained in the school district in which the private, denominational or parochial school is located ' Kan Stat. Ann. § 72-1111(a). The Kansas statutes require that a school term must consist of 186 school days, not less than six hours per day for grades kindergarten through eleven, and 181 school days, not less than six hours per day for grade 12. In the alternative, the school term must consist of 1116 hours per year for grades one through eleven, and 1086 hours per year for grade 12. Kan. Stat. Ann. § 72-1106(a) and (b) (Supp. 1996). Mr. I~ estimated that school attendance which was within five percent of the state's requirements would qualify as 'substantially equivalent' attendance.

Mr. I~ stated that the state's compulsory attendance laws are enforced by the Kansas State Department of Social and Rehabilitation Services (SRS). He indicated that he believed that many home schools are operating in the state which are not in compliance with the state's compulsory attendance statute, but that SRS does not have the time or resources to enforce compulsory attendance of these schools.

Based on our examination of the applicable Kansas statutes, Kansas case law, contact with the Kansas State Department of Education, and Social Security regulations, we do not believe that Christopher P. F~ is eligible for child's benefits beyond age 18. The materials you submitted show that Christopher was entitled to child's benefits on account number ~. He attained age 18 on September XX, 1997. He completed an SSA-1372-F4 in which he stated that he will be home schooled from September 2, 1997, to August 1, 1998, and that he is scheduled to attend 30 hours of classes per week. However, the records submitted show that he attended home school approximately four to four and one-half hours per day, 20 to 22.5 hours per week, and 179 days in the 1996-1997 school year. The subjects in which he receives instruction are: Bible, Language Arts, Math, Science (by computer), and Social Studies (by computer). Your report of contact dated October 8, 1997, indicates that Christopher is being taught by his grandmother and grandfather. His grandfather is the primary teacher. His grandfather has his GED and took several home correspondence courses while in the military. His grandmother has completed two years of high school.

As previously discussed, Kansas statutes do not define "competent instructor." We do not believe, however, that Mr. and Mrs. F~s teaching credentials are highly persuasive either for or against a conclusion. Kansas has previously declined to find that home instruction qualified as a private school when the instructor was a certified teacher and also when the teacher was not a certified teacher. See In re Sawyer, 672 P.2d 1093 (Kan. 1983); State v. Garber. 419 P.2d 896 (Kan. 1966); and State v Lowry, 383 P.2d 962 (Kan. 1963).

It is not clear what grade Christopher is in, but regardless, it does not appear that his attendance meets the statutory requirements set forth in Kan. Stat. Ann. § 72-1 106 (Supp. 1996). As previously discussed, the statute provides that a school term consists of 1116 hours per year for grades kindergarten through eleven and 1086 hours for grade 12, or 186 days (six hours per day) for grades kindergarten through eleven and 181 days (six hours per day) for grade 12. Id. Christopher attended home school approximately 716 to 805.5 hours, or approximately 179 days for four to four and one-half hours per day for the 1996-1997 school year. The Social Security regulations require only 20 hours of attendance per week for full-time attendance; however, the regulations also require that both state and federal requirements must be met for students who are in a home school program. 20 C.F.R. §§ 404.367(b) and (c) (1997). Mr. I~ of the Kansas State Department of Education opined that 805 hours of attendance would not qualify as "substantially equivalent" attendance.

Furthermore, the Social Security regulation found at 20 C.F.R. § 404.367(a)(1) (1997), specifically requires that in order for home schooling to qualify as an elementary or secondary school, the instruction given must be "in accordance with a home school law of the State.. ." Id. Kansas statutes do not contain a home school law.

Based on the above analysis, we do not believe that this home schooling situation qualifies as an educational institution and that child's benefits cannot continue beyond age 18.

SUMMARY

In summary, per 20 C.F.R. § 404.367 (1997), in order for a child who is being home schooled to be eligible for benefits as a full-time elementary or secondary school student, the instruction must be provided in accordance with a home school law of the state or jurisdiction. The Kansas legislature has not specifically provided that a home school is an acceptable elementary or secondary school within their state. However, the Kansas State Department of Education does recognize home schools as nonaccredited, private schools as long as the school is in session for a period of time which is "substantially equivalent" to that of public schools.