Issue
You requested a legal opinion on whether an 18-year old home schooled student in Oregon
can qualify for student benefits under Title II of the Social Security Act and what
type of evidence is required to establish eligibility to student benefits.
Answer
We recommend that you find that the student satisfies the eligibility requirements
for student benefits. The specific type of evidence required to establish eligibility
for student benefits is not specified in Social Security regulations and the Programs
Operations Manual System (POMS). Therefore, in view of this and because each case
is fact specific, we made recommendations regarding evidence you should obtain from
the student's Education School District (ESD) that addresses the requirements necessary
to establish eligibility for student benefits as specified at 20 C.F.R. § 404.367,
POMS RS 00205.001(A) and POMS RS 00205.275(B). The ESD's response to the request for evidence is incorporated in part here.
Factual Background
In your request for a legal opinion, dated November 29, 2006, you provided us with
the following background statement:
The number holder, DM . . . . died on September XX, 19XX. On November XX, 19XX, JM
filed a successful application for surviving stepchild's benefits on behalf of her
daughter, EBJ; E has been receiving benefits since that time.
E turned age 18 in February 200X and is currently being home schooled by her mother.
. . .
* * * *
We contacted SS of the South Coast ESD. She stated that children over the age of 18
cannot be officially registered in Oregon as home schooled students. Thus, the question
we face is whether student benefits are payable to this individual despite the fact
that the state of Oregon may not recognize home schooling for individuals who have
turned age 18.
* * * *
(insertion in brackets added). You also provided us with these attachments to your
request for a legal opinion: 1) page 2 of Student's Statement Regarding School Attendance
(Form SSA-1372-BK) signed by EBJ and JM; 2) Home Schooling Notification Coos/Curry
Counties form signed by Ms. M; 3) page 1 of Oregon Guidelines for Home Schooling Questions
and Answers; and 4) a Report of Contact signed on October 17, 2006, by SE of the North
Bend, Oregon District Office. We also had you obtain evidence from the ESD, which
Ms. S provided in a June 5, 2008 letter. In your request, you referred to a May 7,
1991, opinion on Home Schooling in Oregon contained in POMS PR 08005.041. However, changes in Social Security Administration regulations and Oregon State
law regarding home schooling have effectively invalidated the May 7, 1991, opinion.
Accordingly, the May 7, 1991, opinion should no longer be followed.
Discussion
A. Social Security Program Requirements.
In order to be eligible to receive child's insurance benefits, an individual who is
18 years of age but has not attained age 19 must be a full-time elementary or secondary
school student at an educational institution. See 42 U.S.C. § 402(d)(1)(B). A full-time elementary or secondary school student includes
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 student resides. 20
C.F.R. § 404.367(a)(1). In POMS RS 00205.275(A), "home schooling" is defined as "[a] private educational program in which the
student is taught within the home by a parent/teacher. It is a program of study completely
by choice. . . . " POMS 00205.275(B), set forth in the analysis below, addresses when
student benefits are payable to home schooled students. Furthermore, POMS PR 00205.001(A) addresses the requirements for eligibility for student benefits.
B. State of Oregon Requirements.
The State of Oregon has extensive requirements with respect to home schooling in both
statutory laws and administrative rules. OR. REV. STAT. §§§ 339.010, 339.020, 339.030,
339.035, OR. ADMIN. R. §§ 581-21-0026, 581-021-0076; see also See Oregon Department of Education, Oregon Guidelines for Home Schooling Questions and Answers 1.1, 1.2, 1.3, 1.4, 1.5,
1.8, 1.9, 1.10 <http://www.ode.state.or.us/search/results/?id=74>. We did not find any information in the Oregon Statues or Oregon Administrative
Rules regarding whether a home schooled student is required to be taught specific
courses, such as those listed in OR. REV. STAT. § 329.045, OR. ADMIN. R. § 581-021-0200,
and OR. ADMIN. R. § 581-022-1210; see also Oregon Guidelines for Home Schooling Questions
and Answers 2.1.
C. Analysis.
1. The first factor of POMS RS 00205.275(B).
The first factor of POMS RS 00205.275(B), for when student benefits are payable, is if "[t]he student meets the Federal
standards for full-time attendance (FTA) (RS 00205.300C.)." Ms. BJ indicated on Page 2 of the Student's Statement Regarding School Attendance
(Form SSA-1372-BK) that the home school year began on September 1, 2006, and ended
on July 31, 2007 (item 1(b)), and that the number of hours per week she was scheduled
to attend home school was 25 hours (items 1(c) and 1(d)). As the school official,
Ms. M completed and signed the "Certification by School Official" part of the Student's
Statement Regarding School Attendance (Form SSA-1372-BK), in which she answered questions
1 and 2, indicating, respectively, that all information entered in item 1 was correct
according to the school's records and that the school's course of study is at least
13 weeks in duration. See POMS RS 00205.350(C). Thus, it appears that Ms. BJ's attendance meets the Federal standards for FTA
set out in POMS RS 00205.300(C)-that is, "[s]cheduled for attendance at the rate of at least 20 hours per week"
and "[e]nrolled in a course of study that is at least 13 weeks' duration. See RS
00205.315 for policy on duration of course of study."
Besides meeting the requirements of Federal standards for FTA, a student must also
meet State standards for FTA. See POMS RS 00205.300(A) and (B); see also 20 C.F.R. § 404.367(b). According to POMS RS 00205.300(B), "[c]onsider the State requirements [for FTA] met if the school considers the
student to be full-time based on the school's standards and practices for day students"
(insertions in brackets added). Additionally, 20 C.F.R. § 404.367(b) provides, in
part, that "[i]f you are in a home schooling program as described in paragraph (a)(1)
of this section, 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." Under OR. ADMIN. R. § 581-021-0076(1)(d), examples of a "full-time
school" include "[r]eceiving 20 hours of instruction per week in a technical or vocational
school or training program" or "[b]eing taught an equivalent period of time by a parent
or private teacher pursuant to ORS 339.035[.]" Because Ms. BJ indicated she was scheduled
to attend home school for 25 hours, it appears that Ms. BJ meets the requirement of
attending a full-time school under OR. ADMIN. R. § 581-021-0076(1)(d).
To determine whether the first factor of POMS RS 00205.275(B) was met, we recommended that you have the South Coast ESD provide a statement
as to whether in Ms. BJ's home school program situation (which she indicated began
on September 1, 2006, and ended on July 31, 2007), she carried a subject load which
is considered full-time for day students under the standards and practices set by
the State of Oregon for the school year 2006-2007. The South Coast ESD indicated that
ESD's are not required to monitor what curriculum or subject load is being carried
by the student and that under Oregon Guidelines for Home Schooling, parents are not
required to use the state content standards and may teach programs other than those
taught in public school (Ms. S's June 5, 2008 letter, answer to Question #1). Consequently,
based on all of the above information, it appears that the first factor of POMS RS 00205.275(B) has been met in Ms. BJ's case.
2. The second factor of POMS RS 00205.275(B).
The second factor of POMS RS 00205.275(B), for when student benefits are payable, is that "[t]he law of the State in which
the home school is located recognizes home school as an educational institution (EI)."
"An EI is a school that provides elementary or secondary education (grade 12 or below)
as determined under the law of the State or other jurisdiction in which it is located."
POMS RS 00205.200(A). The POMS state that "[a]ssume all education provided by an elementary or secondary
level school to be at the grade 12 level or below unless there is evidence to the
contrary." POMS RS 00205.200(B)(1). Under OR. ADMIN. R. § "581-021-0076 Exemption From Compulsory Attendance,"
the meaning of a "school" includes "[b]eing taught by a parent or private teacher
pursuant to ORS 339.035." (underlined emphasis in original). Based on this provision
of the Oregon Administrative Rules, it appears that the law of the State of Oregon
recognizes home schooling as an EI. Consequently, it appears that the second factor
of POMS RS 00205.275(B) has been met in this case.
3. The third factor of POMS RS 00205.275(B).
The third factor of POMS RS 00205.275(B), with respect to when student benefits are payable, is that "[t]he home school
the student attends meets the requirements of State law in which the home school is
located." From our review of the Oregon Statues, Oregon Administrative Rules, and
the Oregon Guidelines for Home Schooling, the third factor for the State of Oregon
appears to involve the student's full-time enrollment or attendance in home schooling,
the exemption and notification requirements from a parent or legal guardian to the
ESD for children being taught at home by a parent or legal guardian, and examination
requirements.
a. Full-time enrollment or attendance.
With respect to the full-time enrollment or attendance requirement, Oregon law provides
that "[e]xcept as provided in ORS 339.030, all children between the ages of 7 and
18 years who have not completed the 12th grade are required to attend regularly a
public full-time school of the school district in which the child resides." OR. REV.
STAT. § 339.010 (underlined emphasis in original). However, Oregon law further provides
for exemptions for when children shall not be required to attend public full-time
schools, which includes "[c]hildren being educated in the children's home by a parent
or legal guardian." OR. REV. STAT. § 339.030(1)(d). This particular exemption is subject
to a notification requirement to the ESD by the parent or legal guardian, noted in
section (C)(3)(b) of this opinion. See OR. REV. STAT. § 339.035(2). Being "[t]aught by a parent or private teacher pursuant
to ORS 339.035" is included in the definition of "school." See OR. ADMIN. R. § 581-021-0076(1)(d).
We recommended that you ask the South Coast ESD to provide a statement as to whether
Ms. BJ's home school program met the State of Oregon's requirements for full-time
attendance or enrollment for the 2006-2007 school year. The South Coast ESD responded
that it was not required to monitor what curriculum or subject load is being carried
by a student. The South Coast ESD stated that, furthermore, a home school student
is considered full-time as long as they have registered with their resident ESD and
Ms. BJ was enrolled as of October 13, 2006 thru June of 2007 (Ms. S's June 5, 2008
letter, answer to Question #2). Therefore, it appears that Ms. BJ's home schooling
situation met the State of Oregon's requirement for full-time attendance or enrollment.
b. Exemption and Notification requirements.
In Oregon, the exemption and notification requirements from a parent or legal guardian
to the ESD for children being taught at home by a parent or legal guardian are set
forth in OR. REV. STAT. §§ 339.010, 339.020, 339.030, 339.035 and OR. ADMIN. R. §§
581-21-0026, 581-021-0076; see also See Oregon Guidelines for Home Schooling Questions and Answers 1.1, 1.2, 1.3, 1.4, 1.5,
1.8, 1.9, 1.10. It is unclear when the notification of home schooling to the ESD must
be submitted by the parent or legal guardian under Oregon law. It is also unclear
from the provisions of Oregon law whether the home schooling exemption from compulsory
attendance and the notification requirements in order for an ESD to grant such an
exemption apply to children aged 18 or over. We did not find any Oregon or Federal
court cases addressing this issue. It is therefore unclear under Oregon law whether
or not the State of Oregon recognizes home schooling for children who are aged 18
or over. We were not able to find any Oregon or Federal court cases addressing the
issue of whether student benefits are payable under Title II of the Social Security
Act if the State of Oregon may not recognize home schooling for children who are aged
18 or over.
In view of all of the above, we recommended that you have the South Coast ESD address
in a statement: A) whether Ms. BJ was considered by that ESD to be officially registered
for home schooling for the school year 2006-2007; and B) whether Ms. BJ was considered
by that ESD to be compliance with all of the State of Oregon requirements for home
schooling for the school year 2006-2007, including the requirements for the home schooling
exemption from compulsory attendance and the notification requirements in order for
the South Coast ESD to grant such an exemption. The South Coast ESD responded that
Ms. BJ was registered for the 2006-2007 school year and was in compliance with the
State of Oregon requirements for home schooling. The South Coast ESD stated that,
"the notification form satisfies the exemption from compulsory school attendance.
(ORS 339.030) There are no other requirements in the State of Oregon to be considered
a registered home school student" (Ms. S's June 5, 2008 letter, answer to Question
#3).
Given South Coast ESD's above response, if Ms. M submits evidence that Ms. BJ also
meets the requirements of the fourth factor of POMS RS 00205.275(B), the requirements of POMS RS 00205.001(A), and the requirements of 20 C.F.R. § 404.367, then we recommend that Ms. BJ be
found eligible for student benefits even though it is unclear whether or not the State
of Oregon recognizes home schooling for children aged 18 or over. We make this recommendation
based on three considerations. The first consideration is that POMS RS
00205.275(B) contains the following note:
IMPORTANT: Some States only require parent reporting/monitoring until the student
attains the State's compulsory education age, which is age 16 in many States; however,
a home school must comply with State law for the child to be entitled as a student
even if he/she is beyond the State's compulsory education age. . . .
POMS RS 00205.275(B) (bold emphasis in original). This POMS note suggests that a child may still be
eligible for student benefits under Title II of the Social Security Act provided that
the child's home schooling complies with State law even if he or she is beyond the
State's compulsory education age. This suggestion is consistent with the second consideration,
which is that the Social Security Act has been considered by the courts to be remedial
in purpose and is to be construed liberally. See Doran v. Schweiker, 681 F.2d 605, 607 (9th Cir. 1982).
The third consideration is that 20 C.F.R. § 404.352 contains provisions addressing
when entitlement to child's benefits end in certain situations when the child is a
student who has attained age 19. Similarly, POMS RS 00205.325 also contains provisions for situations when student benefits terminate when a student
attains age 19. Thus, under certain circumstances a student may still be eligible
for student benefits even if he or she has attained the age of 19. The Home Schooling
Notification Coos/Curry Counties form you provided us with indicates that Ms. BJ's
birth date is February XX, 19XX. If this is correct, under POMS GN 00302.400(A)-(B) she attained age 19 on February XX, 200X. Thus, the issue of whether or not
Ms. BJ's specific fact situation comes within the provisions of 20 C.F.R. § 404.352
and POMS RS 00205.325 may need to be considered by the RSI Programs and System Team or other appropriate
component. If this is so, we recommended that you have the South Coast ESD provide
a statement regarding whether for the 2006-2007 school year: A) it operated on a yearly
basis; or B) it operated on a quarterly or semester basis and required the student
to enroll each quarter or semester and, if this is the case, whether Ms. BJ did so.
The statement should specify the time periods involved for A) or B) and the basis
for the answers provided. The South Coast ESD responded that: "The South Coast ESD
operates on a yearly basis; E was enrolled 10/13/06 through 6/30/07. Since she turned
age 18 during this time, her file could be kept open until the end of the ESD fiscal
year. ORS 339.030, 339.035, OAR 581-021-0026(4)." (Ms. S's June 5, 2008 letter, answer
to Question #6). We recommend that you find that Ms. BJ satisfies the eligibility
requirements for student benefits.
c. Examination requirements.
With respect to examination requirements for home schooled children, the Oregon Guidelines
for Home Schooling Questions and Answers 1.6 state, in part, that "[h]ome schooled
children must be tested before the end of grades 3, 5, 8, and 10. The end of the grade
is defined as before August 15 following the end of that school year." The State of
Oregon's extensively detailed examination requirements are specified in OR. REV. STAT.
§ 339.035(3)-(5) and OR. ADMIN. R. § 581-021-0026(5)-(7). We recommended that you
have the South Coast ESD address whether Ms. BJ has met the State of Oregon examination
requirements for home schooled children. The South Coast ESD stated that "no test
scores were received; however, E, grade 12, was beyond the grade and age when testing
is required for home schoolers. ORS.339.035(3))." (Ms. S's June 5, 2008 letter, answer
to Question #4). As stated above, testing for home schooled children in Oregon must
occur before the end of grades 3, 5, 8, and 10. Thus, it appears that the examination
requirements are not an issue in Ms. BJ's case because: she was 18-19 years old and
in the 12th grade during the 2006-2007 year, which was beyond the age and grade when
testing is required for home schooled children; and the issue here concerns her eligibility
to receive student benefits as an home schooled student who had turned 18 years of
age.
4. The fourth factor of POMS RS 00205.275(B).
The fourth factor of POMS RS 00205.275(B) is that the "[t]he student meets all the other requirements for benefits." We
note, for instance, that POMS RS 00203.001 discusses Child's Benefits - Entitlement and Non-Entitlement Provisions, and that
20 C.F.R. § 404.367(f) discuss other requirements for eligibility for child's benefits
if the individual is a full-time elementary or secondary school student. This forth
factor is not discussed further here because the central issue presented concerned
home schooling for an individual who had turned age 18.
Conclusion
We recommend that you find Ms. BJ satisfies the requirements for eligibility for student
benefits.