New Jersey recognizes the student’s home school as an Educational Institution. Based on the evidence provided, the number holder meets the Federal requirements for full-time attendance and his home school provides instruction equivalent to that provided in New Jersey public schools.

QUESTION PRESENTED

Whether J~ (J~), who is home schooled in New Jersey by his mother, B~ (B~), can be considered a full-time student at a secondary school for the period from August 22, 2016 through June 22, 2017 and therefore entitled to student benefits on the record of the number holder (NH), his mother, B~.

OPINION

New Jersey, the law of the jurisdiction in which the home school is located, recognizes J~’s home school as an Educational Institution. Based on the evidence provided, J~ meets the Federal requirements for full-time attendance and his home school provides instruction equivalent to that provided in New Jersey public schools. Therefore, he should be considered a full-time secondary school student for the period from August 22, 2016 through June 22, 2017.

BACKGROUND

The NH, who is J~’s mother, has been receiving Social Security Disability benefits since August 2005. J~, who turned 18 on May XX, 2016, has received Auxiliary Benefits on the NH’s record since August 2005, as well. J~ is home schooled by his mother. J~’s school year began on August 22, 2016 and was scheduled to continue until June 22, 2017, his expected graduation date.

On July 8, 2016, B~ completed a certification confirming that her son was being home schooled. She certified that her son was scheduled to attend school for 34 hours per week. In a statement dated July 26, 2016, B~ explained that her son was taking classes in Literature, Grammar, Thinking Skills, Math, Science, and History. She stated he also would be taking General Educational Development (GED) test preparation classes, bible study classes, and classes regarding APA and MLA citation formats. She further stated that he studies from 9 a.m. until 3 p.m. for most of the school year and that she maintains attendance sheets and weekly worksheets for each of his courses.

B~ submitted an example weekly list of homework for the school year beginning in September 2016. She additionally submitted a list of classes J~ had taken since September 2015 and a list of textbooks used for past and current class instruction.

ANALYSIS

A. Social Security Laws, Regulations, and Policy

Under the Social Security Act (Act), an individual may continue to receive child’s benefits past the age of 18 if he is a full-time elementary or secondary school student. See Act § 202(d)(1)(E); 42 U.S.C. § 402(d)(1)(E). The Act defines a full-time elementary or secondary school student as: “an individual who is in full-time attendance at an elementary or secondary school….” Act § 202(d)(7)(A); 42 U.S.C. § 402(d)(7)(A). An elementary or secondary school is defined as “a school which provides elementary or secondary education under the laws of the State or other jurisdiction in which it is located.” Act § 202(d)(7)(C)(i); 42 U.S.C. § 402(d)(7)(C)(i). This can include home school, independent study, online school, or traditional brick and mortar school. See 20 C.F.R. § 404.367(a); Program Operations Manual System (POMS) RS 00205.275; RS 00205.285; RS 00205.295.

A home schooled student can be considered an elementary or secondary student under the Act if the student is “instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [he] reside[s].” 20 C.F.R. § 404.367(a)(1). A home schooled student must be in full-time attendance in a non-correspondence course of at least 13 weeks duration and must carry a subject load which is considered full-time for day students under the standards and practices set by the State or other jurisdiction in which he resides. 20 C.F.R. § 404.367(b); POMS RS 00205.275; POMS RS 00205.300. The regulations also require that the student be scheduled to attend at least 20 hours per week in order to meet the requirements of full-time attendance. 20 C.F.R. § 404.367(b).

In short, benefits are payable to a home schooled student if:

The student meets the Federal standards for full-time attendance set out in POMS RS 00205.300C;

The law of the State in which the home school is located recognizes home school as an Educational Institution;

The home school the student attends meets the requirements of State law where the student resides; and

The student meets all the other requirements for benefits.

POMS RS 00205.275 (emphasis added). An Educational Institution 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. The Federal standards for full-time attendance require that the student is (1) scheduled for attendance at the rate of at least 20 hours per week; (2) enrolled in a course that is not a correspondence course; and (3) enrolled in a course of study that is of at least 13 weeks’ duration. POMS RS 00205.300C. There are exceptions to the 20-hour per week requirement, including a medical condition precluding 20 hours of attendance. POMS RS 00205.310A.

B. State Laws and Guidelines

Whether his home schooling is sufficient for J~ to be considered a secondary student is analyzed under the laws of New Jersey, the jurisdiction in which he resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275. The New Jersey compulsory education statute instructs that children between the ages of six and 16 must “regularly … attend the public schools of the district or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or … receive equivalent instruction elsewhere than at school.” N.J. Stat. Ann. 18A:38-25 (emphasis added). While New Jersey law does not explicitly authorize or regulate home schooling, the New Jersey Department of Education has interpreted the phrase “equivalent instruction elsewhere than at school” to permit home schooling. State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, available at http://www.state.nj.us/education/genfo/faq/faq_homeschool.htm (last visited June 29, 2016); see POMS PR 08005.033 New Jersey.

The New Jersey Department of Education has further stated that State law does not require or authorize the local board of education to review and approve the curriculum of a home schooling program, and that parents are not required to inform the local board of education of their intent to provide home schooling. State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra. Under the compulsory education laws, the State may challenge whether the parent has substituted one of the alternatives for public school. See State v. Vaughn, 207 A.2d 537, 540 (N.J. 1965). While the parent must provide evidence that “the child is receiving equivalent instruction elsewhere than at school,” the burden is on the State to prove that the education provided is not equivalent to that provided by the public schools. Id.

While courts have clarified that equivalent instruction requires only “academic equivalence,” not social or developmental equivalence, New Jersey provides little guidance regarding the parameters of “equivalent instruction.” See State v. Massa, 231 A.2d 252, 257 (N.J. Super. Ct. Law Div. 1967); New Jersey Div. of Youth and Family Services v. R.G., No. A-3739-11T4, 2014 WL 17509, at *8 n.7 (N.J. Super. Ct. App. Div. Jan. 2, 2014); see also State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra (stating that the local board of education is not authorized to review or approve home school curriculum and that the parent/guardian is responsible for the educational outcomes of the child).

In Massa, the court found that the parents of a home schooled student put forth sufficient evidence of equivalence. 231 A.2d at 257-58. In its discussion of the evidence provided by the parents, the court found that the parents had “satisfied [the] court that [the instructing parent] ha[d] an established program of teaching and studying … there [were] definite times each day for the various subjects and recreation.” Id.

C. J~ is Entitled to Benefits Because he is Considered a Full-Time Secondary School Student under the Act

1. J~ Meets the Federal Standards for Full-Time Attendance

The documentation provided by B~ states that her son has met the Federal standards for full-time attendance. In order to be eligible for child’s benefits as a full-time student, the student must be scheduled to attend school at least 20 hours per week, unless an exception applies. 20 C.F.R. § 404.367(b). On July 8, 2016, J~’s mother informed SSA that her son would attend 34 hours per week of home schooling year-round from August 2016 through June 2017. In a subsequent statement, B~ affirmed that her son usually studies from 9:00 a.m. to 3:00 p.m. Monday through Friday throughout the school year. This stated schedule would actually result in 30 hours per week of instruction.

Here, the evidence provided by B~ states that J~ receives more than 30 hours of instruction per week, which exceeds the 20-hour requirement. Thus, absent any indicia of fraud, the evidence indicates that he meets the requirements set forth by the Federal standards.

2. J~ Meets the New Jersey Home School Requirements

As set forth above, New Jersey recognizes home schooling as an Educational Institution. See State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra (stating that statutory provision “‘to receive equivalent instruction elsewhere than at school’ in N.J.S.A. 18A:38:25, permits a parent/guardian to educate the child at home”); see also Massa, 231 A.2d at 257 (finding that child educated at home by her mother received an education equivalent to a public school education).

Here, there is no evidence that J~’s home schooling fails to meet the New Jersey requirement that the home school provide instruction equivalent to that provided in a public school. B~ has stated that her son will take courses in Literature, Grammar, Thinking Skills, Math, Science, and History, along with GED test preparation classes and bible study. Many of the courses taken by J~ are analogous to those taken by New Jersey high school students. New Jersey’s graduation requirements include 20 credits in English language arts, 15 credits in mathematics, 15 credits in science, 15 credits in social studies, and 5 credits in world language (or demonstrated proficiency). See Graduation Requirements, N.J. Admin. Code 6A:8-5.1. One “credit” is “the award for the equivalent of a class period of instruction, which meets for a minimum of 40 minutes, one time per week during the school year.” Definitions, N.J. Admin. Code 6A:8-1.3.

Although New Jersey requires schools to provide instruction in certain subjects, New Jersey law does not appear to impose these requirements as stringently on home schooling. N.J. Stat. Ann. § 18A:35-1 to 35-5. Indeed, the Massa decision indicates that homeschoolers are free to use whatever curriculum, materials or methods they choose. Massa, 231 A.2d at 257. Furthermore, New Jersey law does not authorize local Boards of Education to review or deny the curriculum of a child educated at home. State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra. As the New Jersey courts have stated, “parents have a constitutional right to choose the type and character of education they feel is best suited for their children, be it secular or sectarian.” West Morris Board of Education v. Sills, 265 A.2d 162 (N.J. Super. Ct. Ch. Div. 1970).

CONCLUSION

J~ has been receiving Auxiliary Benefits on his mother’s record since August 2005. J~ turned 18 on May XX, 2016, has received on the NH’s record since August 2005, as well. J~ is home schooled by his mother. J~ meets the Federal requirements for full-time attendance. Additionally, New Jersey recognizes the home school as an Educational Institution. There is no evidence that J~’s home school does not provide instruction that would be considered equivalent to that provided in a New Jersey public school. Accordingly, J~ should be considered a full-time secondary student.

New Jersey recognizes Liberty University Online Academy (LUOA) as an approved Educational Institution. It is a Christian home school program serving students from kindergarten through 12th grade.

QUESTION PRESENTED

Whether R2~, who is home schooled in New Jersey by his mother (M~), can be considered a full-time student at a secondary school for the period of September XX, 2014 through August 2015 and therefore entitled to student benefits on the record of the number holder (NH), his father R~.

SHORT ANSWER

New Jersey, the law of the jurisdiction in which the home school is located, recognizes R2~’s home school as an educational institution (Educational Institution). Based on the evidence provided, R2~ meets the Federal requirements for full-time attendance and his home school provides instruction equivalent to that provided in New Jersey public schools. Therefore, he should be considered a full-time secondary school student for the period from September XX, 2014 through August 2015.

BACKGROUND^[1]

The NH, who is R2~s father, has been receiving Social Security retirement benefits since October 2011. R2~, who turned 18 in December 2014, has received auxiliary benefits on the NH’s record since October 2011, as well. R2~ was home schooled by his mother. R2~’s school year began on September 1, 2014 and was scheduled to continue until August 2015. His expected graduation date was December 2015.

On November 2014, M~ completed a certification confirming that her son was being home schooled. She certified that her son was scheduled to attend school for 20 hours per week. In an undated statement, M~ explained that her son took classes in English, Typing, Driving and Physical Education. She stated that her son had completed Algebra One and Algebra Two and would be attending Brookdale Community College for a math course starting in January 2015. She further stated that he studied Art through a course from Seton Press and filled his physical education requirements through the Bayshore Youth Athletic Association by playing soccer.

M~ stated that her son was sometimes instructed using DVDs from A Beka Academy. M~ subsequently submitted a letter of enrollment from A Beka Academy demonstrating that her son was registered in their English 9 course, along with a receipt for course materials. Finally, M~ submitted a list of High School Course Offerings from A Beka Academy outlining their entire curriculum and elective offerings.

ANALYSIS

A. Social Security Laws, Regulations, and Policy

Under the Social Security Act (Act), an individual may continue to receive child’s benefits past the age of 18 if he is a full-time elementary or secondary school student. See Act § 202(d)(1)(E); 42 U.S.C. § 402(d)(1)(E). The Act defines a full-time elementary or secondary school student as: “an individual who is in full-time attendance at an elementary or secondary school….” Act § 202(d)(7)(A); 42 U.S.C. § 402(d)(7)(A). An elementary or secondary school is defined as “a school which provides elementary or secondary education under the laws of the State or other jurisdiction in which it is located.” Act § 202(d)(7)(C)(i); 42 U.S.C. § 402(d)(7)(C)(i). This can include home school, independent study, online school, or traditional brick and mortar school. See 20 C.F.R. § 404.367(a); Program Operations Manual System (POMS) RS 00205.275; RS 00205.285; RS 00205.295.

A home schooled student can be considered an elementary or secondary student under the Act if the student is “instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [he] reside[s].” 20 C.F.R. § 404.367(a)(1). A home schooled student must be in full-time attendance in a non-correspondence course of at least 13 weeks duration and must carry a subject load which is considered full-time for day students under the standards and practices set by the State or other jurisdiction in which he resides. 20 C.F.R. § 404.367(b); POMS RS 00205.275; POMS RS 00205.300. The regulations also require that the student be scheduled to attend at least 20 hours per week in order to meet the requirements of full-time attendance. 20 C.F.R. § 404.367(b).

In short, benefits are payable to a home schooled student if:

The student meets the Federal standards for full-time attendance set out in POMS RS 00205.300C;

• •

  The law of the State in which the home school is located recognizes home school as an Educational Institution;

• •

  The home school the student attends meets the requirements of State law where the student resides; and

• •

  The student meets all the other requirements for benefits.

POMS RS 00205.275 (emphasis added). An Educational Institution 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. The Federal standards for full-time attendance require that the student is

1. 1. 

   scheduled for attendance at the rate of at least 20 hours per week;

2. 2. 

   enrolled in a course that is not a correspondence course; and

3. 3. 

   enrolled in a course of study that is of at least 13 weeks’ duration.

POMS RS 00205.300C. There are exceptions to the 20-hour per week requirement, including a medical condition precluding 20 hours of attendance. POMS RS 00205.310A.

B. State Laws and Guidelines

Whether his home schooling is sufficient for R2~to be considered a secondary student is analyzed under the laws of New Jersey, the jurisdiction in which he resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275. The New Jersey compulsory education statute instructs that children between the ages of six and 16 must “regularly … attend the public schools of the district or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or … receive equivalent instruction elsewhere than at school.” N.J. Stat. Ann. 18A:38-25 (emphasis added). While New Jersey law does not explicitly authorize or regulate home schooling, the New Jersey Department of Education has interpreted the phrase “equivalent instruction elsewhere than at school” to permit home schooling. State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, available at http://www.state.nj.us/education/genfo/faq/faq_homeschool.htm (last visited April 8, 2016); see POMS PR 08005.033 New Jersey.

The New Jersey Department of Education has further stated that State law does not require or authorize the local board of education to review and approve the curriculum of a home schooling program, and that parents are not required to inform the local board of education of their intent to provide home schooling. State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra. Under the compulsory education laws, the State may challenge whether the parent has substituted one of the alternatives for public school. See State v. Vaughn, 207 A.2d 537, 540 (N.J. 1965). While the parent must provide evidence that “the child is receiving equivalent instruction elsewhere than at school,” the burden is on the State to prove that the education provided is not equivalent to that provided by the public schools. Id.

While courts have clarified that equivalent instruction requires only “academic equivalence,” not social or developmental equivalence, New Jersey provides little guidance regarding the parameters of “equivalent instruction.” See State v. Massa, 231 A.2d 252, 257 (N.J. Super. Ct. Law Div. 1967); New Jersey Div. of Youth and Family Services v. R.G., No. A-3739-11T4, 2014 WL 17509, at *8 n.7 (N.J. Super. Ct. App. Div. Jan. 2, 2014); see also State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra (stating that the local board of education is not authorized to review or approve home school curriculum and that the parent/guardian is responsible for the educational outcomes of the child).

In Massa, the court found that the parents of a home schooled student put forth sufficient evidence of equivalence. 231 A.2d at 257-58. In its discussion of the evidence provided by the parents, the court found that the parents had “satisfied [the] court that [the instructing parent] ha[d] an established program of teaching and studying … there [were] definite times each day for the various subjects and recreation.” Id.

C. R2~is Entitled to Benefits Because he is Considered a Full-Time Secondary School Student under the Act

1. R2~ Meets the Federal Standards for Full-Time Attendance

The documentation provided by M~ states that her son has met the Federal standards for full-time attendance. In order to be eligible for child’s benefits as a full-time student, the student must be scheduled to attend school at least 20 hours per week, unless an exception applies. 20 C.F.R. § 404.367(b). On November 26, 2014, R2~’s mother informed SSA that her son would attend 20 hours per week of home schooling year-round from September 2014 to August 2015. In a subsequent undated statement, M~ affirmed that her son attends at least 20 hours a week from 9:00 a.m. to 2:00 p.m. Monday through Friday. This stated schedule would actually result in 25 hours per week of instruction.

Here, the evidence provided by M~ states that R2~ recieves more than twenty hours of instruction per week, which exceeds the 20-hour requirement. Thus, absent any indicia of fraud, the evidence indicates that he meets the requirements set forth by the Federal standards.

2. R2~ Meets the New Jersey Home School Requirements

As set forth above, New Jersey recognizes home schooling as an Educational Institution. See State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra (stating that statutory provision “‘to receive equivalent instruction elsewhere than at school’ in N.J.S.A. 18A:38:25, permits a parent/guardian to educate the child at home”); see also Massa, 231 A.2d at 257 (finding that child educated at home by her mother received an education equivalent to a public school education).

Here, there is no evidence that R2~’s home schooling fails to meet the New Jersey requirement that the home school provide instruction equivalent to that provided in a public school. M~has stated that her son takes courses in English, Algebra, History, Art, Typing, Driving, and Physical Education. Many of the courses taken by R2~ are analogous to those taken by New Jersey high school students. New Jersey’s graduation requirements include 20 credits in English language arts, 15 credits in mathematics, 15 credits in science, 15 credits in social studies and 5 credits in world language (or demonstrated proficiency). See Graduation Requirements, N.J. Admin. Code 6A:8-5.1. One “credit” is “the award for the equivalent of a class period of instruction, which meets for a minimum of 40 minutes, one time per week during the school year.” Definitions, N.J. Admin. Code 6A:8-1.3.

Although New Jersey requires schools to provide instruction in certain subjects, New Jersey law does not appear to impose these requirements as stringently on home schooling. N.J. Stat. Ann. § 18A:35-1 to 35-5. Indeed, New Jersey law notes that the “required courses” need not be taught if a parent objects on moral or religious grounds. Id. In light of the religious character of M~’S educational program, it is likely that any deviation from New Jersey’s preferred curriculum would be excused. Additionally, the Massa decision indicates that homeschoolers are free to use whatever curriculum, materials or methods they choose. Massa, 231 A.2d at 257. Furthermore, New Jersey law does not authorize local Boards of Education to review or deny the curriculum of a child educated at home. State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, supra. As the New Jersey courts have stated, “parents have a constitutional right to choose the type and character of education they feel is best suited for their children, be it secular or sectarian.” West Morris Board of Education v. Sills, 265 A.2d 162 (N.J. Super. Ct. Ch. Div. 1970).

CONCLUSION

In sum, it is our opinion that R2~ meets the Federal requirements for full-time attendance. Additionally, New Jersey recognizes the home school as an Educational Institution. Finally, there is no evidence that R2~’S home school does not provide instruction that would be considered equivalent to that provided in a New Jersey public school. Accordingly, R2~ should be considered a full-time secondary student.

Liberty University Online Academy (LUOA), which is located in Virginia, satisfies the home school laws of the State of New Jersey. New Jersey law does not establish any attendance requirements or guidelines for home schooling. The student must meet Federal standards for full-time attendance and all other requirements for the payment of benefits.

QUESTION PRESENTED

Whether R~, who is studying toward a high school diploma through Liberty University Online Academy (LUOA), can be considered a full-time student at a secondary school as defined under section 202(d)(7) of the Social Security Act.

OPINION

R~’s education through LUOA meets the requirements for a home school program under New Jersey law. However, it has not been established that she meets the Federal requirements for full-time attendance under 20 C.F.R. §§ 404.367(b) and 404.367(c). Based on the information currently on file, R~ cannot be considered a full-time secondary school student under section 207(d)(7) of the Social Security Act.

BACKGROUND

R~, who turns 18 in December 2010, has been receiving Surviving Child’s benefits since August 2010 on the record of her mother, D~. Prior to her mother’s death, R~ had been home schooled in her hometown of XX, New Jersey. In September 2010, her aunt arranged for R~ to complete her high school education through LUOA, based in Lynchburg, Virginia. R~s aunt did not consult with the New Jersey Board of Education regarding this schooling arrangement. Because R~ was at least 17 years old while taking LUOA courses, truancy is not an issue under New Jersey laws.

R~ is currently taking three classes in the fall semester and will have four classes in the spring through LUOA. She is on track to graduate in July or August 2011. Her courses are self paced, and the online program tracks usage hours. However, it does not measure homework time or time spent completing geometry problems as part of her class work. Since her enrollment in September 2010, R~ was averaging 15 usage hours. ^[2] According to the LUOA guidance counselor, in order for R~ to get through the semester, she would need to take two lessons per course per day, which would necessitate a minimum of 20 hours per week.

ANALYSIS

A. Social Security Laws and Regulations

Under the Social Security Act (“Act”), an individual may continue to receive surviving child’s benefits past the age of 18 if she is a full-time elementary or secondary school student. 42 U.S.C. 402(d)(1)(E). The Act defines a full-time elementary or secondary school student as: “an individual who is in full-time attendance at an elementary or secondary school…” 42 U.S.C. 402(d)(7)(A). An elementary or secondary school is defined as “a school which provides elementary or secondary education under the laws of the State or other jurisdiction in which it is located.” 42 U.S.C. 402(d)(7)(C)(i). This can include home school, independent study, online school, or traditional brick and mortar school. See 20 C.F.R. § 404.367(a); POMS RS 00205.295. A home schooled student can be considered an elementary or secondary student under the Act if the student is “instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [she] reside[s].” 20 C.F.R. § 404.367(a)(1). A home schooled student must carry a subject load which is considered full-time for day students under the standards and practices set by the State or other jurisdiction in which she resides. 20 C.F.R. § 404.367(b). An online school may be recognized as an elementary or secondary school if the online school is considered an educational institution under the laws of the state in which it is located. POMS RS 00205.295. A student attending an online school must carry a subject load that is considered full-time for day students under the institution’s standards and practices. 20 C.F.R. § 404.367(b). Whatever the type of school attended, the regulations require that the student be scheduled to attend at least 20 hours per week in order to meet the requirements of full-time attendance. This rule is excepted only if the school attended does not schedule 20 hours per week and is the only reasonable alternative for the student, or if the student has a medical condition that prevents her from attending at least 20 hours per week. 20 C.F.R. § 404.367(c).

State Laws and Guidelines

Whether LUOA qualifies as home schooling is analyzed under the laws of New Jersey, the state in which R~ resides. See 20 C.F.R. § 404.367(a)(1). New Jersey has no statute that explicitly authorizes or regulates home schooling. See POMS PR 08005.033 Homeschooling in New Jersey (2007). Under the New Jersey State compulsory education statue, children between the ages of six and 16 must “regularly … attend the public schools of the district or a day school in which there is given instruction equivalent to that provided in the public schools for children of similar grades and attainments or … receive equivalent instruction elsewhere than at school.” N.J.S.A. 18A:38-25. The New Jersey Department of Education has interpreted the phrase “equivalent instruction elsewhere than at school” to permit home schooling. State of New Jersey, Department of Education, Frequently Asked Questions: Homeschooling, 2006, available at http://www.state.nj.us/education/genfo/faq/faq_homeschool.htm. The New Jersey Department of Education has further stated that State law does not require or authorize the local board of education to review and approve the curriculum of a home schooling program and parents are not required to inform the local board of education of their intent to provide home schooling. Where a parent or guardian selects a web-based program for the child, the state or local board of education is not required or authorized to approve the selected program and the parent or guardian is solely responsible for any program selected. Id. Under the compulsory education laws, the State may challenge the equivalency of the instruction at home, but the burden is on the State to prove that the education provided is not equivalent to that provided by the public schools. See State v. Vaughn, 44 N.J. 142, 147 (1965). New Jersey law does not establish any attendance requirements or guidelines for home schooling, but the State’s public schools must be open for instruction at least 180 days in the school year. New Jersey Attorney General Formal Opinion No. 19-1975.

Whether LUOA qualifies as an educational institution is analyzed under the laws of Virginia, the state in which it is located. See POMS RS 00205.295. According to POMS PR 08205.052, Virginia does not recognize online schools as educational institutions. In January 2010, the Executive Assistant to the Virginia Board of Education told the Region III Office of General Counsel that Virginia did not recognize online schools as educational institutions, but allowed students to take online courses to supplement their regular curriculum, and such students may receive credit for those courses at the discretion of their school’s principal. See POMS PR 08205.052 State Survey Regarding Legal Recognition and Requirements for Online Schools (2010).

A. R~ Is Not Entitled to Benefits Because She Is Not a Full-Time Secondary School Student Under the Act

Under the federal laws, R~ may continue to receive survivors benefits past the age of 18 only if the following conditions are met:

(1) LUOA qualifies as home schooling under New Jersey law or as an educational institution under Virginia law;

(2) R~ carries a subject load which is considered full-time for day students; and

(3) R~ is scheduled to attend school at least 20 hours per week. 1. LUOA Is Not Considered an Educational Institution Under Virginia Law, But It Qualifies As a Home School Under New Jersey Law

Because Virginia does not recognize online schools as educational institutions, LUOA is not considered a secondary school under the Act. However, R~’s education through LUOA satisfies the home school laws of the State of New Jersey. The New Jersey Department of Education specifically contemplates that a student may receive home schooling through a web-based program. Furthermore, the State leaves the selection of that program to the discretion of the parent or guardian of the student. Because LUOA satisfies the New Jersey home schooling laws, Therefore, R~ may be considered a secondary student under the Act.

2. R~ Is Not Entitled to Benefits Because She Has Not Established That She Meets the Requirements for Full-Time Attendance

Although R~ may be considered a secondary student under the Act, she has not established that she meets the requirements for full-time attendance. A school year at LUOA is 180 days with 90 days in each semester. In order for full academic credit to be granted, LUOA requires 180 days of instructional work. Liberty Union Online Academy, Grade Level Curriculum Guide Grades 9 – 12, available at http://www.libertyonlineacademy.com/media/9933/LUOA%209th-12th%20Grade%20Curriculum%20Guide%20rev%209-2010.pdf. These requirements are consistent with New Jersey’s mandate that public schools be open for instruction at least 180 days per year. However, because LUOA is designed to meet the graduation requirements of Virginia and not New Jersey, it is not clear whether a full-time student at LUOA would carry the same subject load as is considered full-time for students in R~’s jurisdiction.

Additionally, it is not as clear whether R~’s education through LUOA fulfills the requirements for full-time attendance under the Social Security laws. In order to be considered a full-time student, R~ must attend at least 20 hours of schooling per week. LUOA tracks online usage, and according to the guidance counselor, R~ currently averages only 15 hours per week. However, this does not capture time R~ spends doing geometry problems as part of her course work. Furthermore, the guidance counselor stated that in order to remain on track for the semester, R~ must complete two lessons per course per day, which requires at least 20 hours per week. R~ actual online attendance appears at odds with the required attendance as described by her guidance counselor. This may be attributed to additional course work R~ does offline, which is not tracked by the school. However, based on the information currently on file, R~ has not established that she meets the requirements for full-time attendance under 20 C.F.R. § 404.367(c).

CONCLUSION

In sum, it is our opinion that R~ education through Liberty University Online Academy qualifies as home schooling under New Jersey law. However, R~ has not established the requirements for full-time attendance under the Social Security regulations. Thus, based on the information currently on file, R~ cannot be considered a full-time secondary student as defined under section 202(d)(7) of the Social Security Act.

Stephen P. C~

Regional Chief Counsel

 By: Kevin J~

Assistant Regional Counsel

A parent, guardian, or other person having custody and control of a child between the ages of six and 16 in New Jersey must ensure that the child regularly attends a public school or receives equivalent academic instruction elsewhere than at a public school. Equivalent instruction may be provided in a home school. The home school instructor need not be a certified teacher. New Jersey law does not require a parent or guardian to obtain approval from the local school board before beginning a home school program, nor does New Jersey require a parent or guardian to notify the local school district of their intent to home school. The parent, guardian, or home school instructor should submit evidence that the home school program provides an education equivalent to that provided in the public schools. The student must meet Federal standards for full-time attendance and all other requirements for the payment of benefits.

On December 8, 2006, you requested information on any changes to PR 08005.033 since April 1991 regarding whether the home schooling situation under New Jersey law comports with the Social Security Act and the applicable regulations. This opinion reviews three general areas: 1) whether a bona fide New Jersey home schooling situation qualifies under section 202 (d) (7) of the Social Security Act as a school that provides elementary or secondary education; (2) whether a bona fide New Jersey home schooling situation meets the scheduled attendance requirements outlined in 20 C.F.R. § 404.367; and (3) what guidelines must be followed to demonstrate that a bona fide New Jersey home schooling situation exists. Specifically, you requested clarification on whether parents must seek approval by certain local school boards before beginning a home schooling program in New Jersey.

Although there continues to be a paucity of information available on this subject, based on the information we have been able to obtain, we have concluded that the home schooling situation under New Jersey law does not comport with the Social Security Act if the requirements of full-time attendance under 20 C.F.R. §§ 404.367(b) and 404.367(c) are not met.

1. Basic Requirements Under the Social Security Act

For the purposes of entitlement to child's insurance benefits under the Social Security Act ("the Act"), "[a]n 'elementary or secondary school' is 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." Section 202 (d) (7) (C) (i) ; accord, 20 C.F.R. § 404.367(a). Under New Jersey law, parents have a constitutional right to choose the type and character of education they feel is best suited for their children. West Morris Regional Bd. of Educ. v. Sills, 110 N.J. Super. 234, 265 A.2d 262 (1970), rev'd on other grounds, 5B N.J. 464, 279 A.2d 609, cert. denied, 404 U.S. 986 (1971) (citing Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571 (1925)). Parents or guardians appear to be restricted in their choice solely by N.J. Stat. Ann. § 18A:38-25. That statutory section provides that, for children between the ages of six and sixteen, a parent or guardian or other person having custody and control must ensure that the child regularly attends a public school or a day school which gives instruction equivalent to that provided in public school for children of similar grades and attainments or receives equivalent instruction elsewhere than at school.*/ Although New Jersey has no statute that specifically authorizes home schooling, the New Jersey Department of Education has stated that the phrase "equivalent instruction elsewhere than at school" in N.J. Stat. Ann. § 18A: 38-25 permits children to be educated at home. State of New Jersey, Department of Education, "Homeschooling Frequently Asked Questions" 2006 (see attached copy). Thus, home schooling satisfies the requirements of Section 202(d)(7)(C)(i) of the Act.

*/ In State v. Massa, the court interpreted "equivalent" as pertaining to a showing of academic equivalency, not equivalency of social development derived from group education. State v. Massa, 95 N.J. Super. 382, 231 A. 2d 252 (Morris County Ct. Law Div. 1967).

2. Attendance Requirements Under SSA's Regulations

Under the Act, "[a] full-time elementary or secondary school student, is an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the Commissioner of Social Security (in accordance with regulations proscribed by the Commissioner) in the light of the standards and practices of the schools involved." Section 202 (d)(7)(A). Thus, the statutory language leaves it to the Commissioner to define what "full time attendance" means. Therefore, whether the attendance requirements of New Jersey home schooling ultimately qualifies under the Act is necessarily contingent on whether the home school arrangement comports with SSA's regulations.

The regulations provide that an individual is a full time student if he or she is "in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and [he or she is] carrying a subject load which is considered full-time for day students under the institution's standards and practices." 20 C.F.R. § 404.367(b). The regulations further require scheduled attendance at a rate of at least 20 hours per week unless certain exceptions apply. 20 C.F.R. § 404.367(c). New Jersey law provides that regular attendance at public school shall be "during all the days and hours that the public schools are in session in the district, unless . . . the mental condition of the child is such that he cannot benefit from instruction in the school or that the bodily condition of the child is such as to prevent his attendance at school ...." N.J. Stat. Ann. § 18A:38-26. The Attorney General of New Jersey has issued a formal opinion that the public schools of New Jersey must be open for instruction not less than 180 days in the school year. Attorney General's Formal Opinion No. 19-1975. However, our review of New Jersey law reveals no similar standards regarding the duration of time or the rate of attendance during the course of study in a home school situation. As such, it appears that children involved in home schooling in New Jersey would not meet the attendance requirements of the regulations.

3. Specific Requirements for New Jersey Home Schooling Situations

We have ascertained no statutory requirement that parents seek approval by the local school board before embarking on a home schooling program. Indeed, the New Jersey Department of Education has specifically stated that a parent or guardian is not required by law to notify their public school district of their intent to educate the child elsewhere than at school. State of New Jersey, Department of Education, "Homeschooling Frequently Asked Questions" 2006 (see attached copy). The New Jersey Department of Education further explained that the "law does not require or authorize the local board of education to review and approve the curriculum or program of a child educated elsewhere than at school.... The local board of education is not required or authorized to monitor the outcomes of the child." Id.

Additionally, we have found no authority which would indicate that particular texts must be used, that testing is employed to monitor the child's progress, or that attendance standards must be maintained and verified. We have been unable to discern any other specific criteria related to home schooling, except that (1) the individual who provides the home schooling need not be a certified teacher, and (2) home schooling must be academically equivalent to that provided by the public schools, but need not provide equivalent social development.

Although the Agency received information indicating that the New Jersey Sussex County Superintendent of Schools requires prior written consent for school district approval to home school, on further investigation, this is not correct. As discussed above, New Jersey Department of Education specifically states that a parent or guardian is not required to notify the public school district of their intent to educate the child elsewhere than at school. Upon contact with New Jersey Sussex County Superintendent of Schools, they explicitly acknowledged that by law they are prohibited from requiring prior written consent to home school. They indicated that they request, but do not require, that parents provide such information as a courtesy to assist the schools in efficiently managing truancy investigations.

In conclusion, with respect to your specific question, the New Jersey Sussex County Superintendent of Schools cannot according to New Jersey law, and does not in practice, require parents to seek approval from the local school board before beginning a home schooling program in New Jersey. However, even where a student is properly home schooled under the laws of New Jersey, such a student may not be eligible for child's benefits as a full-time elementary or secondary student if the duration of time and rate of attendance requirements of 20 C.F.R. §§ 404.367(b) and 404.367(c) are not met.

Barbara L. S~

Chief Counsel, Region II

By: Gina S~

Assistant Regional Counsel

PR 07-082 above, supersedes this opinion.

New Jersey law recognizes home schools as educational institutions that provide elementary or secondary education under its compulsory school attendance statutes. The law requires that the parent or guardian of a child between the ages of 6 and 16 must have the child attend a public school or a day school or have the child receive equivalent instruction elsewhere than at school.

New Jersey law does not require particular texts, maintenance or verification of attendance, or testing to monitor a child's progress. The law provides that home schooling be academically equivalent to that provided by the public schools, but the home school instructor need not be a certified teacher. Home schools do not need to provide social development equivalent to that provided by the public schools. Although the Department of Education of at least one New Jersey county requires the child's parent to request approval before beginning a home school program, New Jersey law has no such requirement.

The child's parent or guardian should provide evidence from the local school board that the instruction the child receives in his/her home school program complies with the New Jersey requirement that it be equivalent to the instruction provided in a public school.

The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

In your February 27, 1989 memorandum, you requested our opinion as to whether a home schooling situation under New Jersey law comports with the Social Security Act and the applicable regulations, so as to qualify an individual for child's benefits as a student. Specifically, you requested an opinion on the following three issues: (1) whether a bona fide New Jersey home schooling situation qualifies under section 202 (d) (7) of the Social Security Act as a school that provides elementary or secondary education; (2) whether a bona fide New Jersey home schooling situation meets the scheduled attendance requirements outlined in 20 C.F.R. § 404.367; and (3) what specific guidelines must be followed to demonstrate that a bona fide New Jersey home schooling situation exists. There is a paucity of information available on this subject. Based on the information which we have been able to obtain, we offer the following opinion.

1. Basic Requirements Under the Social Security Act

For the purposes of entitlement to child's insurance benefits under the Social Security Act ("the Act"), "[a]n 'elementary or secondary school' is 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." Section 202 (d) (7) (C) (i) ; accord, 20 C.F.R. § 404.367(a). It is clear that, under New Jersey law, parents have a constitutional right to choose the type and character of education they feel is best suited for their children. West Morris Regional Bd. of Educ. v. Sills, 110 N.J. Super. 234, 265 A.2d 262 (1970), rev'd on other grounds, 5B N.J. 464, 279 A.2d 609, cert. denied, 404 U.S. 986 (1971) (citing Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571 (1925)). It would appear that parents or guardians are restricted in their choice solely by N.J. Stat. Ann. § 18A:38-25. That section provides that, for children between the ages of six and sixteen, a parent or guardian must ensure that the child regularly attends a public school or a day school which gives instruction equivalent to that provided in public school or receives equivalent instruction elsewhere than at school.*/ Thus, a home schooling situation could fall within the third option and satisfy the requirements of Section 202(d)(7)(C)(i) of the Act.

2. Attendance Requirements Under SSA's Regulations

Under the Act, "[a] 'full-time elementary or secondary school student, is an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the secretary (in accordance with regulations proscribed by him) in the light of the standards and practices of the schools involved." Section 202 (d) (7) (A). Thus, the statutory language does not define the attendance requirements, but rather incorporates by reference, the regulations implementing this particular section of the Act. Therefore, whether or not the attendance requirements of New Jersey home schooling ultimately qualifies under the Act, is necessarily contingent on whether or not the home school arrangement comports with SSA's regulations.

The regulations provide that an individual is a full time student if he or she is "in full-time attendance in a day or evening non--correspondence course and [is] carrying a subject load which is considered full-time for day students under the institution's standards and practices, with scheduled attendance at the rate of at least 20 hours per week and a course of study which is at least 13 weeks in duration." 20 C.F.R. § 404.367(b). New Jersey law provides that regular attendance at public school shall be "during all the days and hours that the public schools are in session, unless . . . the mental condition of the child is such that he cannot benefit from instruction in the school or that the bodily condition of the child is such as to prevent his attendance at school." N.J. Stat. Ann. § 18A:38-26. The Attorney General of New Jersey has issued a formal opinion that the public schools of New Jersey must be open for instruction not less that 180 days in the school year. Attorney General's Formal Opinion No. 19-1975 (copy attached). However, our review of New Jersey law reveals no similar standards regarding the time to be spent during the course of study in a home school situation. As such, it appears that children involved in home schooling in New Jersey would not necessarily meet the attendance requirements of the regulations.

*/ In a criminal prosecution of a parent or guardian for failure to comply with N.J. Stat. Ann. § 18A:38-25, it is incumbent on the parent or guardian to produce some evidence that the child is receiving equivalent instruction elsewhere than at school. However, the ultimate burden of persuasion remains with the state as to whether the case falls within the statutory exception to mandatory school attendance. State v. Vaughn, 44 N.J. 140, § , 207 A.2d 537, 540 (1965).

3. Specific Requirements for New Jersey Home Schooling Situations

We have ascertained no statutory requirement that parents seek approval by the local school board before embarking on a home schooling program. Nonetheless, the Department of Education of at least one county has chosen to require such prior written requests for school district approval. See Memorandum to Chief School Administrators/Principals from Sussex County Superintendent of Schools (copy attached).

Additionally, we have found no authority which would indicate that particular texts must be used, that testing is employed to monitor the child's progress or that attendance standards must be maintained and verified. Indeed, we have been unable to discern any other specific criteria related to home schooling, except that (1) the individual who provides the home schooling need not be a certified teacher and (2) home schooling must be academically equivalent to that provided by the public schools, but need not provide equivalent social development. State v. Massa, 95 N.J. Super. 382, 231 A.2d 252, 256-257 (Morris County Court 1967).