This memorandum is in response to your request for advice concerning whether the above-referenced
claimant, who received home schooling, was properly granted child's benefits as a
full-time student.
Statement of Facts
Scott M~, who was born on June 14, 1979, was entitled to child's insurance benefits
beginning in March, 1994. He received benefits beginning in April 1994 and his benefits
were terminated in August, 1997.1/ Scott had been enrolled in the Altmar Parish Williamstown
Central District School ("District School") until October 2, 1992. At that time he
left the District School to receive home schooling. (Letter of Karen A. O~ dated October
15, 1996). On January 29, 1997, High School Principal Bruce D. A~ wrote to the Social
Security Administration ("SSA") that the Superintendent of Schools for the Board of
Education ("the Superintendent"), had approved Scott as a student on home instruction.
The letter also indicated that the home instruction was equivalent to the basic curriculum
Scott would be receiving if he were enrolled in the District School. (Letter of Bruce
D. A~, High School Principal dated January 29, 1997).
On February 3, 1997, Scott A. M~, filed a "Student's Statement Regarding Attendance"
(Form SSA-1372) with SSA, that indicated that from July 1 1995 through May 31, 1997,
he had been in attendance in home school for 25 hours per week. Margaret D~, Scott's
mother, stated that she began home schooling Scott in 1992 and that his curriculum
came from three different GED books. Scott and Mrs. D~ contend that his twelfth year
of school would not be completed until June 1998.
SSA's Standard for Determining Whether a Child Participating in Home Schooling is
Eligible for Child's Benefits
Under the Social Security Act ("the Act"), a child is entitled to child's insurance
benefits if he or she; (1) is the child of an individual entitled to old-age or disability
insurance benefits, (2) is dependent on that individual, (3) is unmarried, (4) (i)
is under age 18 (ii) or he or she was a full time elementary or secondary school student
and had not attained 19 years of age.2/ A full-time secondary student is an individual
who is in full-time attendance at a secondary school "as determined by the Commissioner
of Social Security . . . in the light of the standards and practices of the schools
involved."3/
The Commissioner's regulations provide that a student who is instructed in secondary
education at home in accordance with a home school law of the State in which the student
resides may be eligible for child's benefits. As a threshold matter, the child's home
schooling instructor must submit evidence that legal requirements for home schooling
are met.5/ Depending on State requirements, such evidence might include a copy of
the certificate of intent that is filed with the local school or school district,
documentation that State-mandated tests were taken, a list of the courses being taught,
and a copy of the attendance log or chart.6/
If the state law requirements for home schooling are met, the Commissioner's regulations
further provide that, to be eligible for child's benefits, the student must be carrying
a subject load which is considered full-time for day students under standards and
practices set by the State. Additionally, the child's scheduled attendance must be
at the rate of at least 20 hours per week, except under limited circumstances.7/ The
home school instructor is the certifying school official for full-time attendance
purposes.
New York State Law Pertaining to Home Schooling
Under New York State law, a parent is entitled to instruct a child at home. Instruction
given to a minor elsewhere than at a public school shall be at least substantially
equivalent to the instruction given to minors of like age and attainments at the public
schools of the city district where the minor resides. The local public school board
of education, through the superintendent of schools, is responsible for determining
whether the home taught child receives substantially equivalent instruction.10/ New
York law requires the parent to file an annual certificate of intent to home school
and an individualized home instruction plan ("IHIP") to the Superintendent of Schools
that complies with certain requirementals set forth in Section 100.10 of the education
regulations. An IHIP must contain, among other things, a list of syllabi, curriculum
materials, textbooks, or plans of instruction to be used in each required course,
as well as dates for submission of quarterly reports, and the names of the individuals
providing instruction.12/
Under New York law, a child who attends upon instruction elsewhere than at a public
school must generally attend instruction for at least as many hours and within the
hours specified for public schools.13/ However, a child may be permitted to attend
for a shorter school day or for a shorter school year or both, provided that, in accordance
with the regulations of the state education department, the instruction he or she
receives has been approved by the school authorities as being substantially equivalent
in amount and quality to that required by the compulsory education law. N.Y. Educ.
L. § 3210(2)(d). The home instruction regulations require such a child to attend the
"substantial equivalent" of 180 days of instruction. 14/ Moreover, children in grades
7 through 12 must complete 990 cumulative hours of home instruction per year, which
extends from July 1st to June 30th.15/ Records of attendance must be maintained by
the parent and made available to the school district upon request.16/
Significantly, New York requires the parent to maintain attendance records and provide
the school district with a quarterly report containing the number of hours of instruction
during the quarter, a description of the material covered in each subject listed in
the IHIP, a grade for the child in each subject or a written progress narrative, and
a written explanation in the event that less than eighty percent of the amount of
the course materials planned for that quarter has been covered in any subject. Such
quarterly reports must be furnished to the District on or before the dates specified
by the parent in the IHIP. Also, at the time of filing of the fourth quarterly report,
the parent must file an annual assessment which includes the results of a commercially
published norm referenced achievement test or alternative form evaluation meeting
specified requirements.19/
Discussion
In our view, Scott has not established that his home schooling program meets the legal
requirements for home schooling under New York law. The principal of Scott's school
stated in January, 1997 that the Superintendent approved Scott as a student on Home
instruction that was equivalent to the District School's curriculum. However, there
is no indication that Scott had been approved prior to January, 1997. Scott began
home schooling in October 2, 1992. He was awarded benefits beginning in March, 1994
and his benefits were ceased in August, 1997. There is no evidence that Scott was
in an approved home instruction program between March, 1994 and January, 1997.
Moreover, it is unclear whether Scott's program that was apparently approved by the
Superintendent complied with the requirements of New York State law as discussed above.
On January 29, 1997 the school principal indicated that Scott had been approved as
a student on Home Instruction that was equivalent to the basic curriculum he would
be receiving if he were enrolled in the District School. Letter of Bruce D. A~, High
School Principal dated January 29, 1997. However, there is no indication that Scott's
mother submitted an IHIP that complied with New York state regulations or that she
submitted quarterly reports and an annual assessment as required by New York law.
Nor does the record contain any statement by a parent or school official about student's
attendance (Form SSA-1372) or other documentation regarding Scott's attendance.20/
Thus, based on the given information, we cannot conclude that Scott's home schooling
satisfied the requirements of New York law.
1/ See MBR dated 6/29/95 and memorandum from Anne J. dated May 16, 1998.
2/ 42 U.S.C. § 402(d)(1); see 20 C.F.R. 404.350(a).
3/ 42 U.S.C. § 402(d)(7)(A).
4/ 20 C.F.R. § 404.367(a)(1); see POMS RS 00205.275(B).
5/ 61 Fed. Reg 38361 (1996); see also POMS § RS
00205.275(B).
6/ Id.
7/ 20 C.F.R. § 404-367(b) and (c).
8/ 61 Fed. Reg. 38361 (1996); POMS § RS 00205.275(B).
9/ N.Y. Educ. L. § 3204(2).
10/ In the Matter of Blackwelder, 505 N.Y.S.2d 759, 139 Misc.2d 776 (N.Y. Sup. Ct.
1988); In the Matter of Adam D., 505 N.Y.S.2d 809, 132 Misc.2d 797 (Fam. Ct. 1986).
11/ See N.Y. Educ. L. §§ 3204, 3210(2), 3212(2)(d); N. Y. Comp. Codes R. & Regs., tit. 8,
§ 100.10(a)-(e).
12/ N.Y. Comp. Codes R. & Regs. tit. 8 § 100.10 (d) and (e).
13/ N.Y. Educ. L. § 3210(2)(a).
14/ N.Y. Comp - Codes R. & Regs. tit. 8, § 100.10 (f)(1).
15/ Id. at § 100.10 (b)(1), (f)(2).
16/ Id. at § 100.10(f)(4).
17/ Id. at § 100.10(f)(4), (g).
18/ Id. at § 100.10 (g).
19/ Id. at § 100.10(h).
20/ C.f. POMS RS 00205.275 example 3.