Virginia State Law recognizes home schooling as an educational institution that satisfies the compulsory attendance requirements when specific legal requirements are met. However, Virginia law requires a school board to excuse from attendance at school any pupil who, together with his parents, by reason of bona fide religious training or belief is conscientiously opposed to attendance at school.

Individuals who receive a religious exemption from compulsory school attendance are not required to have any additional contact with the school system and are not subject to Virginia’s requirements for home instruction of children. However, in order to receive federal student benefits, all home schooled children in Virginia, whether having received a religious exemption or not, must prove that they meet the requirements of Virginia’s home school law. The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

QUESTIONS PRESENTED AND BRIEF ANSWER

You have asked whether Robert’s religious exemption from Virginia’s compulsory school attendance law also exempts him from satisfying the federal standards for full-time attendance pursuant to RS 00205.300.^[1] We have determined that Robert’s religious exemption from Virginia’s compulsory school attendance law does not exempt him from satisfying the federal standards for full-time attendance in order to receive student benefits.

You also inquired whether the prior Virginia precedents relating to home schooling in PR 08005.052 should be revised. We believe they should be revised. Although there is an annual requirement to notify a superintendant of an intention to home school a child, there is no requirement to apply annually for a religious exemption once that exemption has been granted to fully excuse a student from attending school. Therefore, this opinion supersedes PR 04-084 and PR 03-105 with regard to Virginia’s religious exemption law.

BACKGROUND

Robert, a resident of Campbell County, Virginia, will attain age 18 in January of 2013. On September 22, 2009, the Campbell County school board granted the family a religious exemption from compulsory school attendance for Robert and his brother Richard. According to the information you provided, SSA awarded Richard student benefits based on the family’s religious exemption, and terminated his benefits in February of 2012, two months after Richard attained age 19. ^[2]

On November 3, 2012, Elizabeth, Robert and Richard’s mother, submitted an SSA-1372 form indicating that she was home schooling Robert and that he was scheduled for 30 hours of education per week until June of 2013. We assume that she has provided no information indicating that Robert’s education complies with Virginia’s requirements for the home instruction of children under Va. Code. Ann. § 22.1-254.1 . ^[3] On November 14, 2012, John, the Assistant Superintendant of Campbell County Public Schools, notified SSA that once a religious exemption to Virginia’s compulsory school attendance law has been approved, a parent is not required to have any additional contact with the school system and is not required to comply with Virginia’s home schooling law. In other words, there is no requirement once the religious exemption is granted that a parent request annual exemptions.

DISCUSSION

I. Pertinent Legal Authority

A. Federal Law

Under 20 C.F.R. § 404.352(b)(1), entitlement to child’s benefits ends in the month before the child turns 18, if the child is not disabled or is not a full-time student. A child may receive student’s benefits beyond the age of 18 until the month before turning age 19 provided the child is disabled, or is a qualified full-time student who is not disabled. 20 C.F.R. § 404.352(b)(3) An individual may be entitled to benefits if he or she is a full-time elementary or secondary student and attends a school that provides elementary or secondary education as determined under the law of the state or other jurisdiction in which it is located. 20 C.F.R. § 404.367(a). He or she is also entitled to benefits if instructed in elementary or secondary education at home in accordance with the home school law of the state or other jurisdiction in which the individual resides. 20 C.F.R. § 404.367(a)(1).

Section RS 00205.275 of the POMS reiterates that in order for a home schooled student to qualify for federal student benefits, in addition to the other stated requirements, the home school must meet the requirements of state law in which the home school is located.

B. Virginia Law

Generally, every child in Virginia who has reached the fifth birthday on or before September 30 of any school year and has not passed the eighteenth birthday is subject to the state’s compulsory school attendance law. Va. Code Ann. § 22.1-254. Virginia recognizes home schooling as an educational institution that satisfies the compulsory attendance requirements when specific legal requirements are met. Va. Code Ann. §§ 22.1-254, 22.1-254.1. However, Virginia law requires a school board to excuse from attendance at school any pupil who, together with his parents, by reason of bona fide religious training or belief is conscientiously opposed to attendance at school. Va. Code Ann. § 22.1-254B.1. Individuals who receive a religious exemption from compulsory school attendance are not required to have any additional contact with the school system and are not subject to Virginia’s requirements for home instruction of children. Va. Code Ann. § 22.1-254I.5. ^[4]

II. Analysis

Based on our review of the law, Robert’s religious exemption from Virginia’s compulsory school attendance law does not exempt him from satisfying all of the federal requirements for receiving student benefits, including the requirement of full-time school attendance. In order to be considered a full-time student for the purpose of receiving federal student benefits, Robert must demonstrate that his home education program complies with Virginia’s home school law. We assume that Robert’s mother has submitted no proof that his home education program complies with Virginia’s legal standards for the home instruction of children. Accordingly, we conclude that Robert has not satisfied the federal standards for full-time attendance, and that his application for student benefits should be denied. Alternatively, we suggest further development regarding whether he can meet the federal standards.

You also asked us to advise whether Richard’s claim should be reopened and denied, effective August of 2010, when he was initially awarded student benefits. Based on the information provided, it is our opinion that Richard’s claim should be reopened and evaluated to determine whether he met Virginia’s legal requirements for home schooling. The religious exemption excused him from full-time attendance for the purposes of state law, but did not qualify him for federal student benefits absent a home schooling program that satisfied Virginia law, as well as the federal standards for full-time attendance. Although Robert and Richard are not required by the state of Virginia to comply with its home school law due to their religious exemption from compulsory school attendance, they are still required to provide proof that they are complying with Virginia’s home school law in order to satisfy federal standards for receiving student benefits.

You also asked whether the precedents in POMS PR 08005.052 should be updated. It is our opinion that PR 04-084 and PR-03-105 should be superseded by this opinion with regard to Virginia’s religious exemption law because Virginia does not require the parents of a student who has been granted a religious exemption from compulsory school attendance to notify the school board annually of the intention to home school their child. However, as discussed herein, in order to receive federal student benefits, all home schooled children in Virginia, whether having received a religious exemption or not, must prove that they meet the requirements of Virginia’s home school law.

CONCLUSION

Robert’s religious exemption from Virginia’s compulsory school attendance law does not exempt him from meeting the federal standards for full-time attendance in order to receive student benefits. We assume that Robert has not submitted information demonstrating that his home school program complies with Virginia’s home school law. Therefore, he has not demonstrated that he meets the federal standards for full-time attendance, and his application for student benefits should be denied. Alternatively, we suggest further development regarding whether he can meet the federal standards.

Further, we recommend that Richard’s claim be reopened and evaluated to determine whether he met the requirements of Virginia’s home schooling law.

Finally, PR 04-084 and PR-03-105 are superseded by this opinion with regard to Virginia’s religious exemption law because Virginia does not require the parents of a student who has been granted a religious exemption from compulsory school attendance to notify the school board annually to obtain any subsequent excuse from school attendance. However, a student seeking to satisfy the federal standards for full-time attendance must qualify annually for the Virginia home schooling requirements.

Eric P. Kressman

Regional Chief Counsel

By: ____________

Heather Benderson

Assistant Regional Counsel

Virginia law now requires a home school parent to have a high school diploma instead of a baccalaureate degree from an accredited institution of higher education, and this opinion modifies PR 04-084 (2/25/04) and PR 03-105 (3/13/03).

QUESTIONS PRESENTED

Whether Faron , a home-schooled student in Virginia, qualifies as a full-time student entitled to receive student's benefits.

SUMMARY

We have reviewed the information you provided and have researched the relevant provisions of Virginia and federal law. Based on this information, it is our opinion that Faron meets all federal and state law requirements to qualify as a full-time student entitled to receive student's benefits.

BACKGROUND

According to the information you provided, Faron was born on March. He attained age 18 in March 2007, at which time his student benefits were stopped. Faron resides with his father in Cana, Virginia.

Faron is enrolled in a program of home schooling using materials provided by A Beka Academy, which has been approved by the State of Virginia. According to the Form SSA-1372, "Student's Statement Regarding School Attendance," Faron's current home-school year began on September 1, 2006 and will end on June 13, 2007. Faron attends classes for 35 hours per week. Faron's father, Faron , is home-schooling Faron. Faron has submitted a diploma from Carroll County High School, Hillsville, Virginia, certifying his graduation from the school in June 1980.

An August 25, 2006 letter from Strader , Assistant Superintendent for Instruction, Carroll County (Virginia) Public Schools, indicates that Faron has been approved to home school Faron for the 2006-2007 school year. Faron must submit an official progress report to the Division Superintendent by August 1, 2007. The file also contains a June 30, 2006 letter from Strader, addressed to Faron , providing Faron's Stanford 10 test results from the Spring 2006 administration. Faron scored in the 13th percentile in mathematics. Because the state requirement is the 23rd percentile, Faron has been advised to provide specific instruction in this area in order to bring Faron's score up to the 23rd percentile.

DISCUSSION

1. The Applicable Federal Regulations

The federal regulations at 20 C.F.R.§ 404.352 (2006) provide that entitlement to child's benefits ends in the month before the month that the child turns age 18, if the child is not disabled or the child is not a full-time student. That regulation further provides that a child may receive student's benefits beyond the age of 18 until the month before turning age 19 provided the child is disabled, or is a qualified full-time student who is not disabled. An individual may be entitled to benefits if he or she is a full-time elementary or secondary student and attends a school which provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located. 20 C.F.R. § 404.367 (2006). He or she is also entitled to benefits if instructed in elementary or secondary education at home in accordance with the home school law of the state or other jurisdiction in which the individual resides. 20 C.F.R. § 404.367(a)(1).

Home schooling is subject to several conditions. The student must meet the federal standards for full-time attendance; the law of the state in which the home school is located must recognize home schooling as an educational institution; the home school the student attends must meet the requirements of the state law in which the home school is located; and the student must meet all the other requirements for benefits. 20 C.F.R. § 404.367; Program Operations Manual System (POMS) RS 00205.275(B). In order to satisfy the federal standards for full-time attendance, a student must be enrolled in a non-correspondence course of at least 13 weeks duration for at least 20 hours per week. 20 C.F.R. § 404.367(b)-(c); POMS RS 00205.300(C). Here, Faron is home schooled in Virginia.

2. Virginia Law

Every child in Virginia who has reached the fifth birthday on or before September 30 of any school year and has not passed the eighteenth birthday is subject to the state's compulsory school attendance law. Va. Code Ann. § 22.1-254. Virginia has approved home schooling as an acceptable alternative form of elementary or secondary education. Va. Code Ann. § 22.1-254.1.

Parents may home school their children in Virginia if they obtain a religious exemption pursuant to Va. Code Ann. § 22.1-254(B) or if they meet the following requirements:

The parent must (i) hold a high school diploma; (ii) possess qualifications prescribed by the Board of Education; (iii) have enrolled the child in a correspondence course approved by the Superintendent of Public Instruction; or (iv) provide a program of study or curriculum that satisfies Board of Education standards and provide evidence that the parent is able to provide an adequate education for the child. Va. Code Ann. § 22.1-254.1(A).

(2) The parent must annually notify the division superintendent of the parent's intention to home school the child and provide a description of the curriculum to be followed. Va. Code Ann. § 22.1-254.1(B).

(3) The parent must provide the school board with standardized achievement test scores or other evidence that the child is achieving an adequate level of educational growth and progress. Va. Code Ann. § 22.1-254.1(C).

3. Faron's Home Schooling Meets the Requirements of Virginia Law

Based on the information provided, Faron satisfies the Virginia standards for home schooling.

Faron's father, Faron , has submitted a copy of his diploma from Carrol County High School, certifying his graduation from the school in June 1980 and, thus, his eligibility to provide a home-school education for his son. Faron has received written approval from the Assistant Superintendent for Instruction for Faron's home schooling program for the 2006-2007 school year. Faron is administered the Stanford 10 test annually, and Faron's father is working with the Assistant Superintendent to assure that Faron achieves the state-mandated percentile scoring on the Stanford 10 test.

Accordingly, we conclude that the requirements of state law have been met in this case.

Faron Satisfies the Federal Standards for Full Time Attendance

In order to be considered a full-time elementary or secondary student, an individual must satisfy all of the conditions described in the federal regulation at 20 C.F.R.§ 404.367(a)-(c). Paragraph (a) of the regulations defines "full-time student" as one who is attending a school program that provides elementary or secondary education as determined under the law of the state in which the school is located. It provides that an individual may satisfy the definition of full-time student if he participates in instruction provided at home in accordance with the home-school law of the state in which the individual resides. 20 C.F.R. § 404.367(a)(1). Here, Faron participates in home schooling in accordance with Virginia Law.

Paragraph (b) of the regulation provides that the course must be a non-correspondence course of at least 13 weeks duration; the individual must carry a subject load that is considered full time for day students under the institution's standards and practices. If the individual is in a home-school program, the individual must carry a subject load that is considered full-time for day students under the standards and practices set by the state. 20 C.F.R. § 404.367(b). According to the information provided, Faron's school year began September 1, 2006 and will end June 13, 2007, a period well exceeding 13 weeks in duration. He is carrying a full-time subject load. His courses include English 12, Economics, American Government, Bible Studies (Old and New Testament), a Performing Arts Elective, and an additional 2 credits in electives.

Although A Beka Academy's program shares some characteristics of a correspondence school, it does not fit squarely into the definition of a correspondence school. POMS RS 00205.330 defines a correspondence school as "a school that teaches by mailing lessons and exercises to the student. Upon completion, the student returns the exercises to the school for grading." Generally, a student is not in full-time attendance based on correspondence school courses. However, it is Social Security's policy that if a parent/teacher is instructing the child using material from the correspondence school, it can be viewed as home schooling, if all other requirements are met. POMS RS 00205.275C; RS 00205.330.

In this case, Faron's father, Faron , is instructing Faron in accordance with A Beka Academy's program of instruction, using A Beka Academy's course material. Pursuant to the A Beka Academy program, Faron is required to supervise all work, grade quizzes and tests, and review Faron's compositions. A Beka Academy provides report cards and maintains transcripts. However, Faron is required to administer and grade all examinations and send the required graded work to A Beka Academy for evaluation in accordance with A Beka Academy's academic calendar. Accordingly, we conclude that Faron ‘s home schooling program is not enrollment in a correspondence course.

Finally, paragraph (c) of the regulation provides that to be in full-time attendance, an individual's scheduled attendance must be at the rate of at least 20 hours per week. 20 C.F.R. § 404.367(c); POMS RS 00295.300C. The information provided on form SSA-1372 indicates that Faron attends school for 35 hours per week. Therefore, his attendance satisfies the requirements of 20 C.F.R. § 404.367(c).

CONCLUSION

Based on the evidence provided, Faron appears to meet all federal and state requirements to qualify as a full-time student based on his home schooling.

Michael McGaughran

Regional Chief Counsel

By: ____________

Thomas C. Buchana

Assistant Regional Counsel

Virginia State law recognizes home schooling as a form of elementary or secondary education. A student may be exempted from Virginia's compulsory attendance law either by obtaining a religious exemption or by meeting other statutory requirements.

To obtain a religious exemption, the student's parents must notify the school board annually of the intention to home school their child because of their religious beliefs, and they must obtain an excuse from school attendance.

In order to home school a child without obtaining a religious exemption, the parent/teacher must provide evidence of the following:

• •

  The parent/teacher must hold a baccalaureate degree from an accredited institution of higher education; or he/she must have qualifications prescribed by the Board of Education; or he/she must have enrolled the student in a correspondence course approved by the Superintendent of Public Instruction; or he/she must provide both a course of study that satisfies Board of Education standards and also evidence that he/she has the ability to provide an adequate education for the child; and

• •

  The parent must notify the division superintendent annually in August of the intention to home school the child and must provide a description of the curriculum; and

• •

  The parent must provide the School Board with the results of achievement tests or provide an evaluation that indicates to the division superintendent that the child is achieving adequate educational progress; and

• •

  The parent must comply with immunization requirements (unless he/she objects to immunization on religious grounds) as if the child were enrolled in and attending public school. The parent(s) must only furnish this information if Virginia requests it.

The home school instructor should submit evidence that Virginia laws are being met. The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

QUESTIONS PRESENTED

This is in response to your January 13, 2004, request for an opinion as to whether Benjamin a home-schooled student, is entitled to student benefits. The specific issues to be addressed are: (1) whether Benjamin's home schooling program meets the requirements under Virginia law (2) whether Benjamin's home schooling program meets Federal standards (3) whether Benjamin is in full-time attendance under Federal law; and (4) whether student benefits should be paid.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia and Federal law regarding home schooling and full-time attendance. Based on our research, we have concluded that while Benjamin satisfies Federal standards for full-time attendance, Benjamin has not provided evidence that his home schooling program satisfies Virginia law. Accordingly, he is not entitled to student benefits at this time.

BACKGROUND

The following is a summary of the relevant facts in this matter. Benjamin was born on October 25, 1985, and is eighteen years old. Benjamin and his family reside in Crockett, Virginia.

On September 18, 2003, Joseph , Assistant Superintendent for Instruction, notified Benjamin's father that he had received his application to provide home instruction for Benjamin. Superintendent Joseph stated that the Wythe County School Board had approved the application. However, Superintendent Joseph notified Benjamin's father that, under the law, his remaining responsibility was to arrange for annual testing and provide evidence of a composite score at or above the fourth stanine on a battery of achievement tests which have been approved by the Virginia Board of Education, per the Code of Virginia §22.1-254.1. The Code of Virginia §22.1-254.1(C) indicates that the scores must be provided by August 1st of the following school year. Alternatively, a parent can provide an evaluation or assessment which, in the judgment of the division superintendent, indicates that the child is achieving an adequate level of educational growth. Code of Virginia §22.1-254.1(C )(ii).

Rollie , Assistant Superintendent of Administration at Wythe County School Board completed an SSA-1372, Student Statement Regarding School Attendance, on September 23, 2003. Superintendent Rollie’s certified that Benjamin's school year began on August 25, 2003, and would end on August 31, 2004. He also certified that Benjamin was scheduled to attend instruction thirty hours per week and that the course of study was at least thirteen weeks in duration. Benjamin's anticipated graduation date was August 2, 2004. On another SSA-1372 Benjamin's father indicated that he was Benjamin's teacher.

The SSA-1372 certified by Superintendent Rollie’s reflects that Benjamin was educated at home the previous year. As evidence of educational progress, Benjamin's father submitted SAT scores taken in the previous school year, May 2003, that indicated a verbal score of 490 and a math score of 450. The verbal scores were in the 43rd percentile of college bound seniors nationally and 41st percentile statewide. The math scores were in the 28th percentile nationally and the 30th percentile statewide.

DISCUSSION

You have asked for an opinion on whether Benjamin's home schooling program meets the requirements of Virginia law and Federal standards and therefore entitles him to student benefits. Under the Commissioner's regulations, an individual who has attained age eighteen may be eligible for child's benefits if he is a full-time student. 42 U.S.C. § 402(d)(1), (7); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2003); Program Operations Manual System (POMS) RS 00205.001(A). A home-schooled student is accorded full-time student status where four specific criteria are met. Those criteria are as follows:

1. (a) 

   the student meets Federal standards for full-time attendance;

2. (b) 

   the law of the state in which the home school is located recognizes home schooling as a legitimate educational institution;

3. (c) 

   the home school which the student attends meets the requirements of the law of the state in which the home school is located; and

4. (d) 

   the student meets all other requirements for benefits.

20 C.F.R. § 404.367; POMS RS 00205.275(B). The student's home school instructor is responsible for submitting evidence that state requirements for home schooling are met. POMS RS 00205.275(C).

In determining whether Brandon's home schooling entitles him to student benefits, the first inquiry is whether he meets federal standards for full-time attendance. To meet federal standards for full-time attendance, the student must be:

1. (a) 

   scheduled for secondary level school attendance at the rate of at least twenty hours per week;

2. (b) 

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

3. (c) 

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

20 C.F.R. § 404.367; POMS RS 00205.300(C).

According to the SSA-1372 submitted by Brandon's mother, Brandon is scheduled for twenty hours of education per week, fifty-two weeks per year. In addition, Brandon is being home schooled and is not enrolled in a correspondence course. Accordingly, Brandon meets federal standards for full-time attendance.

The second inquiry is whether the law of the state in which the home school is located recognizes home schooling as a legitimate educational institution. Brandon and his family are domiciled in Virginia, which recognizes home schooling as a legitimate form of elementary or secondary education. See Va. Code Ann. § 22.1-254.1 (stating that “instruction of children by their parents is an acceptable alternative form of education under the policy of the Commonwealth of Virginia”). Accordingly, Brandon has met the second requirement for obtaining student benefits.

The third inquiry is whether the home school Brandon attends satisfies the requirements of Virginia law. Based on the information that you have provided to us, it does not. While home schooling is a permissible form of education in Virginia, any parent who elects to provide home instruction in lieu of school attendance must comply with certain requirements of the Virginia Code. Va. Code Ann. §§ 22.1-254, 22.1-254.1, 22.1-271.4.

Parents may home school their child in Virginia if they obtain a religious exemption pursuant to Va. Code Ann. § 22.1-254(B) or if they meet the following requirements:

(1) The parent/teacher must provide evidence of one of the following: (i) that he holds a baccalaureate degree from an accredited higher education institution; (ii) that he has qualifications prescribed by the Board of Education; (iii) that he enrolled the student in a correspondence course approved by the Superintendent of Public Instruction; or (iv) that he provides a program of study or curriculum which satisfies Board of Education standards, and provides evidence that he is able to provide an adequate education for the child. Va. Code Ann. § 22.1-254.1(A).

(2) The parent(s) must annually notify the division superintendent in August of their intention to home school their child and provide a description of the curriculum to be followed. Va. Code Ann. § 22.1-254.1(B).

(3) The parent(s) must provide the school board with the results of achievement tests or submit an evaluation or assessment, which, in the division superintendent's judgment, indicates that the child is achieving an adequate level of educational growth and progress. Va. Code Ann. § 22.1-254.1(C).

(4) The parent(s) must comply with immunization requirements as if the child was enrolled in and attending school unless they object on the grounds that immunization conflicts with their religious beliefs. Va. Code Ann. §§ 22.1-271.4, 32.1-46(D)(1).

Based on the information you have provided to us, it is not clear whether Benjamin's father has complied with all of Virginia's requirements for home schooling. Because there is no evidence Benjamin's father has obtained a religious exemption pursuant to Va. Code Ann. § 22.1-254(B), he must meet the criteria set forth in Va. Code Ann. §§ 22.1-254.1, 22.1-271.4. Benjamin's father has complied with the first requirement because he has submitted copies of his bachelor of science degree in business administration, as well as his master's degree in social work. Benjamin's father evidently satisfied the second requirement because his application was approved by the Wythe County School Board as indicated in the September 18, 2003, correspondence. In addition, the file contains the SSA-1372, the Student's Statement Regarding School Attendance, in August 2003, which was signed by Rollie’s, Assistant Superintendent of Administration at Wythe County School Board, as well as a list of courses.

With regard to the third requirement, however, the correspondence from the Assistant Superintendent, Joseph, indicates that Benjamin was required to score a composite score at or above the fourth stanine on a battery of achievement tests that had been approved by the Virginia Board of Education, per the Code of Virginia §22.1-254.1. The correspondence further indicated that Benjamin's father would need to make his own arrangements for the testing. The Code of Virginia §22.1-254.1(C) provides that the scores must be submitted by August 1st of the following school year. Therefore, we recognize that Benjamin's father need not submit this evidence until August 1, 2004.

The evidence provided does not indicate that Benjamin has submitted the evidence of acceptable progress for the current school year. Instead, the file contains only SAT scores taken in the previous school year, May 2003, which indicated a verbal score of 490 and a math score of 450. The verbal scores were in the 41st percentile of college bound seniors statewide and the 43rd percentile nationally. The math scores were in the 30th percentile statewide and the 28th percentile nationally. Although the SSA-1372 certified by Superintendent Rollie’s reflects that Benjamin was educated at home the previous year, the file does not contain any evidence to indicate that these SAT scores were accepted, in lieu of the required Stanford Form 9 Standardized Achievement Test, as evidence of educational progress for the previous school year. Submission of any test other than the Stanford Form 9 is subject to the superintendent's judgment. Therefore, it is unclear whether Benjamin's father satisfied this state requirement for the current school year and whether the documentation submitted for the previous school year was accepted.

We recommend further development of the record because the file does not reflect that Benjamin has submitted evidence of adequate progress for the current school year. To satisfy this state requirement, Benjamin's father may submit a letter from the superintendent indicating that Benjamin has shown adequate levels of academic progress in the current school year. Because the documentation for the current school year is not required to be submitted until August 1, 2004, we believe a statement from the superintendent indicating that the documentation Benjamin provided from the previous school year was determined to be evidence of adequate progress would be acceptable, in lieu of scores from the current school year.

Finally, there is no evidence that Benjamin's father has either complied with Virginia's immunization statute or objected to immunization on the basis of religion. However, the Code of Virginia does not require parents to supply this information unless requested. Va. Code Ann. §§ 22.1-254.1, 22.1-271.4. Nevertheless, because Benjamin's father's application was approved for the current school year, the record supports a finding that this requirement was satisfied.

Since it is unclear whether Benjamin has satisfied the requirements under VA law for home schooling, we recommend that further information be obtained to determine whether Benjamin is entitled to student benefits.

James A. Winn

Regional Chief Counsel

By: Brian C. O'D~

---------------------------

Assistant Regional Counsel

Virginia State law recognizes home schooling as a form of elementary or secondary education. A student may be exempted from Virginia's compulsory attendance law either by obtaining a religious exemption or by meeting other statutory requirements.

To obtain a religious exemption, the student's parents must notify the school board annually of the intention to home school their child because of their religious beliefs, and they must obtain an excuse from school attendance.

In order to home school a child without obtaining a religious exemption, the parent/teacher must provide evidence of the following:

• •

  The parent/teacher must hold a baccalaureate degree from an accredited institution of higher education; or he/she must have qualifications prescribed by the Board of Education; or he/she must have enrolled the student in a correspondence course approved by the Superintendent of Public Instruction; or he/she must provide both a course of study that satisfies Board of Education standards and also evidence that he/she has the ability to provide an adequate education for the child; and

• •

  The parent must notify the division superintendent annually in August of the intention to home school the child and must provide a description of the curriculum; and

• •

  The parent must provide the School Board with the results of achievement tests or provide an evaluation that indicates to the division superintendent that the child is achieving adequate educational progress; and

• •

  The parent must comply with immunization requirements (unless he/she objects to immunization on religious grounds) as if the child were enrolled in and attending public school.

The home school instructor should submit evidence that Virginia laws are being met. The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

QUESTIONS PRESENTED

This is in response to your February 12, 2003 request for an opinion as to whether Brandon, a home schooled student, is entitled to student benefits. The specific issues to be addressed are: (1) whether Brandon is in full-time attendance under federal law; (2) whether Virginia recognizes home schooling as a legitimate form of education; and (3) if so, whether Brandon's home schooling complies with Virginia law.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia and federal law regarding home schooling and full-time attendance. Based on our research, we have concluded that while Brandon satisfies federal standards for full-time attendance, his parents have not provided evidence that his home schooling satisfies Virginia law. Accordingly, he is not entitled to student benefits at this time.

BACKGROUND

The following is a summary of the relevant facts in this matter. Brandon was born on November 26, 1984 and is eighteen years old. He and his family currently reside in Pulaski County, Virginia. Before moving to Pulaski County, Brandon's family resided in Montgomery County, Virginia. In August 1991, Brandon's parents notified the Montgomery County School Board (MCSB) of their intent to home school their children under a religious exemption. In February 1992, the MCSB notified all parents home schooling their children that Virginia requires annual assessments of home-instructed students. Brandon's parents responded to the letter stating that because of their religious beliefs, they would not allow testing by the school district. In August 1992, Brandon's parents notified the MCSB that their children would be home schooled for the 1992-1993 school year.

In September 2002, Brandon's mother completed an SSA-1372, Student Statement Regarding School Attendance. In signing the form, Brandon's mother represented that Brandon receives twenty hours of instruction per week, fifty-two weeks per year, and is expected to graduate from high school in February 2004. On January 29, 2003, the Coordinator of Student Services for the Pulaski County School District (PCSD) wrote to the Agency stating that he could find no record of Brandon in either the home school files or the PCSD database. Additionally, he failed to locate any record of an application or notice requesting home school status. When contacted by the Agency on February 3, 2003, Brandon's mother stated that she had not informed the PCSB that she was home schooling her son. There is no indication that Brandon's parents notified either school district of their intent to home school Brandon for any year since the 1992-1993 school year.

DISCUSSION

You have asked for an opinion on whether Brandon's home schooling meets the requirements of Virginia law and therefore entitles him to student benefits. Under the Commissioner's regulations, an individual who has attained age eighteen may be eligible for child's benefits if he is a full-time student. 20 C.F.R. §§ 404.350, 404.367 (2002); Program Operations Manual System (POMS) RS 00205.001A. A home schooled student is accorded full-time student status where four specific criteria are met. Those criteria are that:

1. (a) 

   the student meets federal standards for full-time attendance;

2. (b) 

   the law of the state in which the home school is located recognizes home schooling as a legitimate educational institution;

3. (c) 

   the home school which the student attends meets the requirements of the law of the state in which the home school is located; and

4. (d) 

   the student meets all other requirements for benefits.

POMS RS 00205.275B. The student's home school instructor is responsible for submitting evidence that state requirements for home schooling are met. POMS RS 00205.275C.

In determining whether Brandon's home schooling entitles him to student benefits, the first inquiry is whether he meets federal standards for full-time attendance. To meet federal standards for full-time attendance, the student must be:

1. (a) 

   scheduled for secondary level school attendance at the rate of at least twenty hours per week;

2. (b) 

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

3. (c) 

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

POMS RS 00205.300C.

According to the SSA-1372 submitted by Brandon's mother, Brandon is scheduled for twenty hours of education per week, fifty-two weeks per year. In addition, Brandon is being home schooled and is not enrolled in a correspondence course. Accordingly, Brandon meets federal standards for full-time attendance.

The second inquiry is whether the law of the state in which the home school is located recognizes home schooling as a legitimate educational institution. Brandon and his family are domiciled in Virginia, which recognizes home schooling as a legitimate form of elementary or secondary education. See Va. Code Ann. § 22.1-254.1 (stating that “instruction of children by their parents is an acceptable alternative form of education under the policy of the Commonwealth of Virginia”). Accordingly, Brandon has met the second requirement for obtaining student benefits.

The third inquiry is whether the home school Brandon attends satisfies the requirements of Virginia law. Based on the information that you have provided to us, it does not. While home schooling is a permissible form of education in Virginia, any parent who elects to provide home instruction in lieu of school attendance must comply with certain requirements of the Virginia Code. Va. Code Ann. §§ 22.1-254, 22.1-254.1, 22.1-271.4.

There are two methods by which a student may obtain an exemption from Virginia's compulsory school attendance law, the first of which is by obtaining a religious exemption. When a student and his parents are conscientiously opposed to school attendance because of their religion, the school board must excuse the student from attendance at school. Va. Code Ann. § 22.1-254(D) (stating that “[n]othing in this section shall prohibit a pupil and his parents from obtaining an excuse from school attendance by reason of bona fide religious training or belief pursuant to § 22.1-254(B)(1)”). To receive a religious exemption, the parents must notify the school board of their intent to home school their child because of their religious beliefs and obtain an excuse from school attendance. See Va. Code Ann. § 22.1-254.1(D).

While Brandon's parents gave notice to the MCSB of their intent to home school their children for religious reasons, they have not done so since the 1992-1993 school year. Pursuant to Virginia law, any parent who elects home schooling for their child must notify the division superintendent annually. Va. Code Ann. § 22.1-254.1(B). Further, they have never requested home schooling status from the county in which they currently reside and teach their son. Indeed, the PCSB has no record of Brandon in either the home school files or in the PCSB database, nor could it locate any record of an application or notice requesting home school status. Because Brandon's parents have never notified the PCSB of their intent to home school Brandon for religious reasons, they have not obtained a religious exemption from Virginia's compulsory school attendance law.

Parents may home school their child without obtaining a religious exemption as long as certain other requirements are satisfied. First, the parent/teacher must provide evidence of one of the following: (i) that she holds a baccalaureate degree from an accredited higher education institution; (ii) that she has qualifications prescribed by the Board of Education; (iii) that she enrolled the student in a correspondence course approved by the Superintendent of Public Instruction; or (iv) that she provides a program of study or curriculum which satisfies Board of Education standards, and provides evidence that she is able to provide an adequate education for the child. Va. Code Ann. § 22.1-254.1(A). Second, the parents must annually notify the division superintendent in August of their intention to home school their child and provide a description of the curriculum to be followed. Va. Code Ann. § 22.1-254.1(B). Third, the parents must provide the school board with the results of achievement tests. Id. Alternatively, the parents may submit an evaluation or assessment which, in the division superintendent's judgment, indicates that the child is achieving an adequate level of educational growth and progress. Id. Finally, parents home schooling their child must comply with immunization requirements as if the child was enrolled in and attending school unless they object on the grounds that immunization conflicts with their religious beliefs. Va. Code Ann. §§ 22.1-271.4, 32.1-46(D)(1).

Based on the information you have provided to us, Brandon's parents have not complied with any of the above-mentioned requirements for home schooling. To start, Brandon's mother has not provided evidence of her teaching qualifications. In addition, as noted above, Brandon's parents have never notified the PCSB of their intent to home school Brandon, nor have they provided a description of the curriculum to be followed. They further failed to submit achievement test scores or an evaluation of Brandon's performance. Finally, there is no evidence that Brandon's parents have either complied with Virginia's immunization statute or objected to immunization on the basis of their religion.

Since Brandon's home schooling does not comply with Virginia law, he is not a full-time student for purposes of obtaining student benefits. 20 C.F.R. §§ 404.350, 404.367. Accordingly, until Brandon's parents submit the evidence required by Virginia law, we recommend that Brandon be denied student benefits. See POMS RS 00205.275(C).

James A. Winn

Regional Chief Counsel

By: Elizabeth A. C~

---------------------------

Assistant Regional Counsel