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~.
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.
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.
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.
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).
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.