You asked the following questions:
Whether a prior opinion issued on October 4, 1991, is still valid;
Whether the Claimant, Simone A. S. (hereinafter, "the Claimant"), qualifies for student
entitlement based on her home schooling in Arizona.
The 1991 opinion is no longer valid due to changes in SSA regulations and policy and
Arizona state law regarding home schooling. Applying the current law, the claimant
appears to satisfy all federal and state requirements to qualify as a full-time student
based on her home schooling.
SUMMARY OF EVIDENCE
An application for auxiliary child benefits was filed on the claimant's behalf on
August 15, 1989; she has been continuously entitled since November 1988 based on that
application, as a minor child. Born on October 12, 1987, the claimant was 17 years
of age on September 27, 2005, the date of her application seeking to continue her
entitlement beyond age 18 as a student child. The claimant's mother and guardian (and
home school teacher), Kathy K. D~, stated that the claimant's school year started
on August 25, 2005, and would end on August 25, 2006. Thus, the claimant would turn
18 years of age during her school year, with approximately 10 months remaining until
her 19th birthday at the projected end of her school year.
In support of the application for child's insurance benefits as a full-time student,
the claimant's mother provided a copy of a notarized document entitled "Affidavit
of Intent" addressed to the Cochise County School Superintendent, dated August 3,
2004 stating that the claimant was attending home school. The mother also wrote a
letter to SSA and attached a copy of her Bachelor of Arts degree from the University
of California, San Diego, as proof of her credentials to provide home schooling for
A. The 1991 Opinion
The October 1991 opinion indicated that home schooling in Arizona constituted one
of the grounds excusing attendance at an elementary or secondary school, leading to
the conclusion that a student "receiving home instruction in Arizona would not meet
the school attendance requirement of section 202(d)(7) of the [Social Security] Act."
The opinion also concluded that, even if home schooling was considered the equivalent
of education in an elementary or secondary school, home schooling in Arizona beyond
the age of sixteen would not be recognized for purposes of student's benefits because
Arizona's compulsory school attendance laws required attendance only through age sixteen.
Changes in the Social Security regulations and policy, as well as changes in state
law, since 1991 have effectively invalidated the October 1991 DHHS/OGC opinion in
all aspects. Accordingly, the October 4, 1991 DHHS/OGC opinion should no longer be
B. Social Security Program Requirements
In order to be eligible to receive Social Security child insurance benefits, an individual
who is 18 years of age but has not attained age 19 must be a "full-time elementary
or secondary school student." Section 202(d)(1)(B) of the Social Security Act. A "full-time
elementary or secondary school student" is defined as "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 prescribed by the
Commissioner) in light of the standards and practices of the schools involved. . .
." Section 202(d)(7)(A) of the Act. An "elementary or secondary school" is defined
as "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) of the Act.
In 1996, the Commissioner of Social Security revised the "rule on full-time elementary
or secondary school students to include students enrolled in home schooling … programs
authorized by State or local law." 61 Fed. Reg. 38361-01 (July 24, 1996). Specifically,
the regulation, 20 C.F.R. § 404.367, was amended to read:
You may be eligible for child's benefits if you are a full-time elementary or secondary
student. * * * (a) You attend a school which provides elementary or secondary education
as determined under the law of the State or other jurisdiction in which it is located.
Participation in the following programs also meets the requirements of this paragraph:
(1) You are instructed in elementary or secondary education at home in accordance
with a home school law of the State or other jurisdiction in which you reside; . .
61 Fed. Reg. at 38361 (codified at 20 C.F.R. § 404.367(a)(1)).
The Agency's Program Operations Manual System (POMS) was changed to address home schooling.
Specifically, student benefits are payable if the following criteria are met:
the student meets the federal standards for full-time attendance (FTA);
the law of the state in which the home school is located recognizes home schooling
educational institution (EI);
the home school the student attends meets the requirements of the state law in which
the home school is located; and
the student meets all the other requirements for benefits.
POMS RS 00205.275. Here, the claimant is home schooled in the State of Arizona.
C. Arizona Law
In 1995, Arizona law was specifically amended to include home schooling in its compulsory
education statute on equal footing with public, private, and charter schools. Law
1995, Ch. 268, § 44. Specifically, Arizona law states:
Every child between the ages of six and sixteen years shall attend a school and shall
be provided instruction in at least the subjects of reading, grammar, mathematics,
social studies and science. The person who has custody of the child shall choose a
public, private, charter or home school as defined in this section to provide instruction.
Ariz. Rev. Stat. Ann. § 15-802A (2005). A "home school" is defined as "a school conducted
primarily by the parent, guardian or other person who has custody of the child or
instruction provided in the child's home." Ariz. Rev. Stat. Ann. § 15-802F.
Arizona's home school law provides that the parent of a child who will be instructed
in a home school must file an affidavit of intent with the county school superintendent
stating that the child is being provided with instruction in a home school. Ariz.
Rev. Stat. Ann.
§ 15-802B(2). The affidavit of intent shall include:
(a) The child's name;
(b) The child's date of birth;
(c) The current address of the school the child is attending; and
(d) The names, telephone numbers and addresses of the persons who currently have custody
of the child.
Ariz. Rev. Stat. Ann. § 15-802B (a) - (d).
The affidavit of intent must be filed within thirty days of the time the child begins
to attend private or home school and is not required to be filed again thereafter
unless the private or home school instruction is terminated and then resumed. Ariz.
Rev. Stat. Ann. § 15-802C. Arizona law no longer requires testing of children who
are home-schooled. Ariz. Rev. Stat. Ann. § 15-745A.
Here, the claimant's mother submitted an Affidavit of Intent. There is no evidence
that this Affidavit has been rejected by the state. The Affidavit, together with SSA
Form 1372, Student's Statement Regarding School Attendance, indicate that the claimant
would be attending a home school that meets Arizona's requirements, at least 20 hours