TN 6 (03-06)
PR 08005.004 Arizona
A. PR 06-083 Whether Claimant, Simone A. S~, Qualifies for Student Entitlement Based on Home Schooling in Arizona
DATE: February 28, 2006
Arizona recognizes home schooling under its compulsory education statute. A home school in Arizona is defined either as a school that is primarily conducted by the parent, guardian, or other person who has custody of the child or as instruction provided in the child's home. The child must be provided instruction in at least the subjects of reading, grammar, mathematics, social studies, and science.
The parent of a home-schooled child must file an affidavit of intent with the county school superintendent within thirty days of the time the child begins to attend the home school. The affidavit is not required to be filed again unless the home school instruction is terminated and then resumed. The affidavit of intent must state that the child is being provided with instruction in a home school, and the affidavit must include the child's name; the child's date of birth; the address of the child's school; and the names, telephone numbers, and addresses of the persons with current custody of the child.
The parent should submit evidence of compliance with Arizona law. The student must also meet Federal standards for full-time attendance and all other requirements for payment of benefits.
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The 1991 opinion is no longer valid due to changes in SSA regulations and policy and Arizona state law regarding home schooling.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 her daughter.
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 followed.
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 as an
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 per week.