The purpose of this memorandum is to respond to your request for our opinion regarding
whether a specific home school would qualify under section 202 (d)(7)(C)(i) of the
Social Security Act (the Act) as a school that provides elementary or secondary education
as determined under Arkansas law. See 42 U.S.C. § 402 (d)(7)(C)(i).
Specifically, you asked whether Erica L. O~, who is being home schooled by her mother,
qualifies as a full-time student of an elementary or secondary school and, therefore,
is entitled to receive benefits on the record of "E.M." O~. After reviewing the facts
and relevant law, we believe that Erica's home school qualifies as an educational
institution under State law and that she is entitled to continued benefits on Mr.
As we understand the facts, Erica was receiving benefits on Mr. O~'s record until
she attained age eighteen in March 2005, at which time her benefits were terminated.
Erica then submitted Form SSA-1372, Student's Statement Regarding School Attendance,
on which she stated that she has been home schooled since August 23, 2004. The SSA-1372
also indicates that Erica attends the home school full-time 35-40 hours per week,
but no expected graduation date was given on the form./ The form is signed by Erica
as well as Melton O~, the superintendent of the Osceola School District. Finally,
it is our understanding that Erica is being home schooled by her mother, Ms. Patricia
The materials you have submitted include a "Notice of Intent to Home School" form
signed by Ms. O~, on which she stated that Erica was to be home schooled at the twelfth
grade level for the 2004-05 school year. The proposed curriculum on the form included
English and grammar, world history, biology, base mathematics, algebra, business communications,
and bible study. The class schedule was based on 6 to 7 one-hour periods with an additional
hour devoted to either computer work or general educational development (GED) preparatory
testing. A "Fact Sheet On Home Schooling In Arkansas" was also submitted (attached).
The fact sheet is dated May 2004, and published by the Home School Office of the Arkansas
Department of Education.
Additional material submitted includes: (1) proposed amendments to the home schooling
statutes regarding testing and prohibition on public funding from the 2003 Arkansas
General Assembly, which were enacted into law, albeit in a slightly different form;
(2) various home schooling sections from the 1999 Arkansas Code that have since been
amended; and (3) rules and regulations from the Arkansas Department of Education regarding
home schooling, dated September 13, 1999.
As you know, the child of a wage earner may receive benefits after age eighteen if
she is a full-time elementary or secondary school student. 20 C.F.R. § 404.350(a)(5).
A student receiving home school instruction in accordance with the law of the state
in which she resides is considered a full-time elementary or secondary school student.
20 C.F.R. §§ 404.367(a)(1), (c). As Erica resides in Arkansas, Arkansas State law
Arkansas generally defines "public school" as a school created pursuant to title 6
of the State's education code and subject to the Arkansas Comprehensive Testing, Assessment,
and Accountability Program; except, specifically excluding those schools or educational
programs created or receiving authority to exist pursuant to other provisions of the
law such as youth services centers, correctional schools, and home schools. See Ark. Code Ann. § 6-15-419(24) (1987, current through 2004). Arkansas specifically
defines a home school as, ". . . a school primarily conducted by parents or legal
guardians for their own children." See Ark. Code Ann. § 6-15-501 (1987, current through 2004).
According to Arkansas law, parents or guardians desiring to provide a home school
for their children must give written notice to the superintendent of their local school
district and sign a waiver acknowledging that the State of Arkansas is not liable
for the education of their children during the time that the parents choose to home
school. See Ark. Code Ann. § 6-15-503(a)(1). The notice must include: (1) the student's name,
date of birth, grade level, and the name and address of the school last attended (if
any); (2) the location of the home school; (3) basic core curriculum to be offered;
(4) proposed schedule of instruction; and (5) the qualifications of the parent-teacher.
See Ark. Code Ann. § 6-15-503(a)(3) (A)-(E). The notice must be delivered in person by
the parent or guardian the first time it is given to the school superintendent. See Ark. Code Ann. § 6-15-503(a)(4).
Additionally, no public school student is eligible for enrollment in a home school
if the student is currently under disciplinary action for violating any written school
policy, including, but not limited to, excessive unexcused absences. See Ark. Code Ann. § 6-15-503(d)(1). However, the public school student who is under
disciplinary action may still be eligible for enrollment in a home school if: (1)
the superintendent or local school board chooses to allow the child to enroll, (2)
the disciplinary action has been completed or the school year has ended, whichever
occurs first, or (3) the student has been expelled. See Ark. Code Ann. § 6-15-503(d)(2) (A)-(C). No student may be home schooled if there
is any person residing in the home who is registered under the State's Sex and Child
Offender Registration Act of 1997, unless the sentencing court waives the prohibition
by written order or the student is the registered offender. See Ark. Code Ann. §§ 6-15-508 (a)-(c) (1987, current through 2004).
Finally, Arkansas requires students enrolled in a home school program to take a nationally
recognized standard achievement test selected by the State Board of Education, or
an approved alternate testing procedure at the parent's expense. See Ark. Code Ann. § 6-15-504(a) (1987, current through 2004); see
also Notice of Intent to Home School at "Part A" (attached). Generally, the achievement
tests are administered to students in grades 5, 7, and 10. Id.
Based upon the information you have submitted, it is our opinion that Erica has been
attending a home school in accordance with Arkansas law since August 23, 2004. Ms.
O~ timely submitted the Notice of Intent to Home School Erica during the 2004-05 school
term on a form in compliance with State law. See Ark. Code Ann. § 6-15-503(a)(1). The form complied with State law requirements in
that it contained: (1) the name, date of birth, grade level, and the name and address
of the school last attended by Erica; (2) the location of the home school; (3) basic
core curriculum to be offered; (4) proposed schedule of instruction; and (5) the qualifications
of the parent-teacher. See Ark. Code Ann. § 6-15-503(a)(3) (A)-(E). Additionally, there is no issue with regard
to qualifications of the home school instructor, Ms. O~, since Arkansas does not actually
require any special educational or certification requirements for home school instructors.
See Fact Sheet on Home Schooling In Arkansas at note 5.
It appears that Erica was not under any disciplinary action that would have precluded
her from being home schooled given that Milton O~, the local Osceola school superintendent,
acknowledged on the SSA-1372 that Erica was being home schooled during the 2004-05
school year. See Ark. Code Ann. § 6-15-503(d)(2)(A) (public school students who are under disciplinary
action by the local school district "shall be eligible" for home schooling if the
school superintendent of the local school district chooses to allow the child to enroll
in a home school).
We assume that you are satisfied that Mr. W~ is in fact an official in his stated
While no waiver exempting the State from liability was provided with your request
for a legal opinion, we can presume that one was prepared, given that Erica has been
allowed by the State to be home schooled. See Ark. Code Ann. § 6-15-503(a)(1) (parents desiring to home school their children must
give written notice to the superintendent of their local school district and sign
a waiver acknowledging that the State is not liable for the education of their children).
According to the documentation submitted with your request for a legal opinion, standardized
testing is not an issue given that it would have been performed prior to the 2004-05
school term, when Erica was still attending high school in the Osceola public school
system at the 11th grade level. See Notice of Intent to Home School at Part A (standardized testing occurs in grades
5, 7, and 10; here, claimant had completed the 11th grade); see also Form SSA-1372, Student's Statement Regarding School Attendance (claimant was
attending high school in the Osceola School District during 2003-04 school term, and
has been home Schooled since August 23, 2004).
Finally, the fact that Erica did not list an expected graduation date on SSA-1372
is not fatal to her application for continued benefits given that Arkansas does not
award high school diplomas for home schooled students, unless they re-enroll in a
local school district and attend classes at least nine months immediately prior to
graduation. See Ark. Code Ann. § 6-15-504(g). Rather, the home schooled student can take the GED examination.
See Ark. Code Ann. § 6-18-201(d) (1987, current through 2004) (home school students are
not required to obtain permission or approval from any public school official prior
to taking the GED; rather, they must submit a notarized copy of the notice of intent
to home school as required under Ark. Code. Ann § 6-15-503 prior to taking the examination).
The information you have provided establishes that, since August 23, 2004, Erica has
been home schooled in accordance with State law and procedures. We have no reason
to question the accuracy of the documentation and representations made. Accordingly,
we believe that Erica still qualifies as a full-time student according to Arkansas
Tina M. W~
Regional Chief Counsel
Thomas C. S~
Assistant Regional Counsel