You asked whether the claimant qualifies for student entitlement based on his attendance
in a private school setting in his home in California.
SUMMARY OF EVIDENCE
The claimant, David W. L~, was born on January 21, 1989. His father, William R. L~
(the wage earner), died on December 16, 2000.
On August 16, 2006, the claimant's mother, C. L. L~, filed an application for child's
insurance benefits on behalf of her son. According to the Student's Statement Regarding
School Attendance (SSA-1372 BK), which is signed by the claimant and his mother, shows
that the claimant is in full-time attendance at a private school setting called L~
Christian Academy in Riverside, California. The current school year runs from October
1, 2005, through September 30, 2006; the upcoming school year will run from October
1, 2006, through September 30, 2007.
The claimant expects to graduate from secondary or high school in September 2008.
Id. School is in session 35 hours a week year-round, with no breaks. During the upcoming
2006-2007 school year, the claimant will turn eighteen on his next birthday on January
21, 2007. He will turn nineteen years old before his expected date of graduation in
The claimant's mother also submitted the Private School Affidavit she filed for the
2005-06 School Year. In that Affidavit, she declared under penalty of perjury and
the law of the State of California that she is the Principal/Teacher of the L~ Christian
Academy, a private school; that two children are enrolled in elementary education
and two in secondary education (the claimant is one of the students enrolled in secondary
education); and that she maintains attendance records for each student and records
of the courses of study, as required by California law. The 2006-07 Private School
Affidavit must be submitted between October 1 and 15, 2006.
A. Social Security Program Requirements
In order to be eligible to receive child's 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" at an educational institution. Social Security Act § 202(d)(1)(B),
42 U.S.C. § 402(d)(1)(B). A full-time elementary or secondary school student is "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. . . ." Social Security Act § 202(d)(7)(A).
An educational institution is an elementary or secondary school "which provides elementary
or secondary education, respectively, as determined under the law of the State or
other jurisdiction in which it is located." Social Security Act § 202(d)(7)(C)(i).
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. 38,361-01 (July 24, 1996) (to be codified
at 20 C.F.R. 404.367(a)(1)). The regulation reads:
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; . .
20 C.F.R. § 404.367(a)(1).
The Program Operations Manual System (POMS) was changed to address home schooling.
Specifically, student benefits are payable if the following criteria are met:
(1) the student meets the federal standards for full-time attendance (FTA);
(2) the law of the state in which the home school is located recognizes home schooling
as an educational institution;
(3) the home school the student attends meets the requirements of the state law in
which the home school is located; and
(4) the student meets all the other requirements for benefits.
POMS RS 00205.275.
B. California Requirements
California law states:
Each person between the ages of 6 and 18 years not exempted under the provisions of
this chapter or Chapter 3 (commencing with Section 48400) is subject to compulsory
Cal Educ. Code § 48200 (West 2006). A child may be exempt from compulsory public school
attendance if he or she is taught by a person or persons "capable of teaching" and
such instruction is provided in a private full-time day school. Cal. Educ. Code §
48222. A state teaching credential is not required. The private school must maintain
an attendance register for each child, provide instruction in the English language
and in all the branches of study required by California public schools, and annually
file a Private School Affidavit (or other document that provides the required information)
with the California Department of Education. Cal. Educ. Code §§ 33190, 48222. A determination
of whether a home schooled child is attending a private full-time day school, and
therefore exempt from public school attendance, is made by the local school district.
Cal. Educ. Code § 48415; see
also California Department of Education's website at www.cde.ca.gov (Private Schools Frequently
Here, the claimant's mother established a home-based private school called the L~
Christian Academy. She filed the required Private School Affidavit for the current
school year, which ends on September 30, 2006; her Affidavit for the upcoming 2006-07school
year is not yet due. She is the claimant's teacher and has declared under penalty
of perjury that she provides the requisite instruction required by California public
schools. The private school that the claimant attends provides secondary education
as determined by California law.
Accordingly, the private school should be recognized as an educational institution
for purposes of determining the claimant's eligibility for child's insurance benefits.