TN 21 (06-14)
PR 08005.007 Colorado
A. PR 14-104 Legal Opinion – Required Documentation for Home Schooling Under Colorado Law
DATE: May 23, 2014
A parent establishing a home schooling program must provide notice of establishment of the program, as well as maintain attendance data, test and evaluation results and immunization records. The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.
What notice and documentation is required under Colorado law for verification of a home schooling program?
A parent establishing a home schooling program must provide notice of establishment of the program and each year thereafter if the program is maintained to a school district in the State of Colorado (See: §22-33-104.5 (3)(e)). Parents in charge of such a program must, on a permanent basis, maintain records of attendance data, test and evaluation results and immunization records (See: §22-33-104.5 (3)(g)).
The question arose over a situation concerning what information SSA can require from a parent in order to evaluate the status of home schooling to determine if it meets the definition of an Eductional Institution (IE) for the payment of student benefits (RS DEN00205.275 A). SSA is required to look to Colorado law for such an evaluation.
In this case, the mother of an 18 year old in nonpay status for C1 benefits has submitted a letter of intent form to the SSA field office in Colorado Springs. The FO’s understanding is that the letter of intent alone is insufficient under the SSA rules and regulations. The FO is seeking guidance on what information SSA can require, given Colorado law, to make a determination.
According to SSA policy, evaluation for payment of benefits requires that the child’s home school instructor “submit evidence that State requirements for home schooling are met” (RS 00205.275 C.) While Colorado’s home-based educational program policy applies only “minimum state controls” to such programs, there are still a number of basic requirements that must be met. These requirements, in the context of what is needed by SSA to determine whether a home schooling program meets the definition of an IE, depends on the circumstances.
For example, where a child participating in home-schooling program was previously enrolled in public school and was habitually truant during the last six months that the child attended school, the parents are required to submit to the school district a written description of the curricula to be used in the program and written notification of establishment of the program. (See: §22-33-104.5 (3)(b)). In cases where prior attendance in public school and habitual truancy is not involved, there is only a notification of establishment of the program and a record keeping requirement. The notification requirement is only required until the child is sixteen years of age. (See: §22-33-104.5 (3)(e)(III)).
However, for as long as a home-schooling program is in place, the record keeping is required. As stated above, Colorado law requires the parent in charge to maintain records of attendance, test and evaluation results and immunization records on a permanent basis. Under Colorado law, children in home schooling programs are required to attend four instructional contact hours per day for at least one hundred and seventy-two days of instruction per year. (See: §22-33-104.5 (3)(c)). The program must include instruction in reading, writing, mathematics, history, civics, literature, science and regular course in the constitution of the United States. (See: §22-33-104.5 (3)(d)). Evaluation by national standardized achievement tests is required at grades three, five, seven, nine and eleven. (See: §22-33-104.5 (3)(f)). Complaince with the record keeping requirements encompass the hours per day of instuction, days per year of instuction, the subjects taught in those four hours a day and any evaluative test results.
Colorado law requires that certain records be maintained by the parent in charge of the home schooling program so that the legitimacy of the program can be verified. SSA, per regulation, can ask for the same documentation that Colorado law requires be maintained. In this case and in compliance with Colorado law, SSA can require documentation of the hours per day of instuction, days per year of instuction, the subjects taught in those four hours a day and any evaluative test results. Such documentation should have been maintained by the parent in charge and should be available upon request to verify the status of home schooling.
John J. Lee
Regional Chief Counsel, Region VIII
Assistant Regional Counsel
B. PR 00-083 Status of Child As Full-Time Secondary School Student - Home Schooling - Colorado
DATE: January 21, 1999
The State of Colorado recognizes home schooling and refers to it as "a non-public home-based educational program ." The instructor does not need to be a certified teacher.
State law specifies that a child who was habitually truant at any time during the last six months that he/she attended school prior to enrollment in a home school may not be home schooled unless the parents submit:
State law requires a minimum of 172 days of instruction, with an average of 4 hours of instruction per day.
Home school instruction must include communication skills of reading, writing and speaking; mathematics; history; civics; literature; science; and the Constitution of the United States.
The parent must provide the local school district with a written notice 14 days before beginning a home school; and the parent must provide this notice each year if the home school continues. The parent must certify in writing the name, age, address and number of hours of attendance for each child.
The child's educational progress must be evaluated in grades 3, 5, 7, 9 and 11 by a nationally standardized test or by a qualified person. The evaluation results must be submitted to the local school district or to an independent or parochial school in Colorado. If the results are submitted to an independent or parochial school, the school's name must be provided to the local school district.
The parent must maintain attendance and immunization records and test and evaluation results; and the parents must furnish these records and results to the local school district within 14 days if requested to do so.
The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.
You have requested our opinion whether the home schooling of Joy, SSN ~, qualifies her to receive student benefits on the record of Donald, SSN ~. As discussed below, the State of Colorado recognizes a home school as an educational institution (EI). In addition, we believe Joy's specific home schooling situation meets both State and Federal requirements.
Based on your documentation, the facts of this situation appear to be as follows. Joy, who becomes 18 years old in January 1999, is being taught at home by her mother, Gretchen. Joy stated she is "scheduled to attend" school 20+ hours per week. Joy's mother stated she kept attendance records and that Joy's school program includes no less than 172 days of instruction, averaging four instructional contract hours per day. Courses being taught include English, German IV, Geometry, World History, Art History, Bible, Physical Education, Chemistry, and Music. All courses are taught by Joy's mother, except German IV is taken at a public high school, piano is taught by a private tutor, and Geometry is taught by Joy's father. Joy is tested daily by her mother. She is scheduled to graduate in July 1999. Joy's home schooling was verified in a September 1998 letter from Sandra ., coordinator of Home Based Education for Jefferson County Public Schools. Sandra. stated no further verification was required from her office regarding Joy's upcoming graduation.
Under section 202(d) of the Social Security Act, 42 U.S.C. § 402(d), the child of a retired, disabled, or deceased wage earner (WE) is eligible to receive benefits on the WE's account if, as pertinent here, at the time of application she "either had not attained the age of 18 or was a full-time . . . secondary school student and had not attained the age of 19 . . . ." 42 U.S.C. § 202(d)(1)(B). A "full-time" secondary student is one "who is in full-time attendance as a student at . . . [a] secondary school, as determined by the Commissioner of Social security (in accordance with regulations prescribed by the Commissioner) in the light of the standards and practices of the school involved . . . ." 42 U.S.C. § 402(d)(7)(A). A secondary school is a school that provides secondary education "as determined under the law of the State or other jurisdiction in which it is located." Id. § 402(d)(7)(C). Under the regulations, home schooling is an appropriate type of secondary education if it complies with the law of the State or other jurisdiction in which the student resides. 20 C.F.R. § 404.367(a)(1) (1998). See POMS 00205.275.
Colorado law requires children to attend public schools until they reach age 16. Colo. Rev. Stat. (C.R.S.) § 22-33-104(1) (copy attached). However, an exception to this law applies where the child "is being instructed at home . . . [u]nder a non-public home-based educational program pursuant to section 22-33-104.5 . . . ." C.R.S. § 22-33-104(2)(i)(II).
Colorado law further provides:
The following guidelines shall apply to a non-public home-based educational program:
(a) A parent or an adult relative designated by a parent to provide instruction in a non-public home-based educational program shall not be subject to the requirements of the "Teacher Certification Act of 1975", article 60 of this title, nor to the provisions of article 61 of this title relating to teacher employment.
(b) A child who is participating in a non-public home-based educational program shall not be subject to compulsory school attendance as provided in this article; except that any child who is habitually truant, as defined in section 22-33-107(3), at any time during the last six months that the child attended school before proposed enrollment in a non-public home-based educational program may not be enrolled in the program unless the child's parents first submit a written description of the curricula to be used in the program along with the written notification of establishment of the program required in paragraph (e) of subsection  of this section to the superintendent of the child's school district of residence.
(c) A non-public home-based educational program shall include no less than one hundred seventy-two days of instruction, averaging four instructional contact hours per day.
(d) A non-public home-based educational program shall include, but need not be limited to, communication skills of reading, writing, and speaking, mathematics, history, civics, literature, science, and regular courses of instruction in the constitution of the United States as provided in section 22-1-108.
(e) Any parent establishing a non-public home-based educational program shall provide written notification of the establishment of said program to the local school district of residence fourteen days prior to the establishment of said program and each year thereafter if the program is maintained. The parent in charge and in control of a non-public home-based educational program shall certify, in writing, only a statement containing the name, age, place of residence, and number of hours of attendance of each child enrolled in said program.
(f) Each child participating in a non-public home-based educational program shall be evaluated when such child reaches grades three, five, seven, nine, and eleven. Each child shall be given a nationally standardized achievement test to evaluate the child's academic progress, or a qualified person shall evaluate the child's academic progress. The test or evaluation results, whichever is appropriate, shall be submitted to the local school district of residence or an independent or parochial school within the state of Colorado. If the test or evaluation results are submitted to an independent or parochial school, the name of such school shall be provided to the local school district of residence. The purpose of such tests or evaluations shall be to evaluate the educational progress of each child.
(g) The records of each child participating in a non-public home-based educational program shall be maintained on a permanent basis by the parent in charge and in control of said program. The records shall include, but need not be limited to, attendance data, test and evaluation results, and immunization records, as required by sections 25-4-901, 25-4-902, and 25-4-903, C.R.S. Such records shall be produced to the local school district of residence upon fourteen days' written notice if the superintendent of said school district has probable cause to believe that said program is not in compliance with the guidelines established in this subsection (3).
C.R.S. § 22-33-104.5(3) (copy attached).
The first question to be resolved, therefore, is whether Joy's home schooling meets these State requirements. To this end, POMS RS 00205.275 mandates full development and documentation of the home schooling issue, particularly regarding the student's attendance rate and the courses taken.
As noted above, Sandra. verified Joy's home schooling includes no less than 172 days of instruction, averaging four instructional contract hours per day. Sandra. also stated Joy would not need further verification in order to graduate. Sandra. 's statements indicate Joy is meeting all of the requirements of C.R.S. § 22-33-104.5.
The second question is whether Joy meets Federal requirements for full-time attendance (FTA). Under the regulations, a student's "scheduled attendance must be at the rate of at least 20 hours per week" (unless certain exceptions apply). 20 C.F.R. § 404.367(c). See also POMS RS 00205.300A.2. Although Joy stated she was "scheduled to attend" school 20+ hours weekly, the record does not include attendance records showing compliance with this requirement. However, as noted above, Sandra. verified Joy attends school four hours per day, which, based on a five-day week, would average 20 hours per week. Further verification of Joy's FTA is not required. See POMS RS 00205.350A.1.a. (attendance verification not required where there is no reason to doubt the student's allegation). Thus, Joy's home schooling meets the requirements of both State and Federal law.
You also have requested our opinion on Social Security student benefit requirements for nonaccredited schools in Colorado. The general issue of nonaccredited schools has been considered in prior opinions by SSA/OGC. These opinions found it was "legally supportable" to conclude that an EI need not be affirmatively accredited or approved by the state, and that if the nonpublic school met the state's compulsory education law, the school could be recognized as an approved school for purposes of the Social Security student benefit provision. See, e.g., Memorandum, Does Outreach Christian Education Qualify an Educational Institution?, CC VII (Fry) to ARC, SSA, January 22, 1991; Memorandum, Status of the Northwest Indian Bible School as an Educational Institution, CC VIII (Blair) to RC, SSA, January 26, 1990 (copies attached).
As relevant here, Colorado's compulsory school attendance law exempts a child:
[w]ho is enrolled for a minimum of one hundred seventy-two days in an independent or parochial school which provides a basic academic education. "Basic academic education" for the purpose of this article means the sequential program of instruction provided by an independent or parochial school. Such program shall include, but not be limited to, communication skills of reading, writing, and speaking, mathematics, history, civics, literature, and science.
C.R.S. § 22-33-104(b). If a school is found to meet all of these requirements for an exemption from Colorado's compulsory attendance law, SSA would be justified in determining that the school is an approved EI. If questions arise regarding specific EI's, we would be happy to render an opinion regarding the questioned EI.