TN 4 (11-05)
PR 08005.009 Delaware
A. PR 06-007 Does Samantha R. S~'s Home Schooling Meet Requirements Under the Law of Delaware, SSN: ~ - ACTION
DATE: November 14, 2005
The State of Delaware recognizes home schools as non-public schools. The home school parent/teacher must submit to the Delaware Department of Education:
An annual statement of pupil enrollment, as of the last day of September, by October 31; and
An end-of-year attendance report by July 31.
The home school parent/teacher must submit evidence of compliance with Delaware law. The student must meet Federal standards for full-time attendance and all other requirements for the payment of benefits.
On October 13, 2005, you asked our advice as to whether the home-schooling of Samantha R. S~. (Claimant) meets the requirements for home-schooling under Federal standards and the law of Delaware, whether Claimant is in full-time attendance, and whether she is entitled to student benefits.
Having reviewed the relevant regulatory and legal authorities, we have concluded that Claimant does not meet the requirements for entitlement to student benefits. Claimant has failed to provide evidence of compliance with the requirements of Delaware law, and has failed to establish that she is a full-time student in a non-correspondence course.
The evidence provided indicates that Claimant was born on May 16, 1987. She reached her 18th birthday in May 2005. In March 2005, Claimant and her mother (the certifying official) completed a Student Statement Regarding School Attendance, Form SSA-1372. On that form, Claimant and her mother certified that Claimant was enrolled in home-school for 25 hours per week. They also reported that Claimant's school-year would extend from April 15, 2004 through September 14, 2005; that her previous school year had extended from January 3, 2003 through March 19, 2004; and that she was not expected to graduate until August 2006. Additionally, they provided documentation indicating that Claimant's studies involved course-work from Trent School, an internet-based, correspondence program.
As a non-disabled child over age 18, Claimant may continue to qualify for Child's Insurance Benefits only if she is a full-time student. 20 C.F.R. § 404.350(a)(5) (2005). 20 C.F.R. § 404.367 sets out the criteria under which a child may be eligible for benefits as a full-time student. The following provisions of 20 C.F.R. § 404.367 are particularly relevant to the analysis of this case:
A home-schooled student must be instructed in elementary or secondary education at home in accordance with the home-school law of a State or other jurisdiction in which she resides. 20 C.F.R. § 404.367(a)(1).
A student must be in full-time attendance of at least 20 hours per week (unless an exception applies), and, in the case of a home-schooled student, must carry a subject load which is considered to be full-time for day students under standards and practices set by the State or other jurisdiction in which she resides. 20 C.F.R. § 404.367(b),(c).
A student must attend a non-correspondence course of at least thirteen weeks duration. 20 C.F.R. § 404.367(b).
In this case, the first regulatory provision involves the application of Delaware law. The State of Delaware recognizes a "single-family homeschool," where one's own children are educated primarily by a parent or guardian in their own residence, as a valid form of non-public-schooling. 14 Del. C. § 2703A (2005). Non-public-schools operating in Delaware are required to submit an annual statement of pupil enrollment as of the last school-day in September, on or before October 31; and an end-of-year, attendance report, on or before July 31. 14 Del. C. § 2704. However, Delaware does not mandate compulsory school attendance after age 16. 14 Del. C. § 2702.
Although verifying that home-schools in Delaware do not need to register to educate students over age 16, our correspondence with the Delaware Department of Education also indicates that a home-school may register to educate children up to age 21. According to the Delaware Department of Education, if the home-school chooses to register, it must submit its attendance and enrollment reports. Otherwise, the Department of Education deems the home-school to be closed. Therefore, a home-school is considered to exist in Delaware only if it complies with the State's annual reporting requirements.
The age of compulsory education has always been considered relevant in determining student status, because POMS RS 00205.275C includes the following annotation "IMPORTANT: Some States only require parent reporting/monitoring until the student attains the State's compulsory education age which, in most cases, is age 16. In these cases, if the State recognizes home schooling as an EI [educational institution], and the home school parent/instructor certifies that the student is in FTA [full-time attendance], determine the child to be a student."
Although the above-cited annotation to POMS RS 00205.275C seems to suggest that Claimant should be determined to be a student, we have been advised that the Office of Program Law, Office of the General Counsel, has recently issued a legal opinion which concludes that this annotation to POMS is in conflict with the requirements of 20 C.F.R. § 404.367, because it ignores the requirement that the home-school must meet the law of the State in which it is located. Accordingly, the deletion of this annotation is now proposed as part of an Intercomponent Review Draft (IRD) of POMS RS 00205, currently being circulated for comment by the Office of Disability and Income Security Programs.
We believe that the guidance provided by the Office of Program Law is directly applicable to this case. Therefore, the facts of this case must be evaluated under the regulatory requirements of 20 C.F.R. § 404.367, without consideration of the conflicting POMS annotation, and Claimant must show that she is home-schooled in accordance with the law of Delaware regardless of whether or not she has passed the compulsory age of education. As Claimant has provided no evidence that her home-school has submitted the annual enrollment and attendance reports required by Delaware law, we do not believe that she is entitled to student benefits on the existing record.
The second relevant regulatory provision involves the issue of full-time attendance. To be deemed a full-time student, Claimant must show that she is scheduled to attend 20 hours of school per week, and is carrying "a subject load which is considered full-time for day students under standards and practices set by the State or other jurisdiction in which [she] reside[s]." 20 C.F.R. § 404.367(b),(c). Although Claimant has stated that she is scheduled to attend 25 hours of school per week, she has also indicated that her school-year will last for seventeen months. As Claimant is reported to be a straight-A student, and a normal school year lasts for less than ten months, we believe that the reported duration of Claimant's school year weighs against a finding that she is in full-time attendance with a full-time subject-load. Further, although Claimant states that her course materials are provided by Trent Schools, the record confirms only one tuition payment to Trent Schools. As that payment was made in April 2004, and amounted to less than a third of the annual tuition requirement, the payment record also weighs against a finding of continuing full-time attendance. We do not believe that Claimant can be found to be in full-time attendance unless these evidentiary inconsistencies are resolved.
The final relevant regulatory provision involves the requirement that Claimant be enrolled in a non-correspondence course. 20 C.F.R. § 404.367(b). The "NOTE" to POMS RS 00205.275C provides that "if a student's courses are from a correspondence school, the home school teacher must instruct the student using the course material." The Report of Contact in the case file indicates that Claimant's mother is her home-school instructor, and that the home-school uses an internet-based correspondence program. However, we find no statement in the record to confirm that Claimant's mother is actually providing Claimant's instruction. Further, the e-mail correspondence from Trent Schools indicates that Claimant submits her essays and tests directly to that institution for grading. Accordingly, we believe that further verification of Claimant's mother's role as the home-school instructor would be required before Claimant could be deemed to attend a non-correspondence course.
For the reasons set forth above, it is our opinion that Claimant does not meet the requirements for entitlement to student benefits. Claimant has failed to provide evidence of compliance with the requirements of Delaware law, and has failed to establish that she is a full-time student in a non-correspondence course.
Donna L. C~
Regional Chief Counsel, Region III
Teri C. S~-J~
Assistant Regional Counsel