You asked for an updated opinion on home schooling under the laws of the State of
Michigan, with regard to child’s insurance benefits for students age eighteen or older.
In order to answer this question, we first considered whether home schooling is an
educational institution under Michigan law.
For the reasons discussed below, we conclude that home schooling in Michigan is not
an educational institution for students age eighteen or older, because home schools
are not recognized as a school as to this age group and there are no home schooling
requirements or regulations in state law as to this age group.
The POMS section for home schooling in Michigan was last updated on January 31, 2001.
E.g., POMS PR 08005.025. Given concerns about statutory changes to home schooling in Michigan, we were asked
to provide an updated legal opinion.
To qualify for student benefits, a claimant must be at least 18 years old, but under
age 19, unmarried, and a full-time elementary or secondary school student at a qualifying
educational institution. See 42 U.S.C. § 402(d); 20 C.F.R. §§ 404.350(a)(5), 404.367. SSA may deem a student not
to have attained age 19 under certain conditions, even though they have actually attained
age 19. POMS RS 00205.325(B), (C).
In order to qualify as an educational institution for the purposes of awarding student
benefits, a school must provide an “elementary or secondary education . . . as determined
under the law of the State or other jurisdiction in which it is located.” 42 U.S.C.
§ 402(d)(7)(C)(i); see also POMS RS 00205.200(A)(defining elementary or secondary education as grade 12 or below). Public schools
in the United States are assumed to be educational institutions, absent evidence to
the contrary, while non-public schools are not assumed to be educational institutions.
POMS RS 00205.250(B). In order to be eligible for student benefits as a home school student, an individual
must be “instructed in elementary or secondary education at home in accordance with
a home school law of the State” in which the individual resides. 20 C.F.R. § 404.367.
POMS specifies that a home school student can receive benefits if “the law of the
State in which the home school is located recognizes home school as an educational
institution” and “[t]he home school the student attends meets the requirements of
the State law where he or she resides.” POMS RS 00205.275(B).
A claimant must also be a full-time elementary or secondary school student in order
to qualify for student benefits. The Act defines “full-time elementary or secondary
school student” as an individual who is in full-time attendance at an elementary or
secondary school. Section 202(d)(7)(a) of the Act; see
also 20 C.F.R. § 404.367. To satisfy the “full-time attendance” requirement, a home school
student must meet federal standards. POMS RS 00205.275(B). To meet the federal standards, the claimant must be enrolled in a non-correspondence
course of at least 13 weeks’ duration and be scheduled for attendance at the rate
of at least 20 hours per week (with certain exceptions). 20 C.F.R. § 404.367(b), (c);
POMS RS 00205.300(C).
Turning to Michigan law regarding home schools, Michigan requires compulsory public
school attendance of all children from the age of 6 to the child’s eighteenth birthday,
provided that the child turned age 11 on or after December 1, 2009, or was age 11
before that date and entered grade 6 in 2009 or later. Mich. Comp. Laws § 380.1561(1).
For a child who turned age 11 before December 1, 2009 or who entered grade 6 before
2009, the child must be sent to school from the age of 6 until the child’s sixteenth
birthday. Id. All prospective claimants for child’s insurance benefits as students are at least
age eighteen, and thus are not subject to Michigan’s compulsory attendance law.
Michigan recognizes home schools, but only within the context of compulsory attendance.
Home schools are an exception to compulsory public school attendance. A homeschooled
child is exempt from compulsory attendance in two circumstances. Mich. Comp. Laws
§ 380.1561(3), (4). First, if “[t]he child is being educated at the child’s home by
his or her parent or legal guardian in an organized educational program in the subject
areas of reading, spelling, mathematics, science, history, civics, literature, writing,
and English grammar.” Mich. Comp. Laws § 380.1561(3)(f). Second, “if the child is
attending regularly and is being taught in a state approved nonpublic school, which
teaches subjects comparable to those taught in the public schools to children of corresponding
age and grade, as determined by the course of study for the public schools of the
district within which the nonpublic school is located.” Mich. Comp. Laws § 380.1561(3)(a).
This statute uses the words “child” and “children,” which further demonstrates its
application solely to those who have not yet reached age eighteen.
Michigan statutes do not state that home schools exist following a child’s eighteenth
birthday and do not discuss home schools in a way that suggest they are recognized
and regulated after a child’s eighteenth birthday. Michigan statutes do not mention
any legal requirements or standards for home schools in any context other than in
the compulsory attendance statute. Mich. Comp. Laws § 380.1561. To the extent home
schools are mentioned elsewhere in Michigan statutes, it is to grant home school children
access to services available to public school students. For example, home school children,
including those at nonpublic schools, may participate in merit examination testing
or in course offerings of the Michigan virtual high school. Mich. Comp. Laws §§ 380.1279g(11),
380.1481(5) (emphasis added); Mich. Atty Gen. Op. 7107 (2002). When the statutes refer
to students who are age eighteen or older, they do so in reference to public schools
or school districts, or in reference to providing a postsecondary education. E.g., Mich. Comp. Laws §§ 380.552(21) ; 380.1136; 380.1139(6); 380.1278b(5), (9); 380.1311(5),
(6); 388.1606(4), (4)(l); 388.1621f(1), (8); 388.1707 . Michigan does not recognize
or regulate home schools with students who are age eighteen or older.
Because home schools also may qualify as “nonpublic schools,” the regulatory requirements
and definition of “nonpublic schools” are also relevant to assessing the status of
home schools under Michigan law. Notably, “nonpublic schools” are mentioned in reference
to the compulsory attendance law and several definitions of nonpublic schools explicitly
link the term to the compulsory attendance law. Mich. Comp. Laws § 380.1561(3)(a).
In the Michigan Administrative Code, Rule 340.291 defines a “nonpublic school” as
“a school not operated by the public school district which . . . is providing instruction
in the elementary or secondary grades, or both, to pupils regularly enrolled in compliance
with compulsory education laws in this state.” Accessed at http://dmbinternet.state.mi.us/DMB/ORRDocs/AdminCode/557_10529_AdminCode.pdf (last visited Nov. 16, 2017) (this rule pertains to providing auxiliary services,
with emphasis added). In the Revised School Code, nonpublic schools are defined more
generally as a “private, denominational, or parochial school.” Mich. Comp. Laws §
380.5(4). This section of the statute does not define “private, denominational, or
parochial school.” However, the statute supervising private, denominational and parochial
schools (Act 302 of 1921) defines “private, denominational or parochial schools” as
“any school other than a public school giving instruction to children below the age
of 16 years, in the first 8 grades as provided for the public schools of the state.”
Mich. Comp. Laws § 388.552 (emphasis added). Thus, when Michigan requires private,
denominational, and parochial schools to satisfy the same sanitary conditions, courses
of study and teacher qualifications as public schools, by definition, private, denominational
and parochial schools are only regulated where they give instruction up to age 16.
Mich. Comp. Laws §§ 388.551(1), 388.552; Clonlara, Inc. v. State Bd. of Educ., 442 Mich. 230, 249-50 (1993). Thus, whether home schools are mentioned separately,
or are considered under the umbrella of “nonpublic” or “private, denominational or
parochial” schools, Michigan recognizes home schools only within the context of compulsory
attendance, which applies only to children below the age of eighteen.
We are also persuaded by the regulatory history of 20 C.F.R. § 404.367. In 1996, the
Agency expanded student benefits to children enrolled in home schooling or independent
study programs authorized by State (or other jurisdiction) laws. 61 Fed. Reg. 38361-01,
38362, 1996 WL 409869 (July 24, 1996). “Many States or other jurisdictions have laws
recognizing home schooling. Home schooling is an educational program in which the
student is generally taught within the home by a parent/teacher.” 61 Fed. Reg. 38361.
The regulation assumes that “The state or other jurisdiction specifies the requirements
that must be met and the procedures that must be followed in these situations.” 61
Fed. Reg. 38361, 38362. Further, “[t]he child’s home schooling teacher must submit
evidence that legal requirements for home schooling are met.” Id. Such requirements can include a certificate of intent, documentation of state-mandated
tests, a list of courses being taught, and a copy of the attendance log or chart.
Id. In Michigan, home schools do not have any requirements that must be met after age
eighteen, including those mentioned in the Federal Register. Accordingly, Michigan
does not recognize home schooling after age eighteen as providing an elementary or
secondary education at home in accordance with a home school law of the State.” See 20 C.F.R. § 404.367.
Thus, we conclude that Michigan law does not recognize home schools apart from the
compulsory attendance context. As a result, Michigan law does not recognize home schools
as an educational institution providing elementary or secondary education after age
18. See POMS RS 00205.200. Home schools do not provide an education “as determined under the law of the State
or other jurisdiction in which it is located” with respect to children who are 18
years old or older. 42 U.S.C. § 402(d)(7)(C)(i).
We note that this opinion conflicts with previous Legal Precedential Opinions at POMS
PR 08005.025 and PS 08005.025. These older Legal Precedential Opinions regarding home schooling in Michigan were
issued under now-obsolete statutes. For example, Michigan changed the compulsory attendance
age, effective in 2010. Am. 2009, Act 204. Thus, we believe that POMS PR 08005.026 and PS 08005.026 should no longer be followed and should be removed from the precedential file.
Based on the foregoing, for students older than age eighteen, we conclude that home
schools in Michigan are not educational institutions, because they are not recognized
as schools apart from the compulsory attendance ages and because there are no regulatory
requirements that apply to them after age eighteen.
Regional Chief Counsel
Region V, Chicago
By: Ryan Shafer
Assistant Regional Counsel