Under Minnesota law, the Social Security Administration may consider a home schooled child age 17 and older to be a student for purposes of determining entitlement to student benefits if the home school he or she attends meets the requirements for home schools under Minnesota law.

PR 17-061 no longer applies and should not be followed.

You asked us to consider whether Minnesota State law considers a home schooled child age 17 or older as a “student” for purposes of determining entitlement to student benefits under title II of the Social Security Act (Act). We believe that under Minnesota law, the Social Security Administration (SSA) may consider a home schooled child age 17 and older to be a student for purposes of determining entitlement to student benefits if the home school he or she attends meets the requirements for home schools under Minnesota law. The Act provides that student benefits are only available until a student attains the age of 19. This opinion supersedes POMS PR 08005.026 (PR 17-061).

SSA last updated the POMS section containing precedents for home schooling in Minnesota on March 14, 2017. See POMS PR 08005.026. However, you have asked us to review Minnesota law with respect to home schooled students age 17 and older, and consider whether such children may be entitled to student benefits.

I. Federal Law and Policy

The Act provides for the payment of child’s insurance benefits to certain children of individuals who are entitled to old-age or disability benefits. See 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. As relevant here, a child can obtain student benefits if he or she is at least 18 years old but under age 19 and a full-time elementary or secondary school student. See 42 U.S.C. § 402(d)(1)(B); see also 20 C.F.R. §§ 404.350(a)(5), 404.367; POMS RS 00205.001.

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. See 42 U.S.C. § 402(d)(7); see also 20 C.F.R. § 404.367. This definition can be broken down into two elements—“elementary or secondary school” and “full-time attendance.”

First, the individual must attend a school that provides 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 20 C.F.R. § 404.367(a). The POMS refers to such a school as an “educational institution.” See POMS RS 00205.200A. Specifically with respect to home schools, the individual must be “instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction” in which he or she resides. 20 C.F.R. § 404.367(a)(1). The POMS explains this to mean that:

• •

  The law of the State in which the home school is located recognizes a home school as an educational institution; and

• •

  The home school the student attends meets the requirements of the State law where he or she resides.

POMS RS 00205.275B.

Second, the home schooled student must satisfy the Federal standards for “full-time attendance.” See POMS RS 00205.275B. To meet the Federal standards, the individual must be enrolled in a noncorrespondence 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). See 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300C.^[1]

II. Minnesota Law

A. Minnesota recognizes home school as an educational institution.

It is first necessary to examine whether Minnesota law recognizes a home school as an educational institution. POMS RS 00205.275B. We believe that it does. In Minnesota, “[e]very child between seven and 17 years of age must receive instruction unless the child has graduated.” Minn. Stat. § 120A.22(5)(a). The Minnesota statute specifically recognizes a home school as a type of “school” for purposes of compulsory school attendance. See Minn. Stat. § 120A.22(4).^[2] Moreover, the Minnesota Department of Education (MDE) website has a section that provides information regarding home school education in Minnesota. See MDE, Home School Education, https://education.mn.gov/MDE/fam/nphs/home/ (last visited June 2, 2020). In particular, the MDE has issued a publication called “Home-School Questions and Answers,” which states that home schooling in Minnesota is covered under the compulsory instruction statute, Minn. Stat. §§ 120A.22, and related statutes, and that home schools are considered a type of nonpublic school under Minnesota law. See MDE, Home-School Questions and Answers at 1 (questions 1-2) (link to document available at Home School Education, supra).

B. Minnesota statutory requirements for home schools.

Next, we must consider whether Minnesota law sets out requirements for home schools, and whether those requirements apply to students age 17 and older. As discussed below, we believe that while Minnesota does impose statutory requirements on home schools, home schools do not have to meet those requirements after students pass the compulsory age of 17. However, if home schooled students choose to continue to satisfy those requirements after the age of 17, Minnesota will continue to recognize the home school as an educational institution.

Under Minnesota law, home schools must meet the following criteria:

1. Instruction must be provided in at least the following subject areas;

a. basic communication skills including reading and writing, literature, and fine arts;

b. mathematics and science;

c. social studies including history, geography, economics, government, and citizenship; and

d. health and physical education.

2. Instruction, textbooks, and materials must be in the English language, except in certain circumstances for certain students for whom English is not their first or primary language.

3. Instructors must:

a. hold a valid teaching license in the field and for the grade level taught;

b. be directly supervised by a person holding a valid Minnesota teaching license;

c. successfully complete a teacher competency examination;

d. provide instruction in a school that is accredited by an accrediting agency recognized by statute or the State commissioner;

e. hold a baccalaureate degree; or

f. be the parent of the student.^[3]

4. The child’s performance must be assessed annually using a nationally norm-referenced standardized achievement examination, unless the home school is accredited.^[4] If the standardized test does not provide assessment of all subject areas listed above in Number 1, and if the parent is the instructor, the instructor must assess the child’s performance in those subject areas, unless the instructor meets the requirements of Number 3, parts a, b, or c above.

See Minn. Stat. § 120A.22; see alsoHome School Questions and Answers, supra, at 3-4 (questions 9-16).

In addition, home schools are required to submit initial and annual reports to the district superintendent. See Minn. Stat. § 120A.24(1); see alsoHome School Questions and Answers, supra, at 2-3 (questions 6-8); MDE, Initial Registration Form for Unaccredited Schools, https://education.mn.gov/mdeprod/groups/educ/documents/edform/mdaw/mdaz/~edisp/003867.pdf; MDE, Letter of Intent to Continue to Provide Instruction,https://education.mn.gov/mdeprod/groups/educ/documents/edform/mdaw/mdaz/~edisp/003868.pdf. While such reports are not required for students beyond the compulsory attendance age, Minn. Stat. § 120A.22(2), evidence of reporting or similar interactions could be evidence of ongoing student status. Lastly, the home school must maintain required documentation, including documentation that all required subjects are being taught and proof that required assessments have been administered. See Minn. Stat. § 120A.24(2); see alsoHome School Questions and Answers, supra, at 4 (question 18).

C. Minnesota recognizes home schools for children 17 (the compulsory attendance) and older.

There is no indication that the above requirements would vary based on the age of the child. As discussed below, Minnesota accepts evidence of home school instruction, and provides resources for home schools through grade 12, regardless of the child’s age. As a result, if evidence indicates that the above requirements are satisfied and the child is age 17 or above, we believe that the agency could reasonably find that the child is considered a student under Minnesota law.

Minnesota requires that most children attend school through age 17, and it is silent as to the status of children older than 17. Minn. Stat. § 120A.22. Thus, there are no specific statutes that impose requirements for home schooled students age 17 and older.^[5] However, other authorities suggest that Minnesota continues to recognize home schools that continue to satisfy the requirements after the child is past the compulsory age of school attendance.

For example, while Minnesota law only requires home schools to submit an annual letter of intent to continue to provide home school instruction to the superintendent of the local school district for students up to attainment of age 17, we contacted the MDE Ombudsperson and learned that the superintendent will accept the letter for students older than 17. See Minn. Stat. §§ 120A.22(2), 120A.24(1)(b). In addition, the MDE publication “Home-School Questions and Answers,” includes resources for standardized tests available to home schooled students up to grade 12. See Home-School Questions and Answers, supra, at 3 (question 12). It is not unusual for students to be age 18 or older during grade 12, therefore Minnesota’s reference to testing for grade 12 students supports a reasonable inference that education of students above the compulsory age is anticipated.

Finally, the conclusion that Minnesota extends recognition of home schools to children age 17 and older is consistent with the parallel recognition of attendance by public school students. While compulsory attendance is required only through the attainment of age 17, Minnesota permits public school students up to age 21 to attend public school. See Minn. Stat. § 120A.20(1).^[6] The availability of public school education beyond the compulsory age suggests that the compulsory age is intended as a minimum requirement rather than a prohibition for children older than 17 to continue schooling.

For the foregoing reasons, we believe that a home schooled child age 17 or older in Minnesota may be eligible for student benefits if the home school he or she attends meets the State law requirements discussed above. The Act provides that student benefits are only available until a student attains the age of 19. We also note that POMS PR 08005.026 (PR 17-061) no longer applies and should not be followed.

Home schools in Minnesota are not education institutions for students older than 17 years of age because they are not recognized as schools other than the compulsory attendance ages and there are no regulatory requirements for them. This opinion supersedes PR 03-043, dated January 31, 2001.

QUESTION PRESENTED

You asked whether J~ is eligible for student benefits as a home school student at the age of 18 or older. In order to answer this question, we first considered whether home schooling is an educational institution.

For the reasons discussed below, we conclude that home schooling in Minnesota is not an educational institution above age 17, because home schools are not defined as a school as to this age group and there are no home schooling requirements or regulations in state law.

BACKGROUND

The claimant, J~, is seeking child’s insurance benefits (CIB), due to his reported status as a full-time student in home school. His date of birth is October XX, 1997 and he turned 18 years old on October XX, 2015. The agency uses Form SSA-1372-BK as the primary means for determining whether a child is a full-time student at a qualifying educational institution. POMS RS 00205.735. The claimant submitted Form SSA-1372-BK on July XX, 2016, indicating that he attended home school from September 2015 until May 27, 2016 on a full-time basis (25-30 hours per week). Subsequently, he attended Lake Superior College, a technical school, from August 23, 2016, with an anticipated end of the school year in May 2017. J2~, J~’s mother, certified Form SSA-1372-BK. J2~ indicated that the information the claimant provided on the form was correct, and that the home school’s course of study was at least 13 weeks in duration.

DISCUSSION

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. If a student attains age 19 in a month while in full-time attendance and has not completed the requirements for, or has not received, a diploma or equivalent certificate from a secondary school, the student is deemed not to have attained age 19. POMS RS 00205.325B. The date the student’s entitlement ends depends on whether the school operates on a yearly basis or on a quarterly or semester basis requiring reenrollment. For schools that operate on a yearly basis, student benefits end the earlier of (1) The first day of the third month following the month in which the student attains age 19; or, (2) The first day of the month after the month the student completes the school year in which is in full-time attendance. POMS RS 00205.325C. Under the POMS, the maximum entitlement period for a student whose school operates on a yearly basis ends at age 19 and 2 months. POMS RS 00205.325C.

In order to qualify as an educational institution for the purposes of awarding student benefits, the school must provide an 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 00205.200A. 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 00205.250B. In order to be eligible for student benefits as a home-schooled 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 “the home school the student attends meets the requirements of the State law where he or she resides.” POMS RS 00205.275B.

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 00205.275B. 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. § 404.367b, (c); POMS RS 00205.300C. The claimant satisfied this requirement because he attended home school for at least 20 hours per week during a non-correspondence course of more than 13 weeks, as he indicated and as his mother certified on Form SSA-1372-BK.

Because the claimant resides in Minnesota, it is also necessary to examine whether Minnesota law recognizes home schools as an educational institution. In Minnesota, all children between the ages of seven and seventeen years of age must receive instruction. Minn. Stat. Ann. § 120A.22(5). Minnesota defines home schools only within the context of compulsory attendance. “For the purposes of compulsory attendance, a ‘school’ means a public school . . . or a nonpublic school, church or religious organization, or a home school in which a child is provided instruction in compliance with [Minn. Stat. Ann. §§] 120A.22 and 120A.24.” See Minn. Stat. Ann. § 120A.22(4) (emphasis added). Minn. Stat. Ann. §§ 120A.22 and 120A.24 apply only within the context of compulsory attendance up to age 17. No other definition of “school” exists in the Minnesota statutes that applies to home schools. Moreover, Minnesota law does not recognize any other purpose for home schools, apart from providing compulsory education. As a result, Minnesota law does not recognize home schools as an educational institution providing elementary or secondary education after age 17. See POMS RS 00205.200.

The lack of any state law requirements for home schooling after age 17 further confirms that home schools are not an educational institution after that age. Minnesota law has requirements for curriculum, instructors, annual assessments and reporting which affect home schools. These requirements are outlined in Minn. Stat. Ann. §§ 120A.22(9), (10), (11) and 120A.24(1)(a), (b). However, these requirements only apply to a child who is required to receive instruction (between ages seven and seventeen) and to instruction that is intended to fulfill that requirement. Minn. Stat. Ann. § 120A.22(2). Nor do any requirements in the administrative code apply to home schools after age 17. Minnesota law does not prescribe any graduation requirements for home school students In contrast to home schools, Minnesota provides educational expectations and graduation requirements for public school students older than 17, and indeed expressly permits the admission of children up to age 21 to an adult high school diploma program. E.g., Minn. Stat. Ann. §§ 120B.02(2); 120B.024. Home schools thus do not provide an 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).

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 Minnesota, home schools do not have any requirements that must be met after age 17, including those mentioned in the Federal Register. Accordingly, Minnesota does not recognize home schooling after age 17 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.

We note that this opinion conflicts with previous Legal Precedential Opinions at POMS PR 08005.026 and PS 08005.026. These older Legal Precedential Opinions regarding home schooling in Minnesota, however, were issued under now-obsolete statutes. For example, in 2012, Minnesota clarified that annual achievement testing for children not enrolled in public school applied only to children between ages seven and sixteen. 2012 Minn. Session Laws, Ch. 239, Art. 1, s.2. 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.

CONCLUSION

Based on the foregoing, for students older than age 17, we conclude that home schools in Minnesota are not educational institutions, because they are not recognized as schools apart from the compulsory education ages and because there are no regulatory requirements that apply to them. Accordingly, we find that J~ is not eligible for Child Insurance Benefits.

Minnesota recognizes home schooling under its compulsory attendance law; however, specific curriculum, instructor and notification requirements must be met.

The instruction must include basic communication skills including reading, writing, literature and fine arts; mathematics and science; social studies including history, geography and government; and health and physical education. The instruction and materials must be in English.

The home school instructor must meet one of the following requirements:

• •

  Hold a valid Minnesota teaching license in the field and grade level taught;

• •

  Be directly supervised by someone with a valid Minnesota teaching license;

• •

  Successfully complete a teacher competency exam;

• •

  Provide instruction in a school accredited by an agency recognized by Minnesota law or by the commissioner;

• •

  Hold a bachelor's degree; or

• •

  Be the parent of a child annually assessed for performance under Minnesota law.

The home school instructor must submit the following information to the superintendent of the district in which the child resides:

• •

  By October 1 of each school year the name, birth date and address of each child receiving instruction;

• •

  The name of each instructor and evidence of compliance with one of the home school instructor requirements;

• •

  A yearly instruction calendar; and

• •

  For a child instructed by a parent who meets only the home instructor requirement of being the parent of a child annually assessed for performance, a quarterly report card on the child's achievement in each subject area.

A nonpublic school accredited by an agency recognized by Minnesota law is exempt from these requirements except for furnishing the name, birth date and address of the child.

In order to determine whether a home school student is carrying a subject load that is considered full-time for day students under standards and practices of the State or other jurisdiction in which he/she resides, it may be necessary to contact the school board to verify the number of days and hours of instruction in the school calendar for the appropriate school district.

In every case, ask the home school instructor to submit evidence that the Minnesota laws are being met.

In Minnesota, the parent of a child is primarily responsible for insuring that the child acquires knowledge and skills essential for effective citizenship. Minn. Stat. § 120A.22, Subd. 1. A parent is a parent, guardian or other person having legal custody of a child. Minn. Stat. § 120A.22, Subd. 3. All children between the ages of seven and 16 must receive instruction. Minn. Stat. § 120A.22, Subd. 5. For the purposes of the compulsory attendance law, a school is a public school or a nonpublic school, church or religious organization, or a home school where the child is instructed according to the dictates of Minn. Stat. §§ 120A.22 and 120A.24. Instruction must be given in at least the following subject areas: (1) basic communication skills including reading, writing, literature and fine arts; (2) mathematics and science; (3) social studies including history, geography and government; and (4) health and physical education. Minn. Stat. § 120A.22, Subd. 9. Instruction and materials must be in the English language. Id.

A home school instructor must meet at least one of the following requirements:

(1) hold a valid Minnesota teaching license in the field and the grade level taught;

(2) be directly supervised by someone with a valid Minnesota teaching license;

(3) successfully complete a teacher competency exam;

(4) provide instruction in a school that is accredited by an agency recognized according to the dictates of Minn. Stat. § 123B.445, or recognized by the commissioner;

(5) hold a bachelor's degree; or

(6) be the parent of a child annually assessed for performance under the dictates of Minn. Stat. § 120A.22, Subd. 11. Minn. Stat. § 120A.22, Subd. 10. Subdivision 11 provides that each year every child not enrolled in a public school must be performance tested against a nationally norm-referenced standardized achievement test. The district superintendent and the person in charge of the child's instruction must agree on the specific test to be used as well as the administration and location of the test. If the test does not assess all subject areas enumerated in Minn. Stat. § 120A.22, Subd. 9, the parent must assess the child's performance in the applicable subject area(s); this requirement applies only to parents who do not meet the requirements of subdivision 10, clauses 1-3. Minn. Stat. § 120A.22, Subd. 11, clause (b). If the above mentioned tests indicate that the child's performance on the total battery score is at or below the 30th percentile or one grade level below the child's age, the parent is required to obtain additional evaluation of the child's abilities and performance in order to assess whether the child has learning problems. Minn. Stat. § 120A.22, Subd. 11(c).

Minnesota statute § 120A.24 requires the person in charge of providing instruction to a child to submit the following information to the superintendent of the district in which the child resides: (1) the name, birth date and address of each child receiving instruction by October 1 of each school year; (2) the name of each instructor and evidence of compliance with one of the requirements specified in Minn. Stat. § 120A.22, Subd 10; (3) a yearly instruction calendar; and (4) for each child instructed by a parent who only meets the requirement of Minn. Stat. § 120A.22, Subd. 10, clause (6), a quarterly report card on the achievement of the child in each subject area specified in Minn. Stat. § 120A.22, Subd. 9. The person in charge of instructing the child must make available documentation indicating that the subjects required in Minn. Stat. § 120A.22, Subd. 9 are being taught, including class schedules, copies of materials used for instruction and descriptions of the methods used in assessing performance. Minn. Stat. § 120A.24, Subd. 2. A nonpublic school, person or other institution which is accredited by an agency recognized according to Minn. Stat. § 123B.445, or the commissioner, is exempt from the above listed requirements of Minn. Stat. § 120A.24, except for reporting the name, birth date and address of the student to the superintendent. Minn. Stat. § 120A.24.

CONCLUSION

These are the current requirements for home schooling in each of the six states in our region.