TN 27 (02-17)

PR 08005.028 Missouri

A. PR 17-029 Update to Iowa Home Schooling Based on Amendments to Iowa Chapter 229A: Private Instruction

Date: December 16, 2016

1. Syllabus

Precedents regarding home schooling have been updated for Iowa, Nebraska, and Missouri:

  • To meet the definition of student, Iowa changed the law in 2013 to permit home schooling under independent private instruction with very little oversight in addition to the more regulated competent private instruction as was required prior to the law change. (Iowa Code §299A – Private Instruction);

  • Effective May 21, 2016, Nebraska is providing parents with forms that allow them to file for a home school exemption as an exempt school to the State’s compulsory attendance law. After providing the necessary information and affirmations, the State will provide parents with a letter of acknowledgment upon approval;

  • Missouri increased the compulsory school attendance age from 16 to 17 in 2009 (Missouri Annotated Statute Section 167.031); and

  • Kansas remains the same.

2. Opinion

I. ISSUES PRESENTED

You asked for updates to the Iowa Regional Chief Counsel Precedents in POMS PR 08005.018 and PS 08005.018 – Iowa Home Schooling, based on amendments to Iowa Chapter 229A: Private Instruction, which were effective July 1, 2013. These precedents provide guidance on developing student status for home schooled students. Effective July 1, 2013, amendments to Iowa statutes established a new home schooling arrangement and made some other requirements optional. Based on our research, we offer the following analysis of the 2013 amendments and the updates needed to make POMS PR 08005.018 and PS 08005.018 consistent with current Iowa law on home schooling.

In addition to updating the Iowa precedents regarding home schooling, we have taken this opportunity to provide an update on home schooling procedures for the other three states in our region: Kansas, Nebraska, and Missouri. Our research revealed minor changes in Nebraska and Missouri law, and the analysis below contains guidance on the current law in these states.

II. Analysis

Section 202(d) of the Social Security Act (Act) provides that child’s insurance benefits usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6), (7). Entitlement to child’s benefits may continue, however, if (among other things) the child “was a full-time elementary or secondary student and had not attained the age of 19.” 42 U.S.C. § 402(d)(1)(B). The Act defines a full-time elementary or secondary student as “an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the [Commissioner] (in accordance with regulations prescribed by the Commissioner) in the light of the standards and practices of the schools involved . . . .” Id. at § 402(d)(7)(A). The Act defines an elementary or secondary school as “a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located.” Id. at § 402(d)(7)(C)(i). Except for two specific exceptions noted in the Social Security regulations, the student must be scheduled to attend school for at least 20 hours per week in order to be considered a full-time student. See 20 C.F.R. § 404.367(c).

Effective July 24, 1996, the regulations were revised to specifically include students enrolled in home schooling or independent study programs authorized by state or local law. See 61 Fed. Reg. 38,361 (1996) (codified at 20 C.F.R. § 404.367 (1997)). The regulations allow child’s benefits to continue to age 19 if the child is being “instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [the child] reside[s].” 20 C.F.R. § 404.367(a)(1). The child must also carry “a subject load which is considered full-time for day students under standards and practices set by the State or other jurisdiction in which [the child] reside[s].” 20 C.F.R. § 404.367(b).

Iowa

For a child who has reached the age of 6 years and is under 16 years of age by September 15, Iowa requires compulsory attendance at a public school or an accredited nonpublic school, or the parent or guardian must place the child under competent private instruction or independent private instruction. See Iowa Code §§ 299.1, 299.1A (2016). If a child enrolled in a school district or accredited nonpublic school reaches the age of 16 on or after September 15, the child remains of compulsory age until the end of the regular school year. See Iowa Code § 299.1A.

Iowa statutes define “private instruction” as “instruction using a plan and a course of study in a setting other than a public or organized accredited nonpublic school.” Iowa Code § 299A.1(2)(c). This definition encompasses home schooling. Prior to July 1, 2013, Iowa recognized only “competent private instruction;” however, amendments effective July 1, 2013, established another type of private instruction, called “independent private instruction.” See Iowa Code § 299A.1(1); House File 215. Competent private instruction requires instruction on a daily basis for at least 148 days during a school year, to be met by attendance for at least 37 days each school quarter, by or under the supervision of a licensed practitioner or a nonlicensed person, which results in the student making adequate progress. Iowa Code § 299A.1(2)(a).

Competent private instruction encompasses dual enrollment and home school assistance programs. See Iowa Code §§ 299A.2, 299A.8, 299A.12. Dual enrollment involves enrollment of a child receiving competent private instruction with the school district for the purposes of attending courses, participating in extracurricular activities, or obtaining special education services. See Iowa Code § 299A.8; Iowa Department of Education, Private Instruction Handbook (Home Schooling or Enrollment in a Non-Accredited “School” 2016-2017 (Handbook) at 8 (available at https://www.educateiowa.gov/sites/files/ed/documents/2016-2017PrivateInstructionHandbook.pdf) (last visited Dec. 13, 2016). School districts may provide a home school assistance program, which involves employing one or more properly-licensed instructors to provide instruction or instructional supervision of competent private instruction. See Iowa Code § 299A.12; Handbook at 10.

For students receiving competent private instruction provided by a licensed practitioner, the licensed practitioner must possess a valid license that is appropriate for the age and grade level of the child, and the licensed practitioner is responsible for monitoring the child’s progress. Iowa Code § 299A.2; Iowa Department of Education, Handbook at 11 (available at https://www.educateiowa.gov/sites/files/ed/documents/2016-2017PrivateInstructionHandbook.pdf) (last visited Dec. 13, 2016). Students receiving competent private instruction provided by a licensed practitioner that is not in an accredited school or through a home school assistance program operated by a school district or accredited nonpublic school shall submit a report in duplicate to the public school district by September 1 of each school year. Iowa Code § 299.4. The report shall state the name and age of the child, the period of time during which the child will be under competent private instruction for the year, an outline of the course of study (subjects covered, lesson plans, and time spent on the areas of study), the texts used, and the name and address of the instructor. See id.

Children between the ages of 7 and 15, inclusive, who receive competent private instruction provided by a nonlicensed person, may, but are not required to, be assessed annually to determine if adequate progress is being made. Iowa Code §§ 299A.3, 299A.4; Handbook at 11. Annual assessment can include standardized testing, portfolio assessment, or submittal of a report card from an accredited correspondence school. Handbook at 11. In lieu of annual achievement evaluations, a parent, guardian, or legal custodian of a child may submit all of the following evidence of adequate academic process: (1) a book of lesson plans, a diary, or other written record indicating the subjects taught and the activities of the child; (2) a portfolio of the child’s work; and (3) completed assessment evaluations that are administered as part of the competent private instruction. Iowa Code § 299A.4(7). This evidence is then reviewed by a licensed Iowa practitioner. Id. In addition, a parent, guardian, or legal custodian of a child receiving competent private instruction provided by a nonlicensed person may, but is no longer required to, complete and send to the school district the report described in Iowa Code § 299.4 and referenced above. See Iowa Code § 299A.3.

By contrast, “independent private instruction” refers to instruction that meets the following criteria: (1) is not accredited; (2) enrolls not more than four unrelated students; (3) does not charge tuition or fees; (4) provides private or religious-based instruction as its primary purpose; (5) provides enrolled students with instruction in mathematics, reading and language arts, science, and social studies; (6) provides, upon written request from the superintendent of the school district in which the independent private instruction is provided, or from the director of the department of education, a report identifying the primary instructor, location, name of the authority responsible for the independent private instruction, and the names of the students enrolled; (7) is a nonpublic school and does not provide “competent private instruction” as described above; and (8) is exempt from all state statutes and administrative rules applicable to a school, a school board, or a school district, except as otherwise provided in chapter 299 and chapter 299A. Iowa Code § 299A.1(2)(b). Unlike competent private instruction, independent private instruction has no similar requirement for daily instruction. Handbook at 8. In addition, independent private instruction is exempt from annual assessment requirements. Id. at 8.

The Handbook provides additional guidance for distinguishing competent private instruction from independent private instruction. Per the Handbook, no form is required to enroll a child in independent private instruction in Iowa, although parents are advised to inform the local school district that they are choosing this option for education. See Handbook at 8. Independent private instruction instructors are responsible for their own students’ progress; however, there is no requirement to assess students annually or report to the school district or the Iowa Department of Education. See Handbook at 8. However, if requested in advance, the district shall make available courtesy standardized testing to students receiving independent private instruction. See Handbook at 4, 18. The superintendent of the district of residence of a student enrolled in independent private instruction, or the director of the Iowa Department of Education, may, but is not required to, make a written request for a report from a parent identifying the primary instructor, location, name of the authority responsible for the independent private instruction, and the names of the students enrolled. See Iowa Code § 299A.1(2)(b)(6); Handbook at 4, 8, 18. Although independent private instruction must cover the four required content areas of mathematics, reading and language arts, science, and social studies, the school district has no right to request documentation confirming that those areas are covered in the instruction provided. See Iowa Code § 299A.1(2)(b)(5); Handbook at 7-8.

In summary, as discussed above, under changes to Iowa law in 2013, home schooling in Iowa is no longer limited to competent private instruction. As of July 1, 2013, with passage of House File 215, independent private instruction meets the statutory requirements for home schooling in Iowa, and there is very little state oversight of home schools operating under independent private instruction. In addition, reporting and assessment requirements are no longer mandatory for competent private instruction provided by a nonlicensed practitioner.

Kansas

According to the Kansas Department of Education, Kansas does not specifically authorize “home schooling” by statute, but instead recognizes “non-accredited private schools” as a mechanism for allowing home instruction. See Kansas Department of Education, Homeschooling in Kansas, (available at http://www.ksde.org/Portals/0/ECSETS/FactSheets/FactSheet-HomeSchool.pdf) (last visited Dec. 13, 2016); Kan. Stat. Ann. §§ 72-53,100-102 (2016). Non-accredited school attendance can satisfy state compulsory attendance laws. See id.; see also Kan. Stat. Ann. § 77-1111. Instructors in non-accredited schools need not be certified as teachers by the state, but they must be “competent instructors.” Id. Registration consists of filling out a form provided by the State, and the State retains a record of the non-accredited schools. Id. Registration may be made online. See Kansas Department of Education, Non-Accredited Private School Online Registration, (available at https://apps.ksde.org/naps_form/default.aspx) (last visited Dec. 13, 2016).

Kansas law compels school attendance for children between the ages of 7 and 18.

See Kan. Stat. Ann. § 72-1111. There are exceptions for certain children, including what is popularly referred to as an “Amish” exception that provides for the cessation of schooling after eighth grade for some children. See id. Private schools must have a school year that is substantially similar in length to that of a public school. See id.; Kan. Stat. Ann. § 72-1106. A public school student must attend 186 days of school through eleventh grade totaling 1,186 hours per year, and 181 days of school in twelfth grade, totaling 1,086 hours per year.

See Kan. Stat. Ann. § 72-1106.

As stated in our previous opinions, In re Sawyer, 672 P.2d 1093 (Kan. 1983), remains the only Kansas Supreme Court or appellate case in this area as no other appellate case has addressed private non-accredited instruction since that time. In Sawyer, the Court held that two children were “in need of care” because they were not attending school as required by the statute. See id. School sessions only lasted a half day. See id. at 1095-96. The education activities were unaccredited, unplanned, and unscheduled, and the teacher was uncertified. See id. at 1095-97. The Court noted that teachers need not be certified, but cited a prior case in which a teacher with a Kansas teaching certificate was found to be a “competent” instructor. See id. at 1097 (citing State v. Lowry, 383 P.2d 962 (Kan. 1963) (teacher competent, but private school invalid for curriculum reasons since eliminated by the Legislature)). Following Sawyer through 1994, three district courts held that non-accredited private schools conducted in the home were bona fide private schools using competent instructors, and no home schools were determined to be invalid. See David S. Adams, Home Schooling in Kansas, Friend or Foe, Journal of the Kansas Bar Association, February/March 1994. We were unable to find cases after that date that addressed the validity of non-accredited private schools in Kansas.

On November 21, 1985, shortly after Sawyer, in an opinion prepared for the Johnson County District Attorney, Dennis Moore, the Kansas Attorney General stated that their office recognized that home instruction was widespread across Kansas. See Kan. Atty. Gen. Op. No. 85-159 (available at http://ksag.washburnlaw.edu/opinions/1985/1985-159.pdf) (last visited Dec. 13, 2016). The Attorney General opined that there was no authority for local school board oversight or inspection of home schools. See id. The proper remedy if a child was not attending school in the manner set forth in the compulsory attendance law was for the Kansas Department for Children and Families (KDCF) (formerly the State Department of Social and Rehabilitative Services (SRS)) to investigate. See id. The Attorney General stated that even considering Sawyer, it cannot be automatically assumed that all home instruction violates Kansas law, and that KDCF had a duty to apply the factors set forth in Sawyer to determine whether a violation of compulsory school instruction had occurred. See id.

Nebraska

Nebraska requires compulsory regular attendance at public, private, denominational, or parochial school for children of mandatory attendance age. See Neb. Rev. Stat. § 79-201(2) (2016). A child is of mandatory attendance age if the child (a) will reach 6 years of age prior to January 1 of the then-current school year and (b) has not reached 18 years of age. See Neb. Rev. Stat.

§ 79-201(1). Such compulsory regular attendance can be satisfied by attendance at a school that elects to not meet accreditation or approval requirements. See Neb. Rev. Stat. § 79-201(2). “In Nebraska, ‘home schools’ are referred to as exempt schools and are considered non-approved or non-accredited schools.” Nebraska Department of Education, Exempt (Home) School Program, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited on Dec. 13, 2016).

Section 79-1601(3) of the Nebraska statutes provides that private, denominational, or parochial schools may elect not to meet state accreditation or approval requirements. However, such elections are only effective if the parents or legal guardians of children attending such schools submit a statement to the Commissioner of Education that the state accreditation or approval requirements either: (1) violate sincerely held religious beliefs of the parents, or (2) interfere with the decisions of the parents or in directing the student’s education. See Neb. Rev. Stat.

§ 79-1601(3). In addition, parents seeking exemption must affirm that they will meet minimum health and safety requirements, teach specific subjects, and report attendance. See id. at § 79-1601(3)-(4). Individuals instructing students are not required to meet the state certification requirements for teachers. See id. at § 79-1601(5). However, evidence of competence to provide instruction must be provided by other means. See id.

Effective May 21, 2016, Title 92 of the Nebraska Administrative Code was amended, making Rule 13 the current rule governing the procedures and standards for parents (or legal guardians) filing for an exemption. See Title 92, Neb. Admin. Code, Ch. 13 (2016); Nebraska Department of Education., Exempt (Home) School Program, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited on Dec. 13, 2016). The Nebraska Department of Education has developed forms for the parent to complete attesting that the home school meets the requirements to qualify as an exempt school. Changes effective May 21, 2016, also revised the due date for filing these forms with the Nebraska Department of Education to July 15 annually. See id. The forms are available online at the Nebraska Department of Education website. See Nebraska Department of Education, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited Dec. 13, 2016).

These forms include a statement of election regarding the decision to home school (religious reasons or non-religious reasons) and information regarding the child’s age and the name and address of the exempt school. The forms also include affirmations regarding annual filing requirements; the proper sequential instruction in the language arts, mathematics, science, social studies, and health; and the competency of those monitoring instruction to teach the above subjects. The forms also require the parent or legal guardian to include the dates of operation of the exempt school, which must allow sufficient time to meet the required minimum hours of instruction of 1,032 in elementary schools and 1,080 in secondary schools. See Form A: Parent or Guardian Form; 2016/17 Information Summary for Parent Representative, (available at https://www.education.ne.gov/fos/OrgServices/ExemptSchools/Downloads/1617/R13_Checklist_and_Forms.pdf) (citing Title 92, Neb. Admin. Code, Ch. 13) (last visited Dec. 13, 2016). Upon approval, the State Commissioner of Education will send a Letter of Acknowledgment to the parent. See Nebraska Department of Education, Exempt (Home) School Frequently Asked Questions (FAQs) (2016/17 School Year) at 7 (available at https://www.education.ne.gov/FOS/OrgServices/ExemptSchools/Downloads/1617/FAQs.pdf) (last visited Dec. 13, 2016).

The administrative rules provide that a parent must apply for exempt status only until the child reaches age 18. Once the child reaches age 18, compulsory education under Nebraska law is no longer required; therefore, filing for exempt status is no longer required.

Missouri

Under Missouri law, any parent may educate a child at home and the parent does not need to have a teaching certificate or meet any educational requirements. See Mo. Ann. Stat. § 167.031 (2016); Missouri Department of Elementary and Secondary Education, “Home Schooling,” (available at https://dese.mo.gov/governmental-affairs/home-schooling) (last visited Dec. 13, 2016). In 2009, the compulsory attendance age increased from 16 years of age to 17 years of age, or once the student successfully completes 16 credits toward high school graduation. See id.; 2009 Mo. Legis. Serv. S.B. 291. A child between 7 and 17 years of age must attend some combination of public, private, parochial, or home school. See Mo. Ann. Stat. § 167.031.

Under Missouri law, a “home school” is a school, whether incorporated or unincorporated, that: (a) has as its primary purpose the provision of private or religious-based instruction; (b) enrolls pupils between the ages of 7 and 17 years, of which no more than 4 are unrelated by affinity or consanguinity in the third degree; and (c) does not charge or receive consideration in the form of tuition, fees, or other remuneration in a genuine and fair exchange for provision of instruction. See id.

As evidence that a child is receiving regular instruction, Missouri statutes require the parent to maintain the following records: (a) a plan book, diary, or other written record indicating subjects taught and activities engaged in; (b) a portfolio of samples of the child’s academic work; and (c) a record of evaluations of the child’s academic progress. See Mo. Ann. Stat. § 167.031.2.(2)(a). In the alternative, the parent may maintain other written, or credible evidence equivalent to the evidence listed above. See id. The statute does not require this proof for children above the age of 16. See Mo. Ann. Stat. § 167.031.2(3). Moreover, a parent’s statement that such a child is in school is a defense against a prosecution for educational neglect. See Mo. Ann. Stat.

§ 167.031.5.

The home school instruction must include at least 1,000 “hours of instruction” during the school year (July 1 and ending the next June 30), and at least 600 hours of this must be in reading, language arts, mathematics, social studies, and science, or academic courses that are related to these subjects and compatible with the pupil's age and ability. At least 400 of the 600 hours must occur at the regular home school location. See Mo. Ann. Stat. § 167.031.2(2)(b).

There is no Missouri statute that requires the parent or guardian to seek written approval from the school board to home school the child. There is also no requirement that the home school must register with the state; however, Missouri statute states that a parent or legal guardian may notify the superintendent of schools or the recorder of the county of deeds, in the county where the child legally resides, of their intent to home school within 30 days after the establishment of the home school and by September 1 annually thereafter. See Mo. Ann. Stat. § 167.042. The notice should include the name and age of each child attending the home school, the address and telephone number of the home school, the name of each person teaching in the home school, and the name, address, and signature of each person making the declaration of enrollment. See id. Home-schooled students do not register with the Department of Elementary and Secondary Education. See Missouri Department of Elementary and Secondary Education, “Home Schooling,” (available at https://dese.mo.gov/governmental-affairs/home-schooling) (last visited Dec. 13, 2016).

III. Conclusion

If you have questions about applying the requirements in Iowa or any of the other states in our region to the facts of a specific case, please feel free to contact us.

Kristi A. Schmidt

Chief Counsel, Region VII

By: Meghan J. McEvoy

Assistant Regional Counsel

B. PR 99-140 Missouri Home Schooling

DATE: January 12, 1998

1. SYLLABUS

MISSOURI: The State of Missouri statutes include home school laws. A home school is recognized as a school in the State of Missouri as long as the parent is maintaining the records listed in the Missouri opinion below.

In every case, the parent should be asked to submit evidence to determine if the Missouri statutes are being followed.

2. OPINION

You have requested our opinion as to whether a home schooling situation in Kansas qualifies under section 202(d)(7) of the Social Security Act (the Act), 42 U.S.C. § 402(d)(7), as a school that provides elementary or secondary education in accordance with the laws of the state. In addition to answering your question, we have taken this opportunity to update our prior memorandum dated September 25, 1992, regarding home schooling in Iowa, Kansas, Missouri, and Nebraska. See Memorandum, "Home Schooling in Iowa. Kansas, Missouri, and Nebraska,' Region VII (Smith & Yost) to ARC, SSA, September 25, 1992.

Section 202(d) of the Act provides that child's insurance benefits usually terminate when the child attains age 18. 42 U.S.C. § 402(d)(6) and (7). Entitlement to child's benefits may continue, however, if (among other things) the child "was a full-time elementary or secondary student and had not attained the age of 19." 42 U.S.C. § 402(d)(1). A full-time elementary or secondary student is defined as "an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the [Commissioner] (in accordance with regulations prescribed by him) in the light of the standards and practices of the schools involved. . ." Id. at § 402(d)(7)(A). An elementary or secondary school is defined as "a school which provides elementary or secondary education, respectively, as determined under the law of the State or other jurisdiction in which it is located." Id. at § 402(d)(7)(C)(i). Except for two specific exceptions noted in the Social Security regulations, the student must be scheduled to attend school for at least twenty hours per week in order to be considered a full-time student. 20 C.F.R. § 404.367(c) (1997).

Effective July 24, 1996, the regulations were revised to specifically include students enrolled in home schooling or independent study programs authorized by state or local law. 61 Fed. Reg. 38,361 (1996) (codified at 20 C.F.R. § 404.367 (1997)). The regulations now allow child's benefits to continue to age 19 if the child 15 being 'instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which [the child] reside[s]." 20 C.F.R. § 404.367(a)(1) (1997). If the child is in a home schooling program as des