TN 14 (10-08)

PR 08005.034 New Mexico

A. PR 09-010 New Mexico State Law Requirements for Home Schooling (NH Louise G~; SSN ~) - REPLY

DATE: October 22, 2008

1. SYLLABUS

New Mexico recognizes home schooling. A person operating a home school in New Mexico must:

"Provide written notice to the New Mexico Secretary of Education within 30 days of establishing the home school and must notify the Secretary in writing by April 1 of each subsequent home school year about the school district the home-schooled child would attend if he or she were not attending the home school;

"Maintain immunization records;

"Provide instruction by a person who possesses at least a high school diploma or its equivalent; and

"Show that the curriculum includes reading, language arts, mathematics, social studies, and science.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether a home school qualifies under the Social Security Act (Act) as a school that provides elementary or secondary education to establish eligibility to continued child's insurance benefits. Specifically, you asked whether an 18-year old child, home-schooled by his father, qualifies as a full-time student of a secondary school and is therefore entitled to receive continued child's insurance benefits on the number holder's account. In our opinion, after reviewing the facts and relevant law, we do not have sufficient information to determine whether the child qualifies as a full-time secondary student under New Mexico law to entitle the child to continued child's insurance benefits on the number holder's account.

As we understand the facts, in October 1998, Erick G~ began receiving Social Security child's insurance benefits on the account of his mother, Louise G~ (number holder). In April 2008, Erick's eligibility to child's insurance benefits terminated when he attained the age of 18. In order to obtain continued child's insurance benefits after the age of 18, Erick submitted Form SSA-1372, Student's Statement Regarding School Attendance (SSA-1372 Form), on which he stated that his father, Neill G~ (Mr. G~), home-schooled him from August 20, 2007, through May 30, 2008, and would continue to do so from August 2008 through May 2009. The SSA-1372 Form, which Erick and his father signed, also indicates that Erick attends the home school for 30 hours per week and that he expects to graduate in May 2009. Erick also provided a May 2005 Notification of Establishment of a Home School form sent to the New Mexico Board of Education, a 2006-2007 Confirmation of Notification of Establishment of a Home School form from the New Mexico Board of Education (Confirmation form), a 2007-2008 Confirmation form, a 2008-2009 Confirmation form, Erick's immunization records, and Mr. G~'s Associate's Degree from DeVry Institute of Technology. Mr. G~ did not provide copies of Erick's transcripts and detailed progress reports but indicated that such documentation was available upon request.

The Act provides for the payment of child's insurance benefits to certain persons over the age of 18 who are full-time secondary school students. 42 U.S.C. §§ 402(d)(1), (d)(7)(A); see 20 C.F.R. § 404.350(a)(5). The Act provides that 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. 42 U.S.C. § 402(d)(7)(C)(i); see 20 C.F.R. § 404.367(a). The Social Security Administration (Agency) considers a student to be a full-time secondary student if the student meets the following conditions: (1) he receives instruction in secondary education at home in accordance with a home school law of the state in which the student resides; (2) he is in full-time attendance in a course of at least 13 weeks duration and carries a subject load considered full-time for day students under the home school standards and practices set by the state in which the student resides; and (3) he is considered in full-time attendance because he attends school at least 20 hours per week. 20 C.F.R. §§ 404.367(a), (b), (c). In this case, Erick resides in New Mexico; therefore, New Mexico law is controlling.

We first look at whether Erick receives instruction in secondary education at home in accordance with New Mexico law. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a). Secondary schools in New Mexico provide instruction for grades nine through twelve. N.M. Stat. Ann. § 22-1-3(B). The documents provided by Mr. G~, such as the May 2005 Notification and the 2006-2007, 2007-2008, and 2008-2009 Confirmation forms, indicate that Erick has received and/or is currently receiving instruction for grades nine through twelve.

Additionally, in order to establish a home school in New Mexico, a person who operates a home school must give written notice to the New Mexico Secretary of Education within 30 days of its establishment and notify the Secretary in writing on or before April 1 of each subsequent year of operation of the school district from which the home school is drawing students. N.M. Stat. Ann. § 22-1-2.1. The home school operator must also maintain records of student disease immunizations and provide instruction by a person possessing at least a high school diploma or its equivalent. Id. In this case, the evidence establishes that Mr. G~ successfully complied with the requirements to establish a home school in accordance with the New Mexico statutory procedures. See N.M. Stat. Ann. § 22-1-2.1. He provided timely notification of the establishment of a home school to the New Mexico Secretary of Education, as evidenced by the Confirmation forms, maintained Erick's immunization records, and possessed a high school diploma or its equivalent. Id. Thus, the evidence establishes that Erick satisfied the first condition because he receives instruction in secondary education at home in accordance with New Mexico law. See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a).

We next look at whether Erick is in full-time attendance in a course of at least 13 weeks duration and carries a subject load considered full-time for day students under the home school standards and practices set by New Mexico. See 20 C.F.R. § 404.367(b). Mr. G~ certified on the SSA-1372 Form that Erick's home school course of study was at least 13 weeks in duration. Regarding the subject load for home students, New Mexico does not specifically define what constitutes a "subject load considered full-time for day students." See id. However, New Mexico law does provide that a home school offers a basic academic educational program, including reading, language arts, mathematics, social studies, and science. N.M. Stat. Ann. § 22-1-2. In this case, we do not have sufficient information to determine whether Erick carries a subject load considered full-time for day students. See 20 C.F.R. § 404.367(b). To the contrary, Erick failed to provide any information concerning the curriculum. Therefore, we are unable to determine whether Erick is a full-time student according to Agency regulations.

However, Mr. G~ indicated in a letter dated March 19, 2008, that additional information was available, consisting of Erick's transcripts from his Advanced Placement classes and detailed progress reports showing specific test grades. We recommend that the Agency obtain this information, along with other information evidencing Erick's home school curriculum. If the additional information shows that Erick has taken home school courses in reading, language arts, mathematics, social studies, and science, then Erick has satisfied the second condition that he carry a subject load considered full-time for day students. If, however, the information the Agency receives is not clear concerning Erick's curriculum, please feel free to resubmit the additional documentation to our Office. Once our Office receives the documentation, we will provide an updated opinion. Currently, though, Erick has not satisfied the second condition that he carry a subject load considered full-time for day students under the home school standards and practices set by New Mexico. See 20 C.F.R. § 404.367(b).

Finally, we look at whether Erick is considered in full-time attendance because he attends school at least 20 hours per week. See 20 C.F.R. § 404.367(c). Erick stated on the SSA-1372 Form that he attends home school for 30 hours per week, which satisfies the Agency requirement that he attend school at least 20 hours per week. See id.

In summary, we do not have sufficient information to determine whether Erick qualifies as a full-time secondary student under New Mexico law to entitle him to continued benefits on the number holder's account. We recommend that the Agency request additional information from Mr. G~, consisting of Erick's transcripts from his Advanced Placement classes and detailed progress reports showing specific test grades, along with other information evidencing Erick's home school curriculum. If the additional information shows that Erick has taken home school courses in reading, language arts, mathematics, social studies, and science, then Erick has satisfied the second condition that he carry a subject load considered full-time for day students, and hence, qualifies as a full-time secondary student to entitle him to continued benefits. If however, the information the Agency receives is not clear concerning Erick's curriculum, please forward the information to our Office, and we will provide an updated opinion.

Michael M~
Chief Counsel, Region II

By:
Carolyn E. W~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508005034
PR 08005.034 - New Mexico - 10/30/2008
Batch run: 01/27/2009
Rev:10/30/2008