This memorandum responds to your request for an opinion regarding whether an eighteen-year-old
claimant, homeschooled by his mother, qualifies as a full-time student of a secondary
school and is therefore entitled to receive continued child’s insurance benefits (also
referred to as student benefits) on the number holder’s account. See 42 U.S.C. § 402(d)(1)(B), (7)(A); 20 C.F.R. §§ 404.350(a)(5), 404.367. Specifically,
you asked whether year-round homeschooling for four hours a day is sufficient under
Oklahoma law to pay student benefits to N~ (N~), son of N2~ (number holder). The Social
Security Administration (SSA or agency) initially denied N~’s application for student
benefits using the criteria from a prior legal opinion, which stated that Oklahoma
law requires a minimum of six hours of school per day. See Program Operations Manual (POMS) PR 08005.040.A. PR 05-247, Oklahoma State Law Requirements for Home Schooling (NH D.O~, SSN~,
A H~, Student) (OGC Legal Opinion No. 05-1735) – REPLY (Sept. 23, 2005). N~ requested
reconsideration, arguing that the six-hour requirement is for public schools in Oklahoma,
not homeschools. If a homeschool is not by definition a public school, you asked if
the same six-hour requirement applies to homeschools. If the six-hour requirement
does not apply to homeschools and N~’s four-hour instruction is sufficient to meet
the state law requirement, you asked whether OGC Legal Opinion No. 05-1735, published
to the POMS at PR 08005.040(A), is still valid or should be archived.
We believe that N~’s homeschooling of a maximum of four hours a day, totaling 704
hours for the school year, is insufficient for him to be a full-time student under
Oklahoma law, which requires the homeschool program as an “‘other means of education’
to be provided for the full term the [public] schools of the district are in session.”
Okla. Stat. Ann. tit. 70, § 10-105. Although you did not ask this question, we also
believe that the evidence indicates that N~ does not meet the full-time attendance
requirements under federal law. See 20 C.F.R. § 404.367(c). We conclude that N~ is not entitled to child’s benefits after
age eighteen on the number holder’s account because he does not meet the full-time
attendance requirements under state or federal law. In addition, given amendments
to Oklahoma’s laws regarding the full term of the school year, OGC Legal Opinion No.
05-1735 should be archived and replaced with this opinion, which clarifies and further
explains the Oklahoma compulsory attendance requirements based upon current law. See POMS PR 08005.040(A).
As we understand the facts, in November 2012, N~ began receiving child’s benefits
on the number holder’s account. When N~ attained age eighteen in April 2016, the agency
terminated his child’s benefits. N~ resides in G~, Oklahoma.
On February 7, 2016, N~ completed Form SSA-1372-BK page 2, Student’s Statement Regarding
School Attendance, where he represented that he attended homeschool twenty hours per
week during the 2015-2016 school year, from September 2015 through July 2016. He reported that he expected to graduate in May 2017. N~’s mother, the number holder,
signed and dated Form SSA-1372-BK page 3, Certification by School Official, certifying
that the information N~ provided was “correct according to the school’s records.”
The number holder confirmed that the school’s course of study was at least thirteen
weeks in duration and that the school operates on a yearly basis. See POMS RS 00205.275(F) (procedure to document the homeschool decision, which includes a student giving
Form SSA-1372-BK to the homeschool parent/teacher for certification).
On March 30, 2016, the number holder described N~’s homeschooling in a letter to the
agency, stating that N~’s homeschool days were “four or more hours in length and we
have never taken summer break, spring break, fall break, or Christmas breaks.” She
explained that the homeschooling was year-round because N~’s ability to get back on
task after taking breaks had proven too difficult. On April 13, 2016, the number holder
clarified to the agency that N~’s homeschooling consisted of five days per week and
a maximum of four hours each day.
Attendance logs provided to the agency for the 2015-2016 school year differ from the
above statements regarding N~’s homeschool attendance. An attendance record dated
July 25, 2016 and completed by the number holder indicated that during the 2015-2016
school year, N~ took breaks of four consecutive days in September, five consecutive
days in early November, a winter break from December 28 through January 1, and a two-week
break at the beginning of August. While this attendance log shows that N~ had a total
of 242 days of instruction from August 2015 to August 2016, it also shows that there
were at least eight weeks of less than twenty hours of instruction. In addition, the
attendance log shows that N~’s total number of hours for the 2015-2016 school year
was at most 968 hours (242 days of four hours of instruction per day).
As for the 2016-2017 school year, on August 11, 2016, N~ completed a second Form SSA-1372-BK
page 2, Student’s Statement Regarding School Attendance, where he represented that
he attended homeschool twenty hours per week during the 2016-2017 school year, from
August 17, 2016 through May 23, 2017.
However, a July 25, 2016 attendance record, which appears to indicate the number holder’s
attendance plan for the 2016-2017 school year, includes at least nine weeks of less
than twenty hours of instruction between August 15, 2016, and May 31, 2017, and allows
for a winter break in December 2016 and a spring break in March 2017. While this attendance
log shows that N~ would have a total of between 175-176 days of instruction from August
2016 to May 2017, it also shows at least twelve weeks during which he would have less than twenty hours
of instruction. In addition, the attendance log shows that N~’s total number of homeschool
hours would be at most 704 (176 days of four hours of instruction per day).
Entitlement to Child’s Insurance Benefits After Age 18 for Full-Time Students
Section 202(d)(1)(B) of the Social Security Act (Act) provides for the payment of
child’s benefits to certain applicants over the age of eighteen, who are full-time
elementary or secondary school students. See 42 U.S.C. § 402(d)(1)(B), (6)(A)(i), (7)(A); 20 C.F.R. §§ 404.350(a)(5), 404.351(a),
404.367. SSA’s POMS refers to these benefits as student benefits. See POMS RS 00205.001. The agency considers a claimant in a homeschool to be a “full-time elementary or
secondary school student” if:
(1) the student attends a school that provides elementary or secondary education as
determined under the law of the state in which the school is located, which can be
a homeschool that complies with state law;
(2) the student is in full-time attendance in a day or evening non-correspondence
course of at least thirteen weeks duration and carries a subject load considered full-time
for day students under standards and practices set by the state in which the student
(3) the student attends school at least twenty hours per week (subject to exceptions);
(4) the student is not being paid while attending the school by an employer that required
or requested that the student attend the school;
(5) the student is in grade 12 or below;
(6) the student is not subject to provisions relevant to nonpayment of benefits to
See 20 C.F.R. § 404.367.
The agency’s POMS further explains these regulations with regard to homeschools and
states that student benefits are payable to a student in a homeschool program if:
(1) the student meets the federal standards for full-time attendance; (2) the law
of the state in which the home school is located recognizes home school as an educational
institution; (3) the home school the student attends meets the requirements of the
state where he resides; and (4) the student meets all other requirements for benefits.
POMS RS 00205.275.
Thus, the agency looks to state law, including state law full-time attendance requirements,
to determine whether a student’s homeschool renders him eligible for student benefits.
See 42 U.S.C. § 402(d)(7)(C)(i); 20 C.F.R. § 404.367(a)(1), (b). Here, Oklahoma law applies.
You asked whether N~’s homeschooling complies with Oklahoma’s law, but we also address
whether he meets the federal standards for full-time attendance as the evidence indicates
that he may not. See 20 C.F.R. § 404.367(a)(1), (b), (c); see also POMS RS 00205.300(A) (a student is in full-time attendance if he meets both state and federal standards
for full-time attendance).
Whether N~’s Homeschooling Complies with Oklahoma Law for Full-Time Attendance
We first address whether N~’s homeschool attendance of four hours per day is in accordance
with Oklahoma law. Oklahoma law has not changed with regard to homeschooling since
we issued an opinion in 2005; however, as we address below, since 2005, Oklahoma law
has been amended with regard to the full term school year definition for public schools. See POMS PR 08005.040(A).
As indicated in our previous opinion, while Oklahoma law allows for homeschooling,
our research has found little in the way of State law requirements or guidance regarding
homeschooling in Oklahoma. There is no statutory definition of a homeschool and homeschooling in Oklahoma is
largely unregulated. However, the Oklahoma Constitution guarantees the right to an
education at home: “The legislature shall establish and maintain a system of free
public schools wherein all the children of the State may be educated.” Okla Const. art. XIII, § 1 (emphasis added). The constitution also states, “The Legislature shall
provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all the children in the State . . . .” Id. § 4 (emphasis added). “It is significant that imperative words, words of mandatory
duty, are used in prescribing the state’s duty, but only permissive words are used
with respect to attendance at public schools. Education may be furnished without attendance
at any school, public or private.” Consol. Sch. Dist. No. 12 v. Union Graded Sch. Dist. No. 3, 94 P.2d 549, 551 (Okla. 1939); see also Sheppard v. State, 306 P.2d 346, 353, 356 (Okla. Crim. App. 1957) (citing Consol. Sch. Dist. No. 12, 94 P.2d at 551) (the requirement to attend public schools is permissive as long
as other means of education are provided and such other means of education are adequate).
Thus, Oklahoma law allows for home schooling as a means to satisfy the Oklahoma Constitution’s
compulsory attendance requirement. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275(B) (the law of the state in which the homeschool is located recognizes homeschool
as an educational institution, which the POMS RS 00205.200 defines as a school that provides elementary or secondary education). As noted, however,
our research has found little in the way of State law requirements or guidance regarding
Oklahoma compulsory attendance law requires that homeschooling be “for the full term
the schools of the district are in session.” Okla. Stat. Ann. tit. 70, § 10-105. We
consider what is meant by this “full term” requirement. The State statute implementing
compulsory school attendance prohibits a parent or guardian from neglecting or refusing
to compel a child to attend a public, private, or other school “unless other means
of education are provided for the full term the schools of the district are in session
or the child is excused as provided in this section.” Okla. Stat. Ann. tit. 70, § 10-105.
The statute defines public schools as “all free schools supported by public taxation
. . . .” Id. § 1-106. Because public taxation does not support homeschools, homeschools are not
public schools; rather, a homeschool is an “other means of education.” See Swanson v. Guthrie Indep. Sch. Dist., No. I-1, 942 F.Supp. 511, 514-515 (W.D. Okla. 1996) (citing Wright v. State, 209 P. 179 (Okla. Crim. App. 1922), aff’d, 135 F.3d 694 (10th Cir. 1998)) (noting
that the child’s parents “have a state constitutional right to home school their daughter”
and that “the Oklahoma courts have clearly found that home schooling satisfies the
‘other means of education’ requirement,” but also noting that such “other means of
education” must be equivalent to public schools). The plain language of the compulsory
attendance law expressly requires that homeschools, as other means of education, must
be “provided for the full term the [public] schools of the district are in session.”
Okla. Stat. Ann. tit. 70, § 10-105. Thus, per the plain language of the compulsory
attendance statute, we must look to Oklahoma law defining the full term for a public
school to determine the full term for a homeschool. See State v. Young, 989 P.2d 949, 955 (Okla. Crim. App. 1999) (“Statutes are to be construed to determine
the intent of the Legislature, reconciling provisions, rendering them consistent and
giving intelligent effect to each,” and further, “[i]t is also well established that
statutes are to be construed according to the plain and ordinary meaning of their
language.”). Accordingly, because the plain language of the law requires that homeschools
be provided for the full term session as public schools, we now turn to state law
defining the full term for public schools.
Oklahoma law provides that a full school year for all public schools in Oklahoma consists
of six hours of instruction per day for 180 days, or not less than a total of 1,080
hours each school year (with 30 total hours allowed for each school year for teacher
professional meetings). Okla. Stat. Ann. tit. 70, §§ 1-109(A), (B) (providing that
a school year shall be in session for not less than 180 days, or for not less than
1,080 hours each school year, but allowing for 30 hours each school year for professional
development), 1-111(A) (providing that a “school day shall consist of not less than
six (6) hours devoted to school activities.”). Thus, the length of the school day
may be adjusted as long as the total number of hours is at least 1,080 hours each
school year. Id. §§ 1-109(A)(2), 1-111(A); see also id. § 4516 (pertaining to the school calendar and stating that “schools and classes shall
be conducted for a total of no less than one hundred eighty (180) days or no less
than one thousand eighty (1,080) hours during the academic year.”).
As stated, the compulsory attendance law states that the “other means of education”
must be “provided for the full term the schools of the district are in session.” Okla.
Stat. Ann. tit. 70, § 10-105. The law says that the public schools must be in session
either 180 days for six hours per day, or at least 1,080 hours a school year. Thus,
we believe a reasonable interpretation of the constitutional and statutory provisions
regarding compulsory school attendance for the “full term the schools of the district
are in session” is that homeschooling must be conducted for 180 days of six hours
of instruction, or for not less than a total of 1,080 hours, as this is the “full
term” that the public schools must be in session. See id. § 18-110(B) (“Any school district that does not maintain school for a full term pursuant to Section 1-109 of this title shall have its State Aid reduced . . . unless it has received written
approval to maintain school for less than a full term from the State Board of Education.”) (emphasis added).
Oklahoma courts resist interpreting the law as requiring homeschooling to meet the
exact requirements of public schools, but indicate that they must be “equivalent.”
See Swanson, 942 F.Supp. at 514-515 (citing Wright v. State, 209 P. 179 (Okla. Crim. App. 1922)). For example, in interpreting a prior version
of the compulsory attendance statute, the Oklahoma Criminal Court of Appeals concluded
that so long as the child’s education was not neglected, under the Constitution and
laws of Oklahoma, parents have a right to supervise the education of their children
if it is done in “a proficient and fitting manner.” See Wright, 209 P. at 180 (finding erroneous jury instructions that “a school month shall consist
of four weeks of five days each, of six hours per day.”). The Wright court emphasized that whether education is supplied in good faith and whether it is
equivalent to that afforded by the State are questions of fact. Id. at 180-81. However, the statute Wright interpreted required that “other means of education” be provided for two-thirds of
the term of public schools, rather than the full term that the current statute requires.
Id. at 179.
In 1973, the Oklahoma Attorney General’s office stated that the test in Oklahoma for
determining whether a private school or “home instruction” meets the requirements
of the state’s compulsory school attendance statute is that “the instruction must
be supplied in good faith and equivalent to that afforded by the State.” See 73 Okla. Op. Att’y Gen. 129 (Okla. A.G. 1973) (citing Wright, 209 P. at 180-81). Neither the Attorney General’s opinion nor Oklahoma case law
have defined the term “equivalent” in the context of providing home instruction.
Therefore, we believe it is reasonable to interpret the plain language of the compulsory
attendance law requirement that the homeschool be “provided for the full term the
[public] schools of the district are in session” and to apply the plain meaning of
“equivalent” to conclude that homeschooling must be provided for the same 180 days
for six hours per day, or 1,080 total hours for the full term that is required of
public schools. See Swanson v. Guthrie Indep. Sch. Dist., No. I-1, 135 F.3d 694, 699 (10th Cir. 1998) (noting that “parents simply do not have a constitutional
right to control each and every aspect of their children’s education and oust the
state’s authority over that subject.”).
Here, N~’s attendance projection for the 2016-2017 school year was for a maximum of
four hours a day for 175-176 days. Because the daily hours of instruction were shortened
from 6 hours to 4 hours, N~ would need to show 1,080 total hours of instruction to
establish that he attended homeschool for the full 2016-2017 term. Having shown a
projected attendance of a maximum of four hours a day for 175-176 days, he has indicated
no more than 704 hours of instruction and has thus failed to demonstrate that he attended
his homeschool for the full term the public schools of the district are required to
be in session. Therefore, N~ does not meet the attendance requirements of Oklahoma
Whether N~ Meets the Federal Standards for Full-Time Attendance
We also address whether N~ meets the federal standards for full-time attendance. The
regulations specify that “[t]o be considered in full-time attendance, your scheduled
attendance must be at the rate of at least 20 hours per week.” 20 C.F.R. § 404.367(c). As detailed in the background section, N~ provided the agency
with conflicting evidence on this issue. The attendance logs indicate that N~ does
not meet the twenty-hour per week regulatory attendance requirement, despite the number
holder’s statements to the agency. See 20 C.F.R. § 404.367(c); POMS RS 00205.300, RS 00205.310. Therefore, we are unable to conclude that N~ meets the federal full-time attendance
In conclusion, based on the specific facts of this case, we find that N~’s homeschooling
of four hours of instruction per day, totaling 704 total hours for the 2016-2017 school
term, is insufficient to meet the attendance requirements for a full-time student
under both agency regulations and State law. This is not to say, however, that four
hours per day is inherently insufficient, because there could be a situation where
a student would attend homeschool four hours per day, more than twenty hours per week,
and still attain the total required hours of 1,080 for the school term. Under the
facts presented here, however, N~ has not established that he meets the attendance
requirements under state or federal law.
In light of amendments to Oklahoma law, we recommend replacing our 2005 opinion with
this opinion, which clarifies and expands upon our prior opinion by discussing Oklahoma’s
full term requirement and the alternative attendance requirement of 1,080 total term
hours. See POMS PR 08005.040(A).
Traci B. Davis
Acting Regional Chief Counsel
By: Jamie L. Barnhill
Assistant Regional Counsel