This is in response to your January 13, 2004, request for an opinion as to whether
Benjamin a home-schooled student, is entitled to student benefits. The specific issues
to be addressed are: (1) whether Benjamin's home schooling program meets the requirements
under Virginia law (2) whether Benjamin's home schooling program meets Federal standards
(3) whether Benjamin is in full-time attendance under Federal law; and (4) whether
student benefits should be paid.
We have reviewed the information that you provided and have researched the relevant
provisions of Virginia and Federal law regarding home schooling and full-time attendance.
Based on our research, we have concluded that while Benjamin satisfies Federal standards
for full-time attendance, Benjamin has not provided evidence that his home schooling
program satisfies Virginia law. Accordingly, he is not entitled to student benefits
at this time.
The following is a summary of the relevant facts in this matter. Benjamin was born
on October 25, 1985, and is eighteen years old. Benjamin and his family reside in
On September 18, 2003, Joseph , Assistant Superintendent for Instruction, notified
Benjamin's father that he had received his application to provide home instruction
for Benjamin. Superintendent Joseph stated that the Wythe County School Board had
approved the application. However, Superintendent Joseph notified Benjamin's father
that, under the law, his remaining responsibility was to arrange for annual testing
and provide evidence of a composite score at or above the fourth stanine on a battery
of achievement tests which have been approved by the Virginia Board of Education,
per the Code of Virginia §22.1-254.1. The Code of Virginia §22.1-254.1(C) indicates
that the scores must be provided by August 1st of the following school year. Alternatively,
a parent can provide an evaluation or assessment which, in the judgment of the division
superintendent, indicates that the child is achieving an adequate level of educational
growth. Code of Virginia §22.1-254.1(C )(ii).
Rollie , Assistant Superintendent of Administration at Wythe County School Board completed
an SSA-1372, Student Statement Regarding School Attendance, on September 23, 2003.
Superintendent Rollie’s certified that Benjamin's school year began on August 25,
2003, and would end on August 31, 2004. He also certified that Benjamin was scheduled
to attend instruction thirty hours per week and that the course of study was at least
thirteen weeks in duration. Benjamin's anticipated graduation date was August 2, 2004.
On another SSA-1372 Benjamin's father indicated that he was Benjamin's teacher.
The SSA-1372 certified by Superintendent Rollie’s reflects that Benjamin was educated
at home the previous year. As evidence of educational progress, Benjamin's father
submitted SAT scores taken in the previous school year, May 2003, that indicated a
verbal score of 490 and a math score of 450. The verbal scores were in the 43rd percentile
of college bound seniors nationally and 41st percentile statewide. The math scores
were in the 28th percentile nationally and the 30th percentile statewide.
You have asked for an opinion on whether Benjamin's home schooling program meets the
requirements of Virginia law and Federal standards and therefore entitles him to student
benefits. Under the Commissioner's regulations, an individual who has attained age
eighteen may be eligible for child's benefits if he is a full-time student. 42 U.S.C.
§ 402(d)(1), (7); 20 C.F.R. §§ 404.350(a)(5), 404.367 (2003); Program Operations Manual
System (POMS) RS 00205.001(A). A home-schooled student is accorded full-time student status where four specific
criteria are met. Those criteria are as follows:
the student meets Federal standards for full-time attendance;
the law of the state in which the home school is located recognizes home schooling
as a legitimate educational institution;
the home school which the student attends meets the requirements of the law of the
state in which the home school is located; and
the student meets all other requirements for benefits.
20 C.F.R. § 404.367; POMS RS 00205.275(B). The student's home school instructor is responsible for submitting evidence that
state requirements for home schooling are met. POMS RS 00205.275(C).
In determining whether Brandon's home schooling entitles him to student benefits,
the first inquiry is whether he meets federal standards for full-time attendance.
To meet federal standards for full-time attendance, the student must be:
scheduled for secondary level school attendance at the rate of at least twenty hours
enrolled in a course that is not a correspondence course; and
enrolled in a course of study that is at least thirteen weeks in duration.
20 C.F.R. § 404.367; POMS RS 00205.300(C).
According to the SSA-1372 submitted by Brandon's mother, Brandon is scheduled for
twenty hours of education per week, fifty-two weeks per year. In addition, Brandon
is being home schooled and is not enrolled in a correspondence course. Accordingly,
Brandon meets federal standards for full-time attendance.
The second inquiry is whether the law of the state in which the home school is located
recognizes home schooling as a legitimate educational institution. Brandon and his
family are domiciled in Virginia, which recognizes home schooling as a legitimate
form of elementary or secondary education. See Va. Code Ann. § 22.1-254.1 (stating that “instruction of children by their parents is an acceptable alternative form of education
under the policy of the Commonwealth of Virginia”). Accordingly, Brandon has met the second requirement for obtaining student benefits.
The third inquiry is whether the home school Brandon attends satisfies the requirements
of Virginia law. Based on the information that you have provided to us, it does not.
While home schooling is a permissible form of education in Virginia, any parent who
elects to provide home instruction in lieu of school attendance must comply with certain
requirements of the Virginia Code. Va. Code Ann. §§ 22.1-254, 22.1-254.1, 22.1-271.4.
Parents may home school their child in Virginia if they obtain a religious exemption
pursuant to Va. Code Ann. § 22.1-254(B) or if they meet the following requirements:
(1) The parent/teacher must provide evidence of one of the following: (i) that he
holds a baccalaureate degree from an accredited higher education institution; (ii)
that he has qualifications prescribed by the Board of Education; (iii) that he enrolled
the student in a correspondence course approved by the Superintendent of Public Instruction;
or (iv) that he provides a program of study or curriculum which satisfies Board of
Education standards, and provides evidence that he is able to provide an adequate
education for the child. Va. Code Ann. § 22.1-254.1(A).
(2) The parent(s) must annually notify the division superintendent in August of their
intention to home school their child and provide a description of the curriculum to
be followed. Va. Code Ann. § 22.1-254.1(B).
(3) The parent(s) must provide the school board with the results of achievement tests
or submit an evaluation or assessment, which, in the division superintendent's judgment,
indicates that the child is achieving an adequate level of educational growth and
progress. Va. Code Ann. § 22.1-254.1(C).
(4) The parent(s) must comply with immunization requirements as if the child was enrolled
in and attending school unless they object on the grounds that immunization conflicts
with their religious beliefs. Va. Code Ann. §§ 22.1-271.4, 32.1-46(D)(1).
Based on the information you have provided to us, it is not clear whether Benjamin's
father has complied with all of Virginia's requirements for home schooling. Because
there is no evidence Benjamin's father has obtained a religious exemption pursuant
to Va. Code Ann. § 22.1-254(B), he must meet the criteria set forth in Va. Code Ann.
§§ 22.1-254.1, 22.1-271.4. Benjamin's father has complied with the first requirement
because he has submitted copies of his bachelor of science degree in business administration,
as well as his master's degree in social work. Benjamin's father evidently satisfied
the second requirement because his application was approved by the Wythe County School
Board as indicated in the September 18, 2003, correspondence. In addition, the file
contains the SSA-1372, the Student's Statement Regarding School Attendance, in August
2003, which was signed by Rollie’s, Assistant Superintendent of Administration at
Wythe County School Board, as well as a list of courses.
With regard to the third requirement, however, the correspondence from the Assistant
Superintendent, Joseph, indicates that Benjamin was required to score a composite
score at or above the fourth stanine on a battery of achievement tests that had been
approved by the Virginia Board of Education, per the Code of Virginia §22.1-254.1.
The correspondence further indicated that Benjamin's father would need to make his
own arrangements for the testing. The Code of Virginia §22.1-254.1(C) provides that
the scores must be submitted by August 1st of the following school year. Therefore,
we recognize that Benjamin's father need not submit this evidence until August 1,
The evidence provided does not indicate that Benjamin has submitted the evidence of
acceptable progress for the current school year. Instead, the file contains only SAT
scores taken in the previous school year, May 2003, which indicated a verbal score
of 490 and a math score of 450. The verbal scores were in the 41st percentile of college
bound seniors statewide and the 43rd percentile nationally. The math scores were in
the 30th percentile statewide and the 28th percentile nationally. Although the SSA-1372
certified by Superintendent Rollie’s reflects that Benjamin was educated at home the
previous year, the file does not contain any evidence to indicate that these SAT scores
were accepted, in lieu of the required Stanford Form 9 Standardized Achievement Test,
as evidence of educational progress for the previous school year. Submission of any
test other than the Stanford Form 9 is subject to the superintendent's judgment. Therefore,
it is unclear whether Benjamin's father satisfied this state requirement for the current
school year and whether the documentation submitted for the previous school year was
We recommend further development of the record because the file does not reflect that
Benjamin has submitted evidence of adequate progress for the current school year.
To satisfy this state requirement, Benjamin's father may submit a letter from the
superintendent indicating that Benjamin has shown adequate levels of academic progress
in the current school year. Because the documentation for the current school year
is not required to be submitted until August 1, 2004, we believe a statement from
the superintendent indicating that the documentation Benjamin provided from the previous
school year was determined to be evidence of adequate progress would be acceptable,
in lieu of scores from the current school year.
Finally, there is no evidence that Benjamin's father has either complied with Virginia's
immunization statute or objected to immunization on the basis of religion. However,
the Code of Virginia does not require parents to supply this information unless requested.
Va. Code Ann. §§ 22.1-254.1, 22.1-271.4. Nevertheless, because Benjamin's father's
application was approved for the current school year, the record supports a finding
that this requirement was satisfied.
Since it is unclear whether Benjamin has satisfied the requirements under VA law for
home schooling, we recommend that further information be obtained to determine whether
Benjamin is entitled to student benefits.
James A. Winn
Regional Chief Counsel
By: Brian C. O'D~
Assistant Regional Counsel