TN 12 (05-07)

PR 08005.054 West Virginia

A. PR 07-130 Reply to Your Request for a Legal Opinion as to whether Kellen R. W~'s (SSN ~) Home Schooling Meets the Requirements of West Virginia Law and Federal Law and, Therefore, Qualifies Her for Payment of Student's Benefits

DATE: May 7, 2007

1. SYLLABUS

West Virginia recognizes home schooling and provides two home school options.

Option 1

To meet the requirements of WV law under this option, the home school situation must meet the following requirements:

The student receives instruction at home or at another place approved by the county board, and he/she receives instruction for a time equal to the county's school term;

The person who provides the instruction is qualified, in the judgment of the county superintendent and school board, to give instruction in subjects required to be taught in the state's public elementary schools; and

The superintendent may periodically require the instructor to provide records about the student's attendance, instructions, and progress between the entrance age and 16 years.

Option 2

To meet the requirements of WV law under this option, the home school situation must meet the following requirements:

An individual may provide home school instruction for a child after filing with the local school board a notice that states the person's intention to provide home instruction. The notice must include the child's name, address, age, and grade level; an outline of the plan of instruction for the year; and evidence of the instructor's high school diploma or equivalent;

The home school instructor(s) must have a high school diploma or equivalent; and

The home school instructor must outline a plan of instruction for the upcoming school year.

The home school parent/teacher must submit evidence of compliance with one of the home school options provided under WV law. The student must meet Federal standards for full-time attendance and all other requirements for the payment of benefits.

2. OPINION

QUESTION PRESENTED

Whether Kellen R. W~ (hereinafter, the Claimant), a home-schooled student in West Virginia, qualifies as a full-time student entitled to receive student's benefits.

SUMMARY

We have reviewed the information that you provided regarding the Claimant's home schooling and have researched the relevant provisions of West Virginia and federal law. For your convenience, we have also cited relevant provisions of the Program Operations Manual System (POMS) derived from the federal law. Based on the evidence presented, the Claimant meets all federal and state law requirements to qualify as a full time student entitled to receive student's benefits.

BACKGROUND

Your memorandum of March 28, 2007 states that the claimant was born on March 2, 1989, and was, therefore, eighteen years old on March 2, 2007. Claimant's Statement Regarding School Attendance (SSA-1372) completed on January 9, 2007, by the Claimant and Luwanda B~, DRW, Assistant Principal of A Beka Academy, indicates that the Claimant attends class 30 hours a week, and that the present school year began on September 1, 2006, and will end on June 30, 2007. You also provided a letter from Dawn A~, the Attendance Director for the Mason County Board of Education dated March 12, 2007, stating that Donna W~, the Claimant's mother, (hereinafter "Donna"), "met the requirements of W.Va. Code 18-8-1(c) to provide home schooling to Claimant for the year 2006-2007." The record also contains a "letter of intent" dated August 1, 2006 from Donna to Ms. A~ stating her intention to provide home schooling to the Claimant during the 2006-2007 school year, and a copy of Donna's Bachelor of Business Administration degree from Marshall University. Additionally, the record contains a Professional Teaching Certificate for Dorinda L. S~ from the State of West Virginia, Department of Education. Ms. S~ is a Testing Coordinator for the Mason County Board of Education.

DISCUSSION

1. The Applicable Federal Regulations and POMS Provisions

The federal regulations at 20 C.F.R. § 404.352 (2006) provide that entitlement to child's benefits ends in the month before the month that the child turns age 18, if the child is not disabled or the child is not a full-time student. That regulation further provides that a child may receive student's benefits beyond the age of 18 until the month before turning age19 provided the child is disabled, or is a qualified full-time student who is not disabled. An individual may be entitled to benefits if he or she is a full-time elementary or secondary student and attends a school which provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located. 20 C.F.R. § 404.367. He or she is also entitled to benefits if instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which the individual resides. 20 C.F.R. § 404.367(a)(1).

Home schooling is subject to several conditions. The student must meet the federal standards for full-time attendance; the law of the state in which the home school is located must recognize home schooling as an educational institution; the home school the student attends must meet the requirements of the state law in which the home school is located; and the student must meet all the other requirements for benefits. 20 C.F.R. ' 404.367; POMS RS 00205.275(B). In order to satisfy the federal standards for full-time attendance a student must be enrolled in a non-correspondence course of at least 13 weeks duration for at least 20 hours per week. 20 C.F.R. ' 404.367(b)-(c); POMS RS 00205.300(C). Here, the claimant is home schooled in West Virginia.

2. West Virginia Law

Every child between the ages of six and sixteen residing in West Virginia is subject to the compulsory school attendance law. W. Va. Code § 18-8-1(a). However, a child is exempt from the compulsory school attendance requirement if the child is home schooled. W. Va. Code § 18-8-1(c). West Virginia has created two home school options; in shorthand, these could be called "approval" and "notice." W. Va. Code § 18-8-1(c). Under the "approval" option, a child is exempt from the compulsory school attendance requirement if he or she receives instruction in the home of the child or children or at some other place approved by the county board and for a time equal to the school term of the county. W. Va. Code § 18-8-1(c)(1). The West Virginia Code provides that the instruction shall be conducted by a person or persons who, in the judgment of the county superintendent and county board, are qualified to give instruction in subjects required to be taught in public elementary schools in the state. W. Va. Code § 18-8-1(c)(1). The superintendent may require the instructor to provide information and records, from time to time, with respect to attendance, instruction and progress of pupils between the entrance age and 16 years. W. Va. Code §18-8-1(c)(1).

There are three basic preliminary requirements under the "notice" option. First, an individual (or individuals) may provide home school instruction for a child after filing a notice with the local school board. The notice must state that the individual intends to provide home instruction. It must include the child's name, address, age, and grade level, an outline of the plan of instruction for the year, and evidence of the instructor's high school diploma or equivalent. Second, the person or persons providing home instruction must have a high school diploma or equivalent. Third, the person or persons providing home instruction must outline a plan of instruction for the ensuing school year. W.Va. Code § 18-8-1(c)(2).

3. The Claimant's Home Schooling Meets the Requirements of West Virginia Law

Based on the evidence presented, the Claimant satisfies the standards of West Virginia law for home schooling under the "notice" provision of W. Va. Code § 18-8-1(c)(2). Donna provided a "letter of intent" dated August 1, 2006 to Ms. A~, an official of the Mason County Board of Education. As required, the letter included the child's name, address, age, and grade level, and an outline of the plan of instruction for the year. W.Va. Code § 18-8-1(c)(2). Donna noted that her credentials were on file with the Mason County School Board. West Virginia requires that the home school instructors have a high school diploma or equivalent, and Donna has a Bachelor of Business Administration degree from Marshall University. W.Va. Code § 18-8-1(c)(2). Though not required under W.Va. Code § 18-8-1(c)(2), Donna also supplied a letter from the Mason County Board of Education stating that she had met the requirements of the West Virginia Code to provide home schooling for the current school year.

4. The Claimant Satisfies the Federal Standards for Full-Time Attendance

In order to be considered a full-time elementary or secondary student, an individual must satisfy all of the conditions described in the federal regulation at 20 C.F.R. § 404.367(a)-(c). Paragraph (a) of the regulation defines "full-time student" as one who is attending a school program that provides elementary or secondary education as determined under the law of the state in which the school is located. It provides that an individual may satisfy the definition of full-time student if she participates in instruction provided at home in accordance with the home school law of the state in which the individual resides. 20 C.F.R. § 404.367(a)(1). Here, Claimant participates in home-schooling in accordance with West Virginia law.

Paragraph (b) provides that the course must be a non-correspondence course of at least 13 weeks duration; the individual must carry a subject load that is considered full-time for day students under the institution's standards and practices. If the individual is in a home-school program, the individual must carry a subject load that is considered full-time for day students under the standards and practices set by the state. 20 C.F.R. § 404.367(b). According to the information provided, the Claimant's school year began September 1, 2006 and will end June 30, 2007, a period well-exceeding 13 weeks in duration. Her courses include English 12, Economics, American Government, French, Bible, Life Applications, and Physical Education. Paragraph (c) of the regulation provides that to be in full-time attendance, an individual's scheduled attendance must be at the rate of at least 20 hours per week. 20 C.F.R. § 404.367(c). The information provided on Form SSA-1372 indicates that Claimant attends school for 30 hours per week, or six hours per day.

Finally, the Claimant satisfies the requirement of being enrolled in a course that is not a correspondence course. A Beka Academy's Program shares some characteristics of a correspondence school, but does not fit squarely into the definition of a correspondence school. POMS RS 00205.330 defines a correspondence school as "a school that teaches by mailing lessons and exercises to the Claimant. Upon completion, the Claimant returns the exercises to the school for grading." Claimant's lessons are provided on DVD, textbooks, and workbooks. Course work is sent every nine weeks to A Beka Academy and they issue a report card. In this way, A Beka's program is like a correspondence school.

However, A Beka's Program differs in important ways from a correspondence school. Materials from A Beka Academy DVD Program I provide that parents must meet all applicable local and state home school requirements. Donna coordinates the home schooling and she has a very active role in the educative process. She has a Bachelor of Business Administration degree from Marshall University bolstering her statement that she coordinates Claimant's education. A Beka supplies a school calendar with a daily schedule. Donna is responsible for ensuring that the Claimant follows the schedule. Claimant attends school for 30 hours per week, or six hours per day. Donna is also responsible for having the Claimant follow the plan of study and watch all DVD lessons. She provides parental supervision for all work. She grades quizzes and tests and checks compositions. Donna must contact the local school district regarding compliance with the academic standards, health/immunization records, and attendance requirements of the state; informing the local school district that her child will be enrolled in a home school environment; and sending proof of previous work completed for enrollment. Donna must send the required graded work to A Beka Academy for evaluation in accordance with the provided academic calendar and ensure that her child has met the state's requirements for achievement tests. In addition, certified teachers are available through the e-mail or the telephone. This relationship among the parent, student, and A Beka Academy appears to be far more interactive than the usual correspondence course.

CONCLUSION

Based on the evidence provided, the Claimant appears to meet all federal and state requirements to qualify as a full-time student based on her home schooling.

Michael M~
Regional Chief Counsel
By:___________________
Victor J. P~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508005054
PR 08005.054 - West Virginia - 05/07/2008
Batch run: 01/27/2009
Rev:05/07/2008