PR 08005.056 Wyoming

A. PR 00-082 Student Benefits Based on Home Schooling and Private Non-accredited Schooling in Wyoming

DATE: February 3, 1999

1. SYLLABUS

The state of Wyoming recognizes home schooling under its compulsory attendance laws.

State law defines home-based education as educational instruction provided by the parent or legal guardian (or a person designated by the parent or legal guardian) to the student. The home school must meet the requirements of a basic academic educational program; and the person administering the home school must submit a curriculum to the local board of trustees each year to show the home school meets the State law.

Wyoming permits and recognizes a home school educational program that uses a curriculum supplied by a non-accredited and/or non-licensed private (correspondence) school if the curriculum is submitted to and approved by the local school board.

The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

2. OPINION

You have requested legal opinions on two issues. First, you requested a legal opinion regarding whether a home school and a "non-accredited" school in Wyoming meet the requirements for section 202(d)(7)(C)(i) of the Social Security Act ("the Act"), 42 U.S.C., for the receipt of Social Security student benefits under section 202(d)(1)(A)-(C), (E), (F). Second, you requested a legal opinion regarding whether Buckles S~ ("Mr. S~") (~) met the requirements for student benefits by his alleged participation in a home-based educational program.

For the reasons discussed below, we believe that a home school in Wyoming may meet the requirements for section 202(d)(7)(C)(i) of the Act. We further believe a "non-accredited" school in Wyoming may also meet the requirements of section 202(d)(7)(C)(i) of the Act. Under the specific facts of Mr. S~'s case, we do not believe that he met the requirements for student benefits as a participant in a home-based educational program permitted in Wyoming in 1995 and 1996.

Federal Law

"Every child of an individual . . . who dies a fully or currently insured individual, if such child has filed application for child's benefits, at the time of the application was unmarried, and . . . was a full-time elementary or secondary school student and had not attained the age of 19 . . . shall be entitled to a child's insurance benefit for each month beginning with . . . the first month in which such child meets the above-specified criteria . . . and ending with the month preceding the month in which such child attains the age of 18 (but only if he . . . is not a full-time elementary or secondary school student during any part of such month), or the first month during no part of which he is a full-time elementary or secondary school student, or the month in which he attains the age of 19." 42 U.S.C. §§ 202(d)(1)(A), (B), (C), (E) & (F)(i) & (ii) (emphasis added).

42 U.S.C. § 202(d)(7)(C)(i) provides that "[a]n 'elementary or secondary school' is a school which provides elementary or secondary education, respectively, as determined under the law of the State or the jurisdiction in which it is located." See also 20 C.F.R. § 404.367(a) (1998). Specifically with respect to home schools, implementing regulations specify that elementary or secondary education at home in accordance with the home school law of the State or other jurisdiction in which an individual resides qualifies as an elementary and/or a secondary school. See 20 C.F.R. § 404.367(a)(1) & (2) (1998).

The Social Security Act and Regulations mandate certain requirements before a child in a home-based educational program can qualify for student benefits as a full-time elementary or secondary school student: He must be instructed in elementary or secondary education at home in accordance with the home school law of the State in which he resides; he must be in full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration and carry a subject load which is considered full-time for day students under the standards and practices of the State in which he resides; his scheduled attendance must be at the rate of at least 20 hours per week; he must not be paid to attend school; he must be in grade 12 or below; and he must not be subject to the provisions of 20 C.F.R. § 404.468. See 42 U.S.C. § 202(d)(7)(A)-(C)(i); 20 C.F.R. §§ 404.367(a)-(f) (1998) (emphasis added).

Wyoming Law

Home School

With regard to the first federally required elements, Wyoming defines a home-based educational program as "a program of educational instruction provided to [the] child by the child's parent or legal guardian or by a person designated by the parent or legal guardian." Wyo. Stat. 1977 § 21-4-101(a)(iii) & (v). In Wyoming, if a child is subject to statutory compulsory attendance laws, a home-based educational program must meet the requirements of a basic academic educational program and the person administering the program must submit a curriculum to the local board of trustees each year showing that the program complies with the requirements of Wyo. Stat. 1977 § 21-4-102(b). See Wyo. Stat. 1977 § 21-4-102(b).

An individual not subject to Wyoming's statutory compulsory attendance laws is not mandated to follow the requirements of Wyo. Stat. 1977 § 21-4-102(b). However, as indicated above, the Act requires that, to be eligible for child's benefits, an individual must comply with the home school law of the state in which he resides. 20 C.F.R. § 404.367(a)(1). Further, should an individual chose to continue his education within, and have his education recognized by, the State of Wyoming, he must comport with Wyoming statutory mandates, including Wyo. Stat. 1977 § 21-4-102(b), regardless of his age or educational attainment. Therefore, an individual of any age who complies with both Wyoming and Federal laws, regulations and policy governing home-based educational programs will have met the requirements of section 202(d)(7)(C)(i) of the Act.

Non-accredited School

With respect to "non-accredited schools," while Wyoming State statutes do not specifically address accreditation of elementary or secondary schools, the Wyoming State Board of Education is charged with establishing minimum standards for all schools subject to licensing, including correspondence schools, and with ensuring that programs offered by public schools provide the opportunity to acquire sufficient knowledge and skills through evaluation and accreditation of school districts. See Wyo. Stat. 1977 §§ 21-2-304(a)(ii), 21-2-401(b). Further, Wyoming State Accreditation Standards (Department of Education, Cheyenne) define accreditation as a process by which each school district and each school within the district is assessed and is monitored by the State in order to identify strengths, plan and implement improvement, assure legal compliance and assure the public that children are learning in accordance with locally determined performance standards.

In the Park County School District #6 the local school district board regards home-based educational programs as non-accredited schools. See copy of Policy (Attachment No. 2). Nevertheless, if an individual complies with all State and Federal requirements concerning home-based educational programs, such a non-accredited school may meet section 202(d)(7)(C)(i) of the Act. Therefore, a "non-accredited" school in Wyoming may meet the requirements of section 202(d)(7)(C)(i) of the Act.

Further, Wyoming may permit and recognize a home-based educational program using a curriculum supplied by a non-accredited and/or non-licensed private (correspondence) school, as long as the curriculum is submitted to and approved by the local school board. See Wyo. Stat. 1977 § 21-4-102(b); copy of Policy (Attachment No. 2). Here again, such a home-based educational program may satisfy section 202(d)(7)(C)(i) of the Act for receipt of Social Security student benefits.

Facts

The facts of Mr. S~'s specific situation may be summarized as follows. In May 1992, Linda A. M~ ("Ms. M~"), Mr. S~'s mother, filed an application on his behalf for Child's Insurance Benefits Survivor Claim on the earnings record of Francis S~, who died fully insured on April 25, 1992. Mr. S~, born on November 5, 1977, is currently 21 years of age. He received benefits through September 1996, ending in the month before the month he attained 19 years of age. The Social Security Administration apparently revisited their decision and found Mr. S~ was not a full-time student, and thus ineligible for child's benefits after he attained age 18. Consequently, an overpayment of benefits in the amount of $12,387.00 from October 1995, the month preceding the month in which Mr. S~ attained the age of 18 (November 5, 1995), through September 1996, when his benefits were terminated remains in question. Mr. S~ and Ms. M~ maintain that he continued to be entitled to benefits after he attained age 18 because he was a full time student in a home-based educational program.

Throughout the relevant time period, October 1995 through September 1996, Mr. S~ resided in the Park County School District #6. In September 1995, when he was 17 years of age and while continuing to live in Cody Wyoming, Mr. S~ enrolled in the American School of Chicago, Illinois.

In October 1995, Ms. M~ reported that she had not filed an intent to home school with the State, the local Department of Education, or the local high school and that she did not actually take part in teaching Mr. S~. She did, however, maintain attendance records, monitor his hours, review his homework, and sent his tests to the American School.

In November 1996, Janet E. H~, Guidance Counselor with the American School, reported that Mr. S~ enrolled with the American School on September 14, 1995, to earn a general program high school diploma. She stated that the American School was a correspondence high school. She further reported that Mr. S~ was a full-time student in good standing at the senior level and had completed five and one half units of credit out of a required seven units of credit.

In May 1998, Ms. M~ reported that Mr. S~ attended home-schooling four hours per day in addition to evening discussions and review for a total of 20 to 25 hours per week. She also reported that the courses "taught" were Social Studies, U.S. History, World History, World Literature, Psychology, Geometry, Career Planning, and Automobile Mechanics; that Mr. S~ took tests furnished by the school about once a week which she checked and sent to the school; and that, inconsistent with her October 1995 report, she did not maintain attendance records but did supervise Mr. S~'s attendance.

Law

During the relevant period at issue, 1995 and 1996, an individual could "be eligible for child's insurance benefits if he was a full-time elementary or secondary school student." 20 C.F.R. § 404.367 (1996). An individual was a full-time elementary or secondary school student if:

(a) [he] attend[ed] a school which provide[d] elementary or secondary education . . . as determined under the law of the State or other jurisdiction in which it is located;

(b) [he was] in full-time attendance in a day or evening course of at least 13 weeks duration and . . . carried a subject load which [was] considered full-time for day students under the institution's standard's and practices. Additionally, [his] scheduled attendance must [have been] at the rate of at least 20 hours per week. . . ;

(c) [he was] not being paid while attending school . . .;

(d) [he was] in grade 12 or below; and

(e) [he was] not confined in a jail . . ..

20 C.F.R. § 404.367(a)-(e) (1996).

While the regulations in effect through 1996 did not specifically allow for a home-school educational program, as they do now, if Mr. S~'s alleged home-based educational program was a school which provided elementary or secondary education as determined under the law of the Wyoming; and if Mr. S~ was in full-time attendance in a day or evening course of at least 13 weeks duration, carried a subject load which was considered full-time for day students under the institution's standards and practices, had scheduled attendance at the rate of at least 20 hours per week, was not being paid while attending school, was in grade 12 or below, and was not confined in jail, such a program could have met the requirements of section 202(d)(7)(C)(i) of the Act for entitlement to child's insurance benefits. In fact, home-based educational programs were recognized by Wyoming as early as 1985, as a legitimate means of elementary and secondary education. See Wyo. Stat. 1977 §§ 24-4-101(a)(iii) & (v), & 102(b).

While Mr. S~ was beyond compulsory age, we believe he was required to comply with Wyoming statutory law regarding home-based educational programs. Based on the facts provided, neither Ms. M~ nor Mr. S~ submitted a copy of the American School curriculum to the local school district board for approval. Failure to submit the intended curriculum for a home-based educational program is prima facie evidence that the home-based educational program did not meet the requirements of Wyo. Stat. § 21-4-102(b). See Wyo. Stat. § 21-4-102(b). Thus, neither Ms. M~ nor Mr. S~ complied with Wyoming State requirements for a home-based educational program and Mr. S~ could not have been recognized as a full time student in a home-based educational program by Park County School District # 6 nor, consequently, by the State of Wyoming. As such, his alleged home-based educational program did not meet the threshold requirement of section 202(d)(7)(C)(i) of the Act or 20 C.F.R. § 404.367(a)-(f) (1996), and we believe you could conclude that he was not eligible for child's insurance benefits beyond his eighteenth birthday.

Since Mr. S~ was enrolled as a full-time student in a correspondence school (see Letter dated November 20, 1996, from the American School; see also Report of Contact dated November 7, 1996), and since he did not comply with state requirements for a home-based educational program, he justifiably could be recognized by the Social Security Administration as having been enrolled in a correspondence coarse which, barring a narrow exception, also would have made him ineligible for child's benefit payments.

In essence, the issues in question should be determined on a case by case basis, depending upon the specific individual's fact situation.


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PR 08005.056 - Wyoming - 05/07/2008
Batch run: 01/27/2009
Rev:05/07/2008