You have requested our opinion whether the home schooling of Joy E. G~, SSN ~, qualifies
her to receive student benefits on the record of Donald B. P~, SSN ~. As discussed
below, the State of Colorado recognizes a home school as an educational institution
(EI). In addition, we believe Joy's specific home schooling situation meets both State
and Federal requirements.
Based on your documentation, the facts of this situation appear to be as follows.
Joy, who becomes 18 years old in January 1999, is being taught at home by her mother,
Gretchen A. G~. Joy stated she is "scheduled to attend" school 20+ hours per week.
Joy's mother stated she kept attendance records and that Joy's school program includes
no less than 172 days of instruction, averaging four instructional contract hours
per day. Courses being taught include English, German IV, Geometry, World History,
Art History, Bible, Physical Education, Chemistry, and Music. All courses are taught
by Joy's mother, except German IV is taken at a public high school, piano is taught
by a private tutor, and Geometry is taught by Joy's father. Joy is tested daily by
her mother. She is scheduled to graduate in July 1999. Joy's home schooling was verified
in a September 1998 letter from Sandra C~, coordinator of Home Based Education for
Jefferson County Public Schools. Ms. C~ stated no further verification was required
from her office regarding Joy's upcoming graduation.
Under section 202(d) of the Social Security Act, 42 U.S.C. § 402(d), the child of
a retired, disabled, or deceased wage earner (WE) is eligible to receive benefits
on the WE's account if, as pertinent here, at the time of application she "either
had not attained the age of 18 or was a full-time . . . secondary school student and
had not attained the age of 19 . . . ." 42 U.S.C. § 202(d)(1)(B). A "full-time" secondary
student is one "who is in full-time attendance as a student at . . . [a] secondary
school, as determined by the Commissioner of Social security (in accordance with regulations
prescribed by the Commissioner) in the light of the standards and practices of the
school involved . . . ." 42 U.S.C. § 402(d)(7)(A). 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." Id. § 402(d)(7)(C). Under the regulations, home
schooling is an appropriate type of secondary education if it complies with the law
of the State or other jurisdiction in which the student resides. 20 C.F.R. § 404.367(a)(1)
(1998). See POMS 00205.275.
Colorado law requires children to attend public schools until they reach age 16. Colo.
Rev. Stat. (C.R.S.) § 22-33-104(1) (copy attached). However, an exception to this
law applies where the child "is being instructed at home . . . [u]nder a non-public
home-based educational program pursuant to section 22-33-104.5 . . . ." C.R.S. § 22-33-104(2)(i)(II).
Colorado law further provides:
The following guidelines shall apply to a non-public home-based educational program:
(a) A parent or an adult relative designated by a parent to provide instruction in
a non-public home-based educational program shall not be subject to the requirements
of the "Teacher Certification Act of 1975", article 60 of this title, nor to the provisions
of article 61 of this title relating to teacher employment.
(b) A child who is participating in a non-public home-based educational program shall
not be subject to compulsory school attendance as provided in this article; except
that any child who is habitually truant, as defined in section 22-33-107(3), at any
time during the last six months that the child attended school before proposed enrollment
in a non-public home-based educational program may not be enrolled in the program
unless the child's parents first submit a written description of the curricula to
be used in the program along with the written notification of establishment of the
program required in paragraph (e) of subsection  of this section to the superintendent
of the child's school district of residence.
(c) A non-public home-based educational program shall include no less than one hundred
seventy-two days of instruction, averaging four instructional contact hours per day.
(d) A non-public home-based educational program shall include, but need not be limited
to, communication skills of reading, writing, and speaking, mathematics, history,
civics, literature, science, and regular courses of instruction in the constitution
of the United States as provided in section 22-1-108.
(e) Any parent establishing a non-public home-based educational program shall provide
written notification of the establishment of said program to the local school district
of residence fourteen days prior to the establishment of said program and each year
thereafter if the program is maintained. The parent in charge and in control of a
non-public home-based educational program shall certify, in writing, only a statement
containing the name, age, place of residence, and number of hours of attendance of
each child enrolled in said program.
(f) Each child participating in a non-public home-based educational program shall
be evaluated when such child reaches grades three, five, seven, nine, and eleven.
Each child shall be given a nationally standardized achievement test to evaluate the
child's academic progress, or a qualified person shall evaluate the child's academic
progress. The test or evaluation results, whichever is appropriate, shall be submitted
to the local school district of residence or an independent or parochial school within
the state of Colorado. If the test or evaluation results are submitted to an independent
or parochial school, the name of such school shall be provided to the local school
district of residence. The purpose of such tests or evaluations shall be to evaluate
the educational progress of each child.
(g) The records of each child participating in a non-public home-based educational
program shall be maintained on a permanent basis by the parent in charge and in control
of said program. The records shall include, but need not be limited to, attendance
data, test and evaluation results, and immunization records, as required by sections
25-4-901, 25-4-902, and 25-4-903, C.R.S. Such records shall be produced to the local
school district of residence upon fourteen days' written notice if the superintendent
of said school district has probable cause to believe that said program is not in
compliance with the guidelines established in this subsection (3).
C.R.S. § 22-33-104.5(3) (copy attached).
The first question to be resolved, therefore, is whether Joy's home schooling meets
these State requirements. To this end, POMS RS 00205.275 mandates full development and documentation of the home schooling issue, particularly
regarding the student's attendance rate and the courses taken.
As noted above, Ms. C~ verified Joy's home schooling includes no less than 172 days
of instruction, averaging four instructional contract hours per day. Ms. C~ also stated
Joy would not need further verification in order to graduate. Ms. C~'s statements
indicate Joy is meeting all of the requirements of C.R.S. § 22-33-104.5.
The second question is whether Joy meets Federal requirements for full-time attendance
(FTA). Under the regulations, a student's "scheduled attendance must be at the rate
of at least 20 hours per week" (unless certain exceptions apply). 20 C.F.R. § 404.367(c).
See also POMS RS 00205.300A.2. Although Joy stated she was "scheduled to attend" school 20+ hours weekly, the
record does not include attendance records showing compliance with this requirement.
However, as noted above, Ms. C~ verified Joy attends school four hours per day, which,
based on a five-day week, would average 20 hours per week. Further verification of
Joy's FTA is not required. See POMS RS 00205.350A.1.a. (attendance verification not required where there is no reason to doubt the student's
allegation). Thus, Joy's home schooling meets the requirements of both State and Federal
You also have requested our opinion on Social Security student benefit requirements
for nonaccredited schools in Colorado. The general issue of nonaccredited schools
has been considered in prior opinions by SSA/OGC. These opinions found it was "legally
supportable" to conclude that an EI need not be affirmatively accredited or approved
by the state, and that if the nonpublic school met the state's compulsory education
law, the school could be recognized as an approved school for purposes of the Social
Security student benefit provision. See, e.g., Memorandum, Does Outreach Christian Education Qualify an Educational Institution?,
CC VII (Fry) to ARC, SSA, January 22, 1991; Memorandum, Status of the Northwest Indian
Bible School as an Educational Institution, CC VIII (Blair) to RC, SSA, January 26,
1990 (copies attached).
As relevant here, Colorado's compulsory school attendance law exempts a child:
[w]ho is enrolled for a minimum of one hundred seventy-two days in an independent
or parochial school which provides a basic academic education. "Basic academic education"
for the purpose of this article means the sequential program of instruction provided
by an independent or parochial school. Such program shall include, but not be limited
to, communication skills of reading, writing, and speaking, mathematics, history,
civics, literature, and science.
C.R.S. § 22-33-104(b). If a school is found to meet all of these requirements for
an exemption from Colorado's compulsory attendance law, SSA would be justified in
determining that the school is an approved EI. If questions arise regarding specific
EI's, we would be happy to render an opinion regarding the questioned EI.