On October 13, 2005, you asked our advice as to whether the home-schooling of Samantha
R. S~ (Claimant) meets the requirements for home-schooling under Federal standards
and the law of Delaware, whether Claimant is in full-time attendance, and whether
she is entitled to student benefits.
Having reviewed the relevant regulatory and legal authorities, we have concluded that
Claimant does not meet the requirements for entitlement to student benefits. Claimant
has failed to provide evidence of compliance with the requirements of Delaware law,
and has failed to establish that she is a full-time student in a non-correspondence
The evidence provided indicates that Claimant was born on May 16, 1987. She reached
her 18th birthday in May 2005. In March 2005, Claimant and her mother (the certifying
official) completed a Student Statement Regarding School Attendance, Form SSA-1372.
On that form, Claimant and her mother certified that Claimant was enrolled in home-school
for 25 hours per week. They also reported that Claimant's school-year would extend
from April 15, 2004 through September 14, 2005; that her previous school year had
extended from January 3, 2003 through March 19, 2004; and that she was not expected
to graduate until August 2006. Additionally, they provided documentation indicating
that Claimant's studies involved course-work from Trent School, an internet-based,
As a non-disabled child over age 18, Claimant may continue to qualify for Child's
Insurance Benefits only if she is a full-time student. 20 C.F.R. § 404.350(a)(5) (2005).
20 C.F.R. § 404.367 sets out the criteria under which a child may be eligible for
benefits as a full-time student. The following provisions of 20 C.F.R. § 404.367 are
particularly relevant to the analysis of this case:
A home-schooled student must be instructed in elementary or secondary education at
home in accordance with the home-school law of a State or other jurisdiction in which
she resides. 20 C.F.R. § 404.367(a)(1).
A student must be in full-time attendance of at least 20 hours per week (unless an
exception applies), and, in the case of a home-schooled student, must carry a subject
load which is considered to be full-time for day students under standards and practices
set by the State or other jurisdiction in which she resides. 20 C.F.R. § 404.367(b),(c).
A student must attend a non-correspondence course of at least thirteen weeks duration.
20 C.F.R. § 404.367(b).
In this case, the first regulatory provision involves the application of Delaware
law. The State of Delaware recognizes a "single-family homeschool," where one's own
children are educated primarily by a parent or guardian in their own residence, as
a valid form of non-public-schooling. 14 Del. C. § 2703A (2005). Non-public-schools
operating in Delaware are required to submit an annual statement of pupil enrollment
as of the last school-day in September, on or before October 31; and an end-of-year,
attendance report, on or before July 31. 14 Del. C. § 2704. However, Delaware does
not mandate compulsory school attendance after age 16. 14 Del. C. § 2702.
Although verifying that home-schools in Delaware do not need to register to educate
students over age 16, our correspondence with the Delaware Department of Education
also indicates that a home-school may register to educate children up to age 21. According
to the Delaware Department of Education, if the home-school chooses to register, it
must submit its attendance and enrollment reports. Otherwise, the Department of Education
deems the home-school to be closed. Therefore, a home-school is considered to exist
in Delaware only if it complies with the State's annual reporting requirements.
The age of compulsory education has always been considered relevant in determining
student status, because POMS RS 00205.275C includes the following annotation "IMPORTANT: Some States only require parent reporting/monitoring
until the student attains the State's compulsory education age which, in most cases,
is age 16. In these cases, if the State recognizes home schooling as an EI [educational
institution], and the home school parent/instructor certifies that the student is
in FTA [full-time attendance], determine the child to be a student."
Although the above-cited annotation to POMS RS 00205.275C seems to suggest that Claimant should be determined to be a student, we have been
advised that the Office of Program Law, Office of the General Counsel, has recently
issued a legal opinion which concludes that this annotation to POMS is in conflict
with the requirements of 20 C.F.R. § 404.367, because it ignores the requirement that
the home-school must meet the law of the State in which it is located. Accordingly,
the deletion of this annotation is now proposed as part of an Intercomponent Review
Draft (IRD) of POMS RS 00205, currently being circulated for comment by the Office
of Disability and Income Security Programs.
We believe that the guidance provided by the Office of Program Law is directly applicable
to this case. Therefore, the facts of this case must be evaluated under the regulatory
requirements of 20 C.F.R. § 404.367, without consideration of the conflicting POMS
annotation, and Claimant must show that she is home-schooled in accordance with the
law of Delaware regardless of whether or not she has passed the compulsory age of
education. As Claimant has provided no evidence that her home-school has submitted
the annual enrollment and attendance reports required by Delaware law, we do not believe
that she is entitled to student benefits on the existing record.
The second relevant regulatory provision involves the issue of full-time attendance.
To be deemed a full-time student, Claimant must show that she is scheduled to attend
20 hours of school per week, and is carrying "a subject load which is considered full-time
for day students under standards and practices set by the State or other jurisdiction
in which [she] reside[s]." 20 C.F.R. § 404.367(b),(c). Although Claimant has stated
that she is scheduled to attend 25 hours of school per week, she has also indicated
that her school-year will last for seventeen months. As Claimant is reported to be
a straight-A student, and a normal school year lasts for less than ten months, we
believe that the reported duration of Claimant's school year weighs against a finding
that she is in full-time attendance with a full-time subject-load. Further, although
Claimant states that her course materials are provided by Trent Schools, the record
confirms only one tuition payment to Trent Schools. As that payment was made in April
2004, and amounted to less than a third of the annual tuition requirement, the payment
record also weighs against a finding of continuing full-time attendance. We do not
believe that Claimant can be found to be in full-time attendance unless these evidentiary
inconsistencies are resolved.
The final relevant regulatory provision involves the requirement that Claimant be
enrolled in a non-correspondence course. 20 C.F.R. § 404.367(b). The "NOTE" to POMS
RS 00205.275C provides that "if a student's courses are from a correspondence school, the home
school teacher must instruct the student using the course material." The Report of
Contact in the case file indicates that Claimant's mother is her home-school instructor,
and that the home-school uses an internet-based correspondence program. However, we
find no statement in the record to confirm that Claimant's mother is actually providing
Claimant's instruction. Further, the e-mail correspondence from Trent Schools indicates
that Claimant submits her essays and tests directly to that institution for grading.
Accordingly, we believe that further verification of Claimant's mother's role as the
home-school instructor would be required before Claimant could be deemed to attend
a non-correspondence course.
For the reasons set forth above, it is our opinion that Claimant does not meet the
requirements for entitlement to student benefits. Claimant has failed to provide evidence
of compliance with the requirements of Delaware law, and has failed to establish that
she is a full-time student in a non-correspondence course.
Donna L. C~
Regional Chief Counsel, Region III
Teri C. S~-J~
Assistant Regional Counsel