I. ISSUES PRESENTED
You asked for updates to the Iowa Regional Chief Counsel Precedents in POMS PR 08005.018 and PS 08005.018 – Iowa Home Schooling, based on amendments to Iowa Chapter 229A: Private Instruction,
which were effective July 1, 2013. These precedents provide guidance on developing
student status for home schooled students. Effective July 1, 2013, amendments to Iowa
statutes established a new home schooling arrangement and made some other requirements
optional. Based on our research, we offer the following analysis of the 2013 amendments
and the updates needed to make POMS PR 08005.018 and PS 08005.018 consistent with current Iowa law on home schooling.
In addition to updating the Iowa precedents regarding home schooling, we have taken
this opportunity to provide an update on home schooling procedures for the other three
states in our region: Kansas, Nebraska, and Missouri. Our research revealed minor
changes in Nebraska and Missouri law, and the analysis below contains guidance on
the current law in these states.
Section 202(d) of the Social Security Act (Act) provides that child’s insurance benefits
usually terminate when the child attains age 18. See 42 U.S.C. § 402(d)(6), (7). Entitlement to child’s benefits may continue, however,
if (among other things) the child “was a full-time elementary or secondary student
and had not attained the age of 19.” 42 U.S.C. § 402(d)(1)(B). The Act defines a full-time
elementary or secondary student as “an individual who is in full-time attendance as
a student at an elementary or secondary school, as determined by the [Commissioner]
(in accordance with regulations prescribed by the Commissioner) in the light of the
standards and practices of the schools involved . . . .” Id. at § 402(d)(7)(A). The Act defines an elementary or secondary school as “a school
which provides elementary or secondary education, respectively, as determined under
the law of the State or other jurisdiction in which it is located.” Id. at § 402(d)(7)(C)(i). Except for two specific exceptions noted in the Social Security
regulations, the student must be scheduled to attend school for at least 20 hours
per week in order to be considered a full-time student. See 20 C.F.R. § 404.367(c).
Effective July 24, 1996, the regulations were revised to specifically include students
enrolled in home schooling or independent study programs authorized by state or local
law. See 61 Fed. Reg. 38,361 (1996) (codified at 20 C.F.R. § 404.367 (1997)). The regulations
allow child’s benefits to continue to age 19 if the child is being “instructed in
elementary or secondary education at home in accordance with a home school law of
the State or other jurisdiction in which [the child] reside[s].” 20 C.F.R. § 404.367(a)(1).
The child must also carry “a subject load which is considered full-time for day students
under standards and practices set by the State or other jurisdiction in which [the
child] reside[s].” 20 C.F.R. § 404.367(b).
For a child who has reached the age of 6 years and is under 16 years of age by September
15, Iowa requires compulsory attendance at a public school or an accredited nonpublic
school, or the parent or guardian must place the child under competent private instruction
or independent private instruction. See Iowa Code §§ 299.1, 299.1A (2016). If a child enrolled in a school district or accredited
nonpublic school reaches the age of 16 on or after September 15, the child remains
of compulsory age until the end of the regular school year. See Iowa Code § 299.1A.
Iowa statutes define “private instruction” as “instruction using a plan and a course
of study in a setting other than a public or organized accredited nonpublic school.”
Iowa Code § 299A.1(2)(c). This definition encompasses home schooling. Prior to July
1, 2013, Iowa recognized only “competent private instruction;” however, amendments
effective July 1, 2013, established another type of private instruction, called “independent
private instruction.” See Iowa Code § 299A.1(1); House File 215. Competent private instruction requires instruction
on a daily basis for at least 148 days during a school year, to be met by attendance
for at least 37 days each school quarter, by or under the supervision of a licensed
practitioner or a nonlicensed person, which results in the student making adequate
progress. Iowa Code § 299A.1(2)(a).
Competent private instruction encompasses dual enrollment and home school assistance
programs. See Iowa Code §§ 299A.2, 299A.8, 299A.12. Dual enrollment involves enrollment of a child
receiving competent private instruction with the school district for the purposes
of attending courses, participating in extracurricular activities, or obtaining special
education services. See Iowa Code § 299A.8; Iowa Department of Education, Private Instruction Handbook (Home Schooling or Enrollment in a Non-Accredited “School”
2016-2017 (Handbook) at 8 (available at https://www.educateiowa.gov/sites/files/ed/documents/2016-2017PrivateInstructionHandbook.pdf) (last visited Dec. 13, 2016). School districts may provide a home school assistance
program, which involves employing one or more properly-licensed instructors to provide
instruction or instructional supervision of competent private instruction. See Iowa Code § 299A.12; Handbook at 10.
For students receiving competent private instruction provided by a licensed practitioner,
the licensed practitioner must possess a valid license that is appropriate for the
age and grade level of the child, and the licensed practitioner is responsible for
monitoring the child’s progress. Iowa Code § 299A.2; Iowa Department of Education,
Handbook at 11 (available at https://www.educateiowa.gov/sites/files/ed/documents/2016-2017PrivateInstructionHandbook.pdf) (last visited Dec. 13, 2016). Students receiving competent private instruction provided
by a licensed practitioner that is not in an accredited school or through a home school
assistance program operated by a school district or accredited nonpublic school shall
submit a report in duplicate to the public school district by September 1 of each
school year. Iowa Code § 299.4. The report shall state the name and age of the child,
the period of time during which the child will be under competent private instruction
for the year, an outline of the course of study (subjects covered, lesson plans, and
time spent on the areas of study), the texts used, and the name and address of the
instructor. See id.
Children between the ages of 7 and 15, inclusive, who receive competent private instruction
provided by a nonlicensed person, may, but are not required to, be assessed annually to determine if adequate progress
is being made. Iowa Code §§ 299A.3, 299A.4; Handbook at 11. Annual assessment can include standardized testing, portfolio assessment,
or submittal of a report card from an accredited correspondence school. Handbook at 11. In lieu of annual achievement evaluations, a parent, guardian, or legal custodian
of a child may submit all of the following evidence of adequate academic process:
(1) a book of lesson plans, a diary, or other written record indicating the subjects
taught and the activities of the child; (2) a portfolio of the child’s work; and (3)
completed assessment evaluations that are administered as part of the competent private
instruction. Iowa Code § 299A.4(7). This evidence is then reviewed by a licensed Iowa
practitioner. Id. In addition, a parent, guardian, or legal custodian of a child receiving competent
private instruction provided by a nonlicensed person may, but is no longer required to, complete and send to the school district the report
described in Iowa Code § 299.4 and referenced above. See Iowa Code § 299A.3.
By contrast, “independent private instruction” refers to instruction that meets the
following criteria: (1) is not accredited; (2) enrolls not more than four unrelated
students; (3) does not charge tuition or fees; (4) provides private or religious-based
instruction as its primary purpose; (5) provides enrolled students with instruction
in mathematics, reading and language arts, science, and social studies; (6) provides,
upon written request from the superintendent of the school district in which the independent
private instruction is provided, or from the director of the department of education,
a report identifying the primary instructor, location, name of the authority responsible
for the independent private instruction, and the names of the students enrolled; (7)
is a nonpublic school and does not provide “competent private instruction” as described
above; and (8) is exempt from all state statutes and administrative rules applicable
to a school, a school board, or a school district, except as otherwise provided in
chapter 299 and chapter 299A. Iowa Code § 299A.1(2)(b). Unlike competent private instruction,
independent private instruction has no similar requirement for daily instruction.
Handbook at 8. In addition, independent private instruction is exempt from annual assessment
requirements. Id. at 8.
The Handbook provides additional guidance for distinguishing competent private instruction from
independent private instruction. Per the Handbook, no form is required to enroll a child in independent private instruction in Iowa,
although parents are advised to inform the local school district that they are choosing
this option for education. See Handbook at 8. Independent private instruction instructors are responsible for their own students’
progress; however, there is no requirement to assess students annually or report to
the school district or the Iowa Department of Education. See Handbook at 8. However, if requested in advance, the district shall make available courtesy
standardized testing to students receiving independent private instruction. See Handbook at 4, 18. The superintendent of the district of residence of a student enrolled in
independent private instruction, or the director of the Iowa Department of Education,
may, but is not required to, make a written request for a report from a parent identifying
the primary instructor, location, name of the authority responsible for the independent
private instruction, and the names of the students enrolled. See Iowa Code § 299A.1(2)(b)(6); Handbook at 4, 8, 18. Although independent private instruction must cover the four required
content areas of mathematics, reading and language arts, science, and social studies,
the school district has no right to request documentation confirming that those areas
are covered in the instruction provided. See Iowa Code § 299A.1(2)(b)(5); Handbook at 7-8.
In summary, as discussed above, under changes to Iowa law in 2013, home schooling
in Iowa is no longer limited to competent private instruction. As of July 1, 2013,
with passage of House File 215, independent private instruction meets the statutory
requirements for home schooling in Iowa, and there is very little state oversight
of home schools operating under independent private instruction. In addition, reporting
and assessment requirements are no longer mandatory for competent private instruction
provided by a nonlicensed practitioner.
According to the Kansas Department of Education, Kansas does not specifically authorize
“home schooling” by statute, but instead recognizes “non-accredited private schools”
as a mechanism for allowing home instruction. See Kansas Department of Education, Homeschooling in Kansas, (available at http://www.ksde.org/Portals/0/ECSETS/FactSheets/FactSheet-HomeSchool.pdf) (last visited Dec. 13, 2016); Kan. Stat. Ann. §§ 72-53,100-102 (2016). Non-accredited
school attendance can satisfy state compulsory attendance laws. See id; see also Kan. Stat. Ann. § 77-1111. Instructors in non-accredited schools need not be certified
as teachers by the state, but they must be “competent instructors.” Id. Registration consists of filling out a form provided by the State, and the State
retains a record of the non-accredited schools. Id. Registration may be made online. See Kansas Department of Education, Non-Accredited Private School Online Registration, (available at https://apps.ksde.org/naps_form/default.aspx) (last visited Dec. 13, 2016).
Kansas law compels school attendance for children between the ages of 7 and 18.
See Kan. Stat. Ann. § 72-1111. There are exceptions for certain children, including what
is popularly referred to as an “Amish” exception that provides for the cessation of
schooling after eighth grade for some children. See id. Private schools must have a school year that is substantially similar in length to
that of a public school. See id.; Kan. Stat. Ann. § 72-1106. A public school student must attend 186 days of school
through eleventh grade totaling 1,186 hours per year, and 181 days of school in twelfth
grade, totaling 1,086 hours per year.
See Kan. Stat. Ann. § 72-1106.
As stated in our previous opinions, In re Sawyer, 672 P.2d 1093 (Kan. 1983), remains the only Kansas Supreme Court or appellate case
in this area as no other appellate case has addressed private non-accredited instruction
since that time. In Sawyer, the Court held that two children were “in need of care” because they were not attending
school as required by the statute. See id. School sessions only lasted a half day. See id. at 1095-96. The education activities were unaccredited, unplanned, and unscheduled,
and the teacher was uncertified. See id. at 1095-97. The Court noted that teachers need not be certified, but cited a prior
case in which a teacher with a Kansas teaching certificate was found to be a “competent”
instructor. See id. at 1097 (citing State v. Lowry, 383 P.2d 962 (Kan. 1963) (teacher competent, but private school invalid for curriculum
reasons since eliminated by the Legislature)). Following Sawyer through 1994, three district courts held that non-accredited private schools conducted
in the home were bona fide private schools using competent instructors, and no home
schools were determined to be invalid. See David S. Adams, Home Schooling in Kansas, Friend or Foe, Journal of the Kansas Bar Association, February/March 1994. We were unable to find
cases after that date that addressed the validity of non-accredited private schools
On November 21, 1985, shortly after Sawyer, in an opinion prepared for the Johnson County District Attorney, Dennis Moore, the
Kansas Attorney General stated that their office recognized that home instruction
was widespread across Kansas. See Kan. Atty. Gen. Op. No. 85-159 (available at http://ksag.washburnlaw.edu/opinions/1985/1985-159.pdf) (last visited Dec. 13, 2016). The Attorney General opined that there was no authority
for local school board oversight or inspection of home schools. See id. The proper remedy if a child was not attending school in the manner set forth in
the compulsory attendance law was for the Kansas Department for Children and Families
(KDCF) (formerly the State Department of Social and Rehabilitative Services (SRS))
to investigate. See id. The Attorney General stated that even considering Sawyer, it cannot be automatically assumed that all home instruction violates Kansas law,
and that KDCF had a duty to apply the factors set forth in Sawyer to determine whether a violation of compulsory school instruction had occurred. See id.
Nebraska requires compulsory regular attendance at public, private, denominational,
or parochial school for children of mandatory attendance age. See Neb. Rev. Stat. § 79-201(2) (2016). A child is of mandatory attendance age if the
child (a) will reach 6 years of age prior to January 1 of the then-current school
year and (b) has not reached 18 years of age. See Neb. Rev. Stat.
§ 79-201(1). Such compulsory regular attendance can be satisfied by attendance at
a school that elects to not meet accreditation or approval requirements. See Neb. Rev. Stat. § 79-201(2). “In Nebraska, ‘home schools’ are referred to as exempt
schools and are considered non-approved or non-accredited schools.” Nebraska Department
of Education, Exempt (Home) School Program, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited on Dec. 13, 2016).
Section 79-1601(3) of the Nebraska statutes provides that private, denominational,
or parochial schools may elect not to meet state accreditation or approval requirements.
However, such elections are only effective if the parents or legal guardians of children
attending such schools submit a statement to the Commissioner of Education that the
state accreditation or approval requirements either: (1) violate sincerely held religious
beliefs of the parents, or (2) interfere with the decisions of the parents or in directing
the student’s education. See Neb. Rev. Stat.
§ 79-1601(3). In addition, parents seeking exemption must affirm that they will meet
minimum health and safety requirements, teach specific subjects, and report attendance.
See id. at § 79-1601(3)-(4). Individuals instructing students are not required to meet the
state certification requirements for teachers. See id. at § 79-1601(5). However, evidence of competence to provide instruction must be provided
by other means. See id.
Effective May 21, 2016, Title 92 of the Nebraska Administrative Code was amended,
making Rule 13 the current rule governing the procedures and standards for parents
(or legal guardians) filing for an exemption. See Title 92, Neb. Admin. Code, Ch. 13 (2016); Nebraska Department of Education., Exempt (Home) School Program, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited on Dec. 13, 2016). The Nebraska Department of Education has developed
forms for the parent to complete attesting that the home school meets the requirements
to qualify as an exempt school. Changes effective May 21, 2016, also revised the due
date for filing these forms with the Nebraska Department of Education to July 15 annually.
See id. The forms are available online at the Nebraska Department of Education website. See Nebraska Department of Education, (available at http://www.education.ne.gov/fos/OrgServices/ExemptSchools/) (last visited Dec. 13, 2016).
These forms include a statement of election regarding the decision to home school
(religious reasons or non-religious reasons) and information regarding the child’s
age and the name and address of the exempt school. The forms also include affirmations
regarding annual filing requirements; the proper sequential instruction in the language
arts, mathematics, science, social studies, and health; and the competency of those
monitoring instruction to teach the above subjects. The forms also require the parent
or legal guardian to include the dates of operation of the exempt school, which must
allow sufficient time to meet the required minimum hours of instruction of 1,032 in
elementary schools and 1,080 in secondary schools. See Form A: Parent or Guardian Form; 2016/17 Information Summary for Parent Representative,
(available at https://www.education.ne.gov/fos/OrgServices/ExemptSchools/Downloads/1617/R13_Checklist_and_Forms.pdf) (citing Title 92, Neb. Admin. Code, Ch. 13) (last visited Dec. 13, 2016). Upon approval,
the State Commissioner of Education will send a Letter of Acknowledgment to the parent.
See Nebraska Department of Education, Exempt (Home) School Frequently Asked Questions (FAQs) (2016/17 School Year) at 7 (available at https://www.education.ne.gov/FOS/OrgServices/ExemptSchools/Downloads/1617/FAQs.pdf) (last visited Dec. 13, 2016).
The administrative rules provide that a parent must apply for exempt status only until
the child reaches age 18. Once the child reaches age 18, compulsory education under
Nebraska law is no longer required; therefore, filing for exempt status is no longer
Under Missouri law, any parent may educate a child at home and the parent does not
need to have a teaching certificate or meet any educational requirements. See Mo. Ann. Stat. § 167.031 (2016); Missouri Department of Elementary and Secondary
Education, “Home Schooling,” (available at https://dese.mo.gov/governmental-affairs/home-schooling) (last visited Dec. 13, 2016). In 2009, the compulsory attendance age increased from
16 years of age to 17 years of age, or once the student successfully completes 16
credits toward high school graduation. See id.; 2009 Mo. Legis. Serv. S.B. 291. A child between 7 and 17 years of age must attend
some combination of public, private, parochial, or home school. See Mo. Ann. Stat. § 167.031.
Under Missouri law, a “home school” is a school, whether incorporated or unincorporated,
that: (a) has as its primary purpose the provision of private or religious-based instruction;
(b) enrolls pupils between the ages of 7 and 17 years, of which no more than 4 are
unrelated by affinity or consanguinity in the third degree; and (c) does not charge
or receive consideration in the form of tuition, fees, or other remuneration in a
genuine and fair exchange for provision of instruction. See id.
As evidence that a child is receiving regular instruction, Missouri statutes require
the parent to maintain the following records: (a) a plan book, diary, or other written
record indicating subjects taught and activities engaged in; (b) a portfolio of samples
of the child’s academic work; and (c) a record of evaluations of the child’s academic
progress. See Mo. Ann. Stat. § 167.031.2.(2)(a). In the alternative, the parent may maintain other
written, or credible evidence equivalent to the evidence listed above. See id. The statute does not require this proof for children above the age of 16. See Mo. Ann. Stat. § 167.031.2(3). Moreover, a parent’s statement that such a child is
in school is a defense against a prosecution for educational neglect. See Mo. Ann. Stat.
The home school instruction must include at least 1,000 “hours of instruction” during
the school year (July 1 and ending the next June 30), and at least 600 hours of this
must be in reading, language arts, mathematics, social studies, and science, or academic
courses that are related to these subjects and compatible with the pupil's age and
ability. At least 400 of the 600 hours must occur at the regular home school location.
See Mo. Ann. Stat. § 167.031.2(2)(b).
There is no Missouri statute that requires the parent or guardian to seek written
approval from the school board to home school the child. There is also no requirement
that the home school must register with the state; however, Missouri statute states
that a parent or legal guardian may notify the superintendent of schools or the recorder of the county of deeds, in the
county where the child legally resides, of their intent to home school within 30 days
after the establishment of the home school and by September 1 annually thereafter.
See Mo. Ann. Stat. § 167.042. The notice should include the name and age of each child
attending the home school, the address and telephone number of the home school, the
name of each person teaching in the home school, and the name, address, and signature
of each person making the declaration of enrollment. See id. Home-schooled students do not register with the Department of Elementary and Secondary
Education. See Missouri Department of Elementary and Secondary Education, “Home Schooling,” (available at https://dese.mo.gov/governmental-affairs/home-schooling) (last visited Dec. 13, 2016).
If you have any further questions, or if you have questions about applying the requirements
in Iowa or any of the other states in our region to the facts of a specific case,
please feel free to contact us.
Kristi A. Schmidt
Chief Counsel, Region VII
By: Meghan J. McEvoy
Assistant Regional Counsel