You asked the following questions:
Whether a prior opinion issued on November 14, 2001, is still valid;
Whether the Claimant, Jason L~ (hereinafter, "the Claimant"), qualifies for student
entitlement based on his home schooling in Nevada after he turned 18 years of age.
The 2001 opinion is no longer valid due to changes in SSA regulations and policy regarding
home schooling. Applying the current law, the claimant appears to satisfy all federal
and state requirements to qualify as a full-time student based on his home schooling.
SUMMARY OF EVIDENCE
Born on October 28, 1986, the claimant was 17 years of age on September 26, 2004,
the date of his application seeking to continue his entitlement beyond age 18 as a
student child. Until October 2004, the claimant received child's benefits based on
a prior application. On September 26, 2004, the claimant's stepmother and home school
teacher, Stephanie L~, stated that the claimant's past dates of attendance were from
"9-00 to 6-04." The claimant stated he expected the school year to last from "9-02-04
to 6-22-05." Thus, approximately eight months remained from claimant's18th birthday
until the projected end of his school year on June 22, 2005.
We were provided the following documentation supporting the claimant's application:
(1) Student's Statement Regarding School Attendance (SSA-1372); (2) a letter dated
August 25, 2004, from Michael W~, Associate Superintendent, Educational Services for
the Carson City, Nevada, School District, stating that the application on behalf of
Christine, Elizabeth, Katherine and Jason L~ for home schooling was " …in compliance
with NRS 385.080 and NRS 392.070," and was approved by the Board of Trustees for the
2004-2005 school year; and (3) legal arguments from the claimant's attorney representative,
Darren A. J~ of the Home School Legal Defense Association.
A. The 2001 Opinion
The November 14, 2001, opinion issued by this office indicated that home schooling
in Nevada constituted one of the grounds excusing compulsory attendance at a public
elementary or secondary school for children between the ages of 7 and 17. The opinion
further concluded that since Nevada law does not address home schooling of 18-year-olds,
a claimant would be unable to establish that his home school was an educational institution
in accordance with Nevada law, as required by Social Security law and policy.
Changes in the Social Security policy have effectively invalidated the November 14,
2001, opinion in all aspects. Accordingly, the November 14, 2001, opinion should no
longer be followed.
B. Social Security Program Requirements
In order to be eligible to receive Social Security child insurance benefits, an individual
who is 18 years of age but has not attained age 19 must be a "full-time elementary
or secondary school student." Section 202(d)(1)(B) of the Social Security Act. A "full-time
elementary or secondary school student" is defined as "an individual who is in full-time
attendance as a student at an elementary or secondary school, as determined by the
Commissioner of Social Security (in accordance with regulations prescribed by the
Commissioner) in light of the standards and practices of the schools involved. . .
. ." Section 202(d)(7)(A) of the Act. An "elementary or secondary school" is defined
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." Section
202(d)(7)(C)(i) of the Act.
In 1996, the Commissioner of Social Security revised the "rule on full-time elementary
or secondary school students to include students enrolled in home schooling … programs
authorized by State or local law." 61 Fed. Reg. 38361-01 (July 24, 1996). Specifically,
the regulation, 20 C.F.R. § 404.367, was amended to read:
You may be eligible for child's benefits if you are a full-time elementary or secondary
student. * * * (a) You attend a school which provides elementary or secondary education
as determined under the law of the State or other jurisdiction in which it is located.
Participation in the following programs also meets the requirements of this paragraph:
(1) You are instructed in elementary or secondary education at home in accordance
with a home school law of the State or other jurisdiction in which you reside; . .
61 Fed. Reg. at 38361 (codified at 20 C.F.R. § 404.367(a)(1)).
The Agency's Program Operations Manual System (POMS) was changed to address home schooling.
Specifically, student benefits are payable if the following criteria are met:
the student meets the federal standards for full-time attendance (FTA);
the law of the state in which the home school is located recognizes home schooling
as an educational institution (EI);
the home school the student attends meets the requirements of the state law in which
the home school is located; and
the student meets all the other requirements for benefits.
POMS RS 00205.275. Here, the claimant is home schooled in the State of Nevada.
C. Nevada Law
Every child between the ages of 7 and 17 residing in Nevada is subject to the compulsory
school attendance law. Specifically, Nevada law states:
Except as otherwise provided by law, each parent, custodial parent, guardian or other
person in the State of Nevada having control or charge of any child between the ages
of 7 and 17 years shall send the child to a public school during all the time the
public school is in session in the school district in which the child resides.
Nev. Rev. Stat. Ann. § 392.040(1) (2005). However, a child receiving equivalent, approved
instruction, including homeschooling, is exempt from the compulsory attendance law.
Nev. Rev. Stat. Ann. § 392.070(1) (2005). A "homeschooled child" is defined as "a
child who receives instruction at home and who is exempt from compulsory attendance
pursuant to NRS 392.070." Nev. Rev. Stat. Ann. § 385.007(3) (2005). Attendance under
the compulsory attendance law must be excused when satisfactory written evidence is
presented to the board of trustees of the school district in which the child resides
that the child is receiving, at home or in some other school, equivalent instruction
of the kind and amount approved by the State Board. Nev. Rev. Stat. Ann. § 392.070(1).
Nevada's home school law provides that the parent of a child who will be instructed
in a home school must file a notification of intent to exempt the child from compulsory
attendance stating that the child is being provided with instruction in a home school.
Nev. Admin. Code § 392.024 (2005). Each notification of intent shall include:
(a) The child's full name;
(b) The name of the parent of the child;
(c) The address where the child resides;
(d) The child's date of birth;
(e) Evidence that the child will receive equivalent instruction as prescribed by Nev.
Admin. Code § 392.035 from a:
i. Teacher who satisfies the requirements of subsection 2 of Nev. Admin. Code § 392.026,
ii. Parent who satisfies the requirements of subsection 2 of Nev. Admin. Code § 392.028,
iii. Parent in consultation with an experienced educator who satisfies the requirements
of Nev. Admin. Code § 392.031; or
iv. Parent through an approved correspondence course; and
(f) The information contained in Nev. Admin. Code §§ 392.026, 392.028, 392.031 or
392.033, as applicable.
(g) The current address of the school the child is attending; and
(h) The names, telephone numbers and addresses of the persons who currently have custody
of the child.
Nev. Admin. Code § 392.024(1). Upon the initial filing, the notification of intent
must also be accompanied by proof of the child's identity, such as the child's birth
certificate or other document sufficient to establish identity. Nev. Admin. Code §
If the child is to be instructed by a licensed teacher, the notification must also
contain a calendar of the proposed days on which the child will receive instruction,
which shall include the equivalent of at least 180 days of instruction, and proof
of the teacher's license appropriate for the grade being taught. Nev. Admin. Code
§ 392.026 (2005).
Here, the claimant submitted a letter from the Carson City School Board certifying
his home school as being in compliance with Nevada state requirements for the school
year 2004-2005. Thus, it appears that the claimant has presented evidence that, in
fact, his home school met Nevada's requirements for the school year 2004-2005. Therefore,
the claimant satisfies the Commissioner's requirements for proof of eligibility for
student benefits. POMS RS 00205.275.