Whether Rebecca C. T~, who is studying toward a high school diploma through Liberty
University Online Academy (LUOA), can be considered a full-time student at a secondary
school as defined under section 202(d)(7) of the Social Security Act.
Ms. T~ education through LUOA meets the requirements for a home school program under
New Jersey law. However, it has not been established that she meets the Federal requirements
for full-time attendance under 20 C.F.R. §§ 404.367(b) and 404.367(c). Based on the
information currently on file, Ms. T~ cannot be considered a full-time secondary school
student under section 207(d)(7) of the Social Security Act.
Rebecca C. T~, who turns 18 in December 2010, has been receiving Surviving Child’s
benefits since August 2010 on the record of her mother, Donna L. T~. Prior to her
mother’s death, Ms. T~ had been home schooled in her hometown of Pompton Plains, New
Jersey. In September 2010, her aunt arranged for Ms. T~ to complete her high school
education through LUOA, based in Lynchburg, Virginia. Ms. T~ aunt did not consult
with the New Jersey Board of Education regarding this schooling arrangement. Because
Ms. T~ was at least 17 years old while taking LUOA courses, truancy is not an issue
under New Jersey laws.
Ms. T~ is currently taking three classes in the fall semester and will have four classes
in the spring through LUOA. She is on track to graduate in July or August 2011. Her
courses are self paced, and the online program tracks usage hours. However, it does
not measure homework time or time spent completing geometry problems as part of her
class work. Since her enrollment in September 2010, Ms. T~ was averaging 15 usage
hours.  According to the LUOA guidance counselor, in order for Ms. T~ to get through the
semester, she would need to take two lessons per course per day, which would necessitate
a minimum of 20 hours per week.
A. Social Security Laws and Regulations
Under the Social Security Act (“Act”), an individual may continue to receive surviving
child’s benefits past the age of 18 if she is a full-time elementary or secondary
school student. 42 U.S.C. 402(d)(1)(E). The Act defines a full-time elementary or
secondary school student as: “an individual who is in full-time attendance at an elementary
or secondary school…” 42 U.S.C. 402(d)(7)(A). An elementary or secondary school is
defined as “a school which provides elementary or secondary education under the laws
of the State or other jurisdiction in which it is located.” 42 U.S.C. 402(d)(7)(C)(i).
This can include home school, independent study, online school, or traditional brick
and mortar school. See 20 C.F.R. § 404.367(a); POMS RS 00205.295. A home schooled student can be considered an elementary or secondary student under
the Act if the student is “instructed in elementary or secondary education at home
in accordance with a home school law of the State or other jurisdiction in which [she]
reside[s].” 20 C.F.R. § 404.367(a)(1). A home schooled student must carry a subject
load which is considered full-time for day students under the standards and practices
set by the State or other jurisdiction in which she resides. 20 C.F.R. § 404.367(b).
An online school may be recognized as an elementary or secondary school if the online
school is considered an educational institution under the laws of the state in which
it is located. POMS RS 00205.295. A student attending an online school must carry a subject load that is considered
full-time for day students under the institution’s standards and practices. 20 C.F.R.
§ 404.367(b). Whatever the type of school attended, the regulations require that the
student be scheduled to attend at least 20 hours per week in order to meet the requirements
of full-time attendance. This rule is excepted only if the school attended does not
schedule 20 hours per week and is the only reasonable alternative for the student,
or if the student has a medical condition that prevents her from attending at least
20 hours per week. 20 C.F.R. § 404.367(c).
State Laws and Guidelines
Whether LUOA qualifies as home schooling is analyzed under the laws of New Jersey,
the state in which Ms. T~ resides. See 20 C.F.R. § 404.367(a)(1). New Jersey has no statute that explicitly authorizes or
regulates home schooling. See POMS PR 08005.033 Homeschooling in New Jersey (2007). Under the New Jersey State compulsory education
statue, children between the ages of six and 16 must “regularly … attend the public
schools of the district or a day school in which there is given instruction equivalent
to that provided in the public schools for children of similar grades and attainments
or … receive equivalent instruction elsewhere than at school.” N.J.S.A. 18A:38-25.
The New Jersey Department of Education has interpreted the phrase “equivalent instruction
elsewhere than at school” to permit home schooling. State of New Jersey, Department
of Education, Frequently Asked Questions: Homeschooling, 2006, available at http://www.state.nj.us/education/genfo/faq/faq_homeschool.htm. The New Jersey Department of Education has further stated that State law does not
require or authorize the local board of education to review and approve the curriculum
of a home schooling program and parents are not required to inform the local board
of education of their intent to provide home schooling. Where a parent or guardian
selects a web-based program for the child, the state or local board of education is
not required or authorized to approve the selected program and the parent or guardian
is solely responsible for any program selected. Id. Under the compulsory education laws, the State may challenge the equivalency of the
instruction at home, but the burden is on the State to prove that the education provided
is not equivalent to that provided by the public schools. See State v. Vaughn, 44 N.J. 142, 147 (1965). New Jersey law does not establish any attendance requirements
or guidelines for home schooling, but the State’s public schools must be open for
instruction at least 180 days in the school year. New Jersey Attorney General Formal
Opinion No. 19-1975.
Whether LUOA qualifies as an educational institution is analyzed under the laws of
Virginia, the state in which it is located. See POMS RS 00205.295. According to POMS PR 08205.052, Virginia does not recognize online schools as educational institutions. In January
2010, the Executive Assistant to the Virginia Board of Education told the Region III
Office of General Counsel that Virginia did not recognize online schools as educational
institutions, but allowed students to take online courses to supplement their regular
curriculum, and such students may receive credit for those courses at the discretion
of their school’s principal. See POMS PR 08205.052 State Survey Regarding Legal Recognition and Requirements for Online Schools (2010).
A. Ms. T~ Is Not Entitled to Benefits Because She Is Not a Full-Time Secondary School
Student Under the Act
Under the federal laws, Ms. T~ may continue to receive survivors benefits past the
age of 18 only if the following conditions are met:
(1) LUOA qualifies as home schooling under New Jersey law or as an educational institution
under Virginia law;
(2) Ms. T~ carries a subject load which is considered full-time for day students;
(3) Ms. T~ is scheduled to attend school at least 20 hours per week. 1. LUOA Is Not Considered an Educational Institution Under Virginia Law, But It Qualifies
As a Home School Under New Jersey Law
Because Virginia does not recognize online schools as educational institutions, LUOA
is not considered a secondary school under the Act. However, Ms. T~ education through
LUOA satisfies the home school laws of the State of New Jersey. The New Jersey Department
of Education specifically contemplates that a student may receive home schooling through
a web-based program. Furthermore, the State leaves the selection of that program to
the discretion of the parent or guardian of the student. Because LUOA satisfies the
New Jersey home schooling laws, therefore, Ms. T~ may be considered a secondary student
under the Act.
2. Ms. T~ Is Not Entitled to Benefits Because She Has Not Established That She Meets
the Requirements for Full-Time Attendance
Although Ms. T~ may be considered a secondary student under the Act, she has not established
that she meets the requirements for full-time attendance. A school year at LUOA is
180 days with 90 days in each semester. In order for full academic credit to be granted,
LUOA requires 180 days of instructional work. Liberty Union Online Academy, Grade Level Curriculum Guide Grades 9 – 12, available at http://www.libertyonlineacademy.com/media/9933/LUOA%209th-12th%20Grade%20Curriculum%20Guide%20rev%209-2010.pdf. These requirements are consistent with New Jersey’s mandate that public schools be
open for instruction at least 180 days per year. However, because LUOA is designed
to meet the graduation requirements of Virginia and not New Jersey, it is not clear
whether a full-time student at LUOA would carry the same subject load as is considered
full-time for students in Ms. T~ jurisdiction.
Additionally, it is not as clear whether Ms. T~ education through LUOA fulfills the
requirements for full-time attendance under the Social Security laws. In order to
be considered a full-time student, Ms. T~ must attend at least 20 hours of schooling
per week. LUOA tracks online usage, and according to the guidance counselor, Ms. T~
currently averages only 15 hours per week. However, this does not capture time Ms.
T~ spends doing geometry problems as part of her course work. Furthermore, the guidance
counselor stated that in order to remain on track for the semester, Ms. T~ must complete
two lessons per course per day, which requires at least 20 hours per week. Ms. T~
actual online attendance appears at odds with the required attendance as described
by her guidance counselor. This may be attributed to additional course work Ms. T~
does offline, which is not tracked by the school. However, based on the information
currently on file, Ms. T~ has not established that she meets the requirements for
full-time attendance under 20 C.F.R. § 404.367(c).
In sum, it is our opinion that Ms. T~ education through Liberty University Online
Academy qualifies as home schooling under New Jersey law. However, Ms. T~ has not
established the requirements for full-time attendance under the Social Security regulations.
Thus, based on the information currently on file, Ms. T~ cannot be considered a full-time
secondary student as defined under section 202(d)(7) of the Social Security Act.
Stephen P. C~
Regional Chief Counsel
Assistant Regional Counsel