Oregon law provides an exemption from public school attendance for children educated at home by a parent or legal guardian. Oregon law requires that:

"The home schooled student must be registered with his or her resident Education Service District (ESD) to be considered full-time;

"The parent, legal guardian, or private teacher who plans to home school the student must notify the ESD in writing within 10 days of (1) beginning to home school the child, (2) withdrawing the child from public school to home school him or her, or (3) moving to a new ESD; and

"A home schooled child must be tested before the end of grades 3, 5, 8, and 10.

Ask for evidence to prove that the home schooled student meets the requirements of Oregon law.

Issue

You requested a legal opinion on whether an 18-year old home schooled student in Oregon can qualify for student benefits under Title II of the Social Security Act and what type of evidence is required to establish eligibility to student benefits.

Answer

We recommend that you find that the student satisfies the eligibility requirements for student benefits. The specific type of evidence required to establish eligibility for student benefits is not specified in Social Security regulations and the Programs Operations Manual System (POMS). Therefore, in view of this and because each case is fact specific, we made recommendations regarding evidence you should obtain from the student's Education School District (ESD) that addresses the requirements necessary to establish eligibility for student benefits as specified at 20 C.F.R. § 404.367, POMS RS 00205.001(A) and POMS RS 00205.275(B). The ESD's response to the request for evidence is incorporated in part here.

Factual Background

In your request for a legal opinion, dated November 29, 2006, you provided us with the following background statement:

The number holder, DM . . . . died on September XX, 19XX. On November XX, 19XX, JM filed a successful application for surviving stepchild's benefits on behalf of her daughter, EBJ; E has been receiving benefits since that time.

E turned age 18 in February 200X and is currently being home schooled by her mother. . . .

* * * *

We contacted SS of the South Coast ESD. She stated that children over the age of 18 cannot be officially registered in Oregon as home schooled students. Thus, the question we face is whether student benefits are payable to this individual despite the fact that the state of Oregon may not recognize home schooling for individuals who have turned age 18.

* * * *

(insertion in brackets added). You also provided us with these attachments to your request for a legal opinion: 1) page 2 of Student's Statement Regarding School Attendance (Form SSA-1372-BK) signed by EBJ and JM; 2) Home Schooling Notification Coos/Curry Counties form signed by Ms. M; 3) page 1 of Oregon Guidelines for Home Schooling Questions and Answers; and 4) a Report of Contact signed on October 17, 2006, by SE of the North Bend, Oregon District Office. We also had you obtain evidence from the ESD, which Ms. S provided in a June 5, 2008 letter. In your request, you referred to a May 7, 1991, opinion on Home Schooling in Oregon contained in POMS PR 08005.041. However, changes in Social Security Administration regulations and Oregon State law regarding home schooling have effectively invalidated the May 7, 1991, opinion. Accordingly, the May 7, 1991, opinion should no longer be followed.

Discussion

A. Social Security Program Requirements.

In order to be eligible to receive child's 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 at an educational institution. See 42 U.S.C. § 402(d)(1)(B). A full-time elementary or secondary school student includes 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 student resides. 20 C.F.R. § 404.367(a)(1). In POMS RS 00205.275(A), "home schooling" is defined as "[a] private educational program in which the student is taught within the home by a parent/teacher. It is a program of study completely by choice. . . . " POMS 00205.275(B), set forth in the analysis below, addresses when student benefits are payable to home schooled students. Furthermore, POMS PR 00205.001(A) addresses the requirements for eligibility for student benefits.

B. State of Oregon Requirements.

The State of Oregon has extensive requirements with respect to home schooling in both statutory laws and administrative rules. OR. REV. STAT. §§§ 339.010, 339.020, 339.030, 339.035, OR. ADMIN. R. §§ 581-21-0026, 581-021-0076; see also See Oregon Department of Education, Oregon Guidelines for Home Schooling Questions and Answers 1.1, 1.2, 1.3, 1.4, 1.5, 1.8, 1.9, 1.10 <http://www.ode.state.or.us/search/results/?id=74>. We did not find any information in the Oregon Statues or Oregon Administrative Rules regarding whether a home schooled student is required to be taught specific courses, such as those listed in OR. REV. STAT. § 329.045, OR. ADMIN. R. § 581-021-0200, and OR. ADMIN. R. § 581-022-1210; see also Oregon Guidelines for Home Schooling Questions and Answers 2.1.

C. Analysis.

1. The first factor of POMS RS 00205.275(B).

The first factor of POMS RS 00205.275(B), for when student benefits are payable, is if "[t]he student meets the Federal standards for full-time attendance (FTA) (RS 00205.300C.)." Ms. BJ indicated on Page 2 of the Student's Statement Regarding School Attendance (Form SSA-1372-BK) that the home school year began on September 1, 2006, and ended on July 31, 2007 (item 1(b)), and that the number of hours per week she was scheduled to attend home school was 25 hours (items 1(c) and 1(d)). As the school official, Ms. M completed and signed the "Certification by School Official" part of the Student's Statement Regarding School Attendance (Form SSA-1372-BK), in which she answered questions 1 and 2, indicating, respectively, that all information entered in item 1 was correct according to the school's records and that the school's course of study is at least 13 weeks in duration. See POMS RS 00205.350(C). Thus, it appears that Ms. BJ's attendance meets the Federal standards for FTA set out in POMS RS 00205.300(C)-that is, "[s]cheduled for attendance at the rate of at least 20 hours per week" and "[e]nrolled in a course of study that is at least 13 weeks' duration. See RS 00205.315 for policy on duration of course of study."

Besides meeting the requirements of Federal standards for FTA, a student must also meet State standards for FTA. See POMS RS 00205.300(A) and (B); see also 20 C.F.R. § 404.367(b). According to POMS RS 00205.300(B), "[c]onsider the State requirements [for FTA] met if the school considers the student to be full-time based on the school's standards and practices for day students" (insertions in brackets added). Additionally, 20 C.F.R. § 404.367(b) provides, in part, that "[i]f you are in a home schooling program as described in paragraph (a)(1) of this section, you must be 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 you reside." Under OR. ADMIN. R. § 581-021-0076(1)(d), examples of a "full-time school" include "[r]eceiving 20 hours of instruction per week in a technical or vocational school or training program" or "[b]eing taught an equivalent period of time by a parent or private teacher pursuant to ORS 339.035[.]" Because Ms. BJ indicated she was scheduled to attend home school for 25 hours, it appears that Ms. BJ meets the requirement of attending a full-time school under OR. ADMIN. R. § 581-021-0076(1)(d).

To determine whether the first factor of POMS RS 00205.275(B) was met, we recommended that you have the South Coast ESD provide a statement as to whether in Ms. BJ's home school program situation (which she indicated began on September 1, 2006, and ended on July 31, 2007), she carried a subject load which is considered full-time for day students under the standards and practices set by the State of Oregon for the school year 2006-2007. The South Coast ESD indicated that ESD's are not required to monitor what curriculum or subject load is being carried by the student and that under Oregon Guidelines for Home Schooling, parents are not required to use the state content standards and may teach programs other than those taught in public school (Ms. S's June 5, 2008 letter, answer to Question #1). Consequently, based on all of the above information, it appears that the first factor of POMS RS 00205.275(B) has been met in Ms. BJ's case.

2. The second factor of POMS RS 00205.275(B).

The second factor of POMS RS 00205.275(B), for when student benefits are payable, is that "[t]he law of the State in which the home school is located recognizes home school as an educational institution (EI)." "An EI is a school that provides elementary or secondary education (grade 12 or below) as determined under the law of the State or other jurisdiction in which it is located." POMS RS 00205.200(A). The POMS state that "[a]ssume all education provided by an elementary or secondary level school to be at the grade 12 level or below unless there is evidence to the contrary." POMS RS 00205.200(B)(1). Under OR. ADMIN. R. § "581-021-0076 Exemption From Compulsory Attendance," the meaning of a "school" includes "[b]eing taught by a parent or private teacher pursuant to ORS 339.035." (underlined emphasis in original). Based on this provision of the Oregon Administrative Rules, it appears that the law of the State of Oregon recognizes home schooling as an EI. Consequently, it appears that the second factor of POMS RS 00205.275(B) has been met in this case.

3. The third factor of POMS RS 00205.275(B).

The third factor of POMS RS 00205.275(B), with respect to when student benefits are payable, is that "[t]he home school the student attends meets the requirements of State law in which the home school is located." From our review of the Oregon Statues, Oregon Administrative Rules, and the Oregon Guidelines for Home Schooling, the third factor for the State of Oregon appears to involve the student's full-time enrollment or attendance in home schooling, the exemption and notification requirements from a parent or legal guardian to the ESD for children being taught at home by a parent or legal guardian, and examination requirements.

a. Full-time enrollment or attendance.

With respect to the full-time enrollment or attendance requirement, Oregon law provides that "[e]xcept as provided in ORS 339.030, all children between the ages of 7 and 18 years who have not completed the 12th grade are required to attend regularly a public full-time school of the school district in which the child resides." OR. REV. STAT. § 339.010 (underlined emphasis in original). However, Oregon law further provides for exemptions for when children shall not be required to attend public full-time schools, which includes "[c]hildren being educated in the children's home by a parent or legal guardian." OR. REV. STAT. § 339.030(1)(d). This particular exemption is subject to a notification requirement to the ESD by the parent or legal guardian, noted in section (C)(3)(b) of this opinion. See OR. REV. STAT. § 339.035(2). Being "[t]aught by a parent or private teacher pursuant to ORS 339.035" is included in the definition of "school." See OR. ADMIN. R. § 581-021-0076(1)(d).

We recommended that you ask the South Coast ESD to provide a statement as to whether Ms. BJ's home school program met the State of Oregon's requirements for full-time attendance or enrollment for the 2006-2007 school year. The South Coast ESD responded that it was not required to monitor what curriculum or subject load is being carried by a student. The South Coast ESD stated that, furthermore, a home school student is considered full-time as long as they have registered with their resident ESD and Ms. BJ was enrolled as of October 13, 2006 thru June of 2007 (Ms. S's June 5, 2008 letter, answer to Question #2). Therefore, it appears that Ms. BJ's home schooling situation met the State of Oregon's requirement for full-time attendance or enrollment.

b. Exemption and Notification requirements.

In Oregon, the exemption and notification requirements from a parent or legal guardian to the ESD for children being taught at home by a parent or legal guardian are set forth in OR. REV. STAT. §§ 339.010, 339.020, 339.030, 339.035 and OR. ADMIN. R. §§ 581-21-0026, 581-021-0076; see also See Oregon Guidelines for Home Schooling Questions and Answers 1.1, 1.2, 1.3, 1.4, 1.5, 1.8, 1.9, 1.10. It is unclear when the notification of home schooling to the ESD must be submitted by the parent or legal guardian under Oregon law. It is also unclear from the provisions of Oregon law whether the home schooling exemption from compulsory attendance and the notification requirements in order for an ESD to grant such an exemption apply to children aged 18 or over. We did not find any Oregon or Federal court cases addressing this issue. It is therefore unclear under Oregon law whether or not the State of Oregon recognizes home schooling for children who are aged 18 or over. We were not able to find any Oregon or Federal court cases addressing the issue of whether student benefits are payable under Title II of the Social Security Act if the State of Oregon may not recognize home schooling for children who are aged 18 or over.

In view of all of the above, we recommended that you have the South Coast ESD address in a statement: A) whether Ms. BJ was considered by that ESD to be officially registered for home schooling for the school year 2006-2007; and B) whether Ms. BJ was considered by that ESD to be compliance with all of the State of Oregon requirements for home schooling for the school year 2006-2007, including the requirements for the home schooling exemption from compulsory attendance and the notification requirements in order for the South Coast ESD to grant such an exemption. The South Coast ESD responded that Ms. BJ was registered for the 2006-2007 school year and was in compliance with the State of Oregon requirements for home schooling. The South Coast ESD stated that, "the notification form satisfies the exemption from compulsory school attendance. (ORS 339.030) There are no other requirements in the State of Oregon to be considered a registered home school student" (Ms. S's June 5, 2008 letter, answer to Question #3).

Given South Coast ESD's above response, if Ms. M submits evidence that Ms. BJ also meets the requirements of the fourth factor of POMS RS 00205.275(B), the requirements of POMS RS 00205.001(A), and the requirements of 20 C.F.R. § 404.367, then we recommend that Ms. BJ be found eligible for student benefits even though it is unclear whether or not the State of Oregon recognizes home schooling for children aged 18 or over. We make this recommendation based on three considerations. The first consideration is that POMS RS 00205.275(B) contains the following note:

IMPORTANT: Some States only require parent reporting/monitoring until the student attains the State's compulsory education age, which is age 16 in many States; however, a home school must comply with State law for the child to be entitled as a student even if he/she is beyond the State's compulsory education age. . . .

POMS RS 00205.275(B) (bold emphasis in original). This POMS note suggests that a child may still be eligible for student benefits under Title II of the Social Security Act provided that the child's home schooling complies with State law even if he or she is beyond the State's compulsory education age. This suggestion is consistent with the second consideration, which is that the Social Security Act has been considered by the courts to be remedial in purpose and is to be construed liberally. See Doran v. Schweiker, 681 F.2d 605, 607 (9th Cir. 1982).

The third consideration is that 20 C.F.R. § 404.352 contains provisions addressing when entitlement to child's benefits end in certain situations when the child is a student who has attained age 19. Similarly, POMS RS 00205.325 also contains provisions for situations when student benefits terminate when a student attains age 19. Thus, under certain circumstances a student may still be eligible for student benefits even if he or she has attained the age of 19. The Home Schooling Notification Coos/Curry Counties form you provided us with indicates that Ms. BJ's birth date is February XX, 19XX. If this is correct, under POMS GN 00302.400(A)-(B) she attained age 19 on February XX, 200X. Thus, the issue of whether or not Ms. BJ's specific fact situation comes within the provisions of 20 C.F.R. § 404.352 and POMS RS 00205.325 may need to be considered by the RSI Programs and System Team or other appropriate component. If this is so, we recommended that you have the South Coast ESD provide a statement regarding whether for the 2006-2007 school year: A) it operated on a yearly basis; or B) it operated on a quarterly or semester basis and required the student to enroll each quarter or semester and, if this is the case, whether Ms. BJ did so. The statement should specify the time periods involved for A) or B) and the basis for the answers provided. The South Coast ESD responded that: "The South Coast ESD operates on a yearly basis; E was enrolled 10/13/06 through 6/30/07. Since she turned age 18 during this time, her file could be kept open until the end of the ESD fiscal year. ORS 339.030, 339.035, OAR 581-021-0026(4)." (Ms. S's June 5, 2008 letter, answer to Question #6). We recommend that you find that Ms. BJ satisfies the eligibility requirements for student benefits.

c. Examination requirements.

With respect to examination requirements for home schooled children, the Oregon Guidelines for Home Schooling Questions and Answers 1.6 state, in part, that "[h]ome schooled children must be tested before the end of grades 3, 5, 8, and 10. The end of the grade is defined as before August 15 following the end of that school year." The State of Oregon's extensively detailed examination requirements are specified in OR. REV. STAT. § 339.035(3)-(5) and OR. ADMIN. R. § 581-021-0026(5)-(7). We recommended that you have the South Coast ESD address whether Ms. BJ has met the State of Oregon examination requirements for home schooled children. The South Coast ESD stated that "no test scores were received; however, E, grade 12, was beyond the grade and age when testing is required for home schoolers. ORS.339.035(3))." (Ms. S's June 5, 2008 letter, answer to Question #4). As stated above, testing for home schooled children in Oregon must occur before the end of grades 3, 5, 8, and 10. Thus, it appears that the examination requirements are not an issue in Ms. BJ's case because: she was 18-19 years old and in the 12th grade during the 2006-2007 year, which was beyond the age and grade when testing is required for home schooled children; and the issue here concerns her eligibility to receive student benefits as an home schooled student who had turned 18 years of age.

4. The fourth factor of POMS RS 00205.275(B).

The fourth factor of POMS RS 00205.275(B) is that the "[t]he student meets all the other requirements for benefits." We note, for instance, that POMS RS 00203.001 discusses Child's Benefits - Entitlement and Non-Entitlement Provisions, and that 20 C.F.R. § 404.367(f) discuss other requirements for eligibility for child's benefits if the individual is a full-time elementary or secondary school student. This forth factor is not discussed further here because the central issue presented concerned home schooling for an individual who had turned age 18.

Conclusion

We recommend that you find Ms. BJ satisfies the requirements for eligibility for student benefits.

Oregon State Law recognizes home school. Oregon law requires that:

• •

  Children in a home school be taught the usual public school curriculum for a period of time equal to the time children in public schools are taught,

• •

  A parent or private teacher who provides home schooling must notify in writing the appropriate school district before teaching the child, and

• •

  Children in a home school must take an annual examination approved by the State Board of Education and administered by a qualified neutral person.

The home school instructor should submit evidence to prove that the Oregon laws are being met.

In addition to Oregon State law, the student must meet Federal standards for full-time attendance and all other requirements for payment of benefits.

This is with reference to your request for our response to a series of questions you have raised regarding the relationship of "home schooling," as carried out in the state of Oregon, and eligibility for student benefits under the Retirement and Survivor's Insurance Program, as authorized by 202(d)(1) of the Social Security Act, (42 U.S.C. 402(d)(1)). Your specific questions, and our responses there to, are set out below, following some discussion of the facts giving rise to this inquiry, and also a review of the applicable law.

An 18-year-old claimant, Alroy C. S~, raises your questions in the context of a case involving an application for student insurance benefits. Mr. S~ made application for benefits in June of 1990, and indicated at that time that he would attend the Garden Way Christian Academy (a home-based school program) from September 1, 1990 through June 8, 1991. Upon contacting the Garden Way principal by letter dated October 5, 1990, however, the SSA Field Office was advised that Alroy was not then in full time attendance, but had been "through 10/90." Specifically with respect to Mr. S~, then, the question is whether his schooling arrangement for the period through October 1990, in particular, was such that he would be entitled to benefits under the Social Security Act.

Further information regarding the Garden Way program was obtained both from the principal of this program, and also from the claimant's mother. According to these sources, Garden Way provides the claimant with a study schedule and curriculum materials. Reading his materials, and then completing tests school the claimant at home. The tests were variously described as being administered by the mother or Garden Way Academy. Subjects included in the curriculum materials were English, math, social studies, and typing, with electives of gym and computer taken four times a week at the Academy facility.

No fixed time period is prescribed for completion of the Garden Way course material; rather the student continues with a course of study until it is completed satisfactorily, which may take a longer or shorter period of time, depending on the student. However, the program was also described as running "the full school year - September through June."

The parents are responsible for recording attendance. They annually provide attendance records to the Academy, which maintains the annual reports.

Applicable Law

Under the provisions of 202(d)(1) of the Social Security Act, student insurance benefits are payable, inter alia, to any dependent child (of an individual entitled to Title II benefits) who is "...a full-time elementary or secondary school student and ha(s) not attained the age of 19..." This statutory provision is implemented, in turn, through federal regulations which provide, in pertinent part, as follows:

404.367 When you are "full-time elementary or secondary school student".

...You are a full-time elementary or secondary school student if you meet all the following conditions:

(a) You attend 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;

(b) You are in full-time attendance in a day or evening non-correspondence course and are carrying a subject load which is considered full-time for day students under the institution's standards and practices, with scheduled attendance at the rate of at least 20 hours per week and a course of study which is at least 13 weeks in duration. ....

(c) An employer who has requested or required that you attend the school is not paying you while attending the school;

(d) You are in grade 12 or below; and

(e) You are not confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony (20 C.F.R.404.367)

The State of Oregon, through its statutory law, has expressly recognized enrollment in a home school as an alternative to public school enrollment at both the elementary and secondary school levels. ORS 339.030. The statute provides, in pertinent part, for an exemption from compulsory public full-time schools for:

     (5) Children being taught for a period equivalent to that required of children attending public schools by a parent or private teacher the courses of study usually taught in grades 1 through 12 in the public school.

The only other statutory requirements of which I am aware with respect to home schools in Oregon are those imposed by ORS 339.035, which provides in relevant part that:

(2) Before a parent or private teacher, as provided in ORS 339.030 (5) teaches a child, the parent or private teacher must notify the(appropriate school district) superintendent in writing.

(3) Children being taught(at home) as provided in ... this section should be examined annually in the work covered in accordance with the following procedures:

(a) The State Board of Education shall adopt by rule a list of approved comprehensive examinations, which are readily available.

(b) The parent shall select an examination from the approved list and arrange to have the examination administered to the child by a qualified neutral person, as defined by rule by the State Board of Education.

The statute goes on to provide that the school superintendent may order that the child be sent to a non-home school if the examination results reveal that the child is "not showing satisfactory educational progress."

Questions and Responses

Given the above factual and legal background, our responses to your specific questions are as follows:

Question 1: Does a home schooling situation in Oregon qualify under section 202(d)(1) of the Social Security Act as a school that provides elementary or secondary education as determined under the law of the State of Oregon?

Response: Most likely, yes. As indicated above, Oregon law does explicitly recognize home school as a permissible alternative form of secondary education. The only two requirements in order to so "qualify" are that the program offered be of a duration "equivalent" to that of public schools and that it include the "courses of study usually taught" in public school. There is evidence in the particular case at hand that the Garden Way program typically ran from "September to June," and that it included English, math, social studies, and typing. Insofar as the statutory language is not very specific, I believe that the Garden Way program should be considered as compliant with both the course duration and content requirements.

Question 2: Are the requirements in 20 C.F.R. 404.367(b) regarding scheduled attendance of at least 20 hours per week and a course of study of 13 weeks met by students enrolled in home schooling situations in Oregon?

Response: Because the Oregon laws do not impose specific hourly and course duration requirements, the answer to this question would depend entirely upon the specific home schooling situation involved, as well as the "attendance patterns" of the specific student involved. There is insufficient information in the file in this case to determine with certainty that these federal requirements were met in Mr. S~' case. An inquiry seemingly should be made of his mother specifically as to whether he was consistently involved with his schooling for at least 20 hours per week. An inquiry should be made of Garden Way Academy as to whether their course of study generally requires a period of at least 13 weeks for completion.

Question 3: What requirements must be followed in home schooling situations; e.g., must specific subjects be taught; are students tested; must parents seek written approval from the school board; are there any specific attendance requirements or verification?

Response: Presumably this question is posed with respect to home schooling in Oregon. In that State, the requirements are really quite minimal, as identified above. The state statue does not require that any specific subject be tau~ht1; but rather requires a "course of study usually taught" in public school. The meaning of such a phrase is open to expansive interpretation.

The only statutory testing requirement is that the student be tested annually, (the precise time of year is not specified), using a test approved by the State Board of Education; that this test be administered by a neutral party, and the results be provided to the appropriate school superintendent. In the case of Mr. S~ in particular, there is no information in the file to indicate whether he participated in such annual testing. On the other hand, if he only participated in home schooling for the months of September and October, 1990, it could reasonably be argued that he was not required to take the annual test, which presumably would occur at the end of the school year. There is no requirement under the Oregon statutes cited above for "written approval from the school board." A parent is required to provide written notice to the appropriate school superintendent that the child is being home schooled. Finally, the State laws of Oregon do not impose any specific attendance or verification requirements for home schooling. The only related requirement is the very general one that home schooled children is taught "for a period equivalent to that required of children attending public schools". Again, this language is so general that it's almost without meaning. For purposes of eligibility for child's benefits under Title II, however, the federal regulations require specifically that the student be involved in schooling at least 20 hours per week for a period of at least 13 weeks.

1 The "Home School Legal Defense Association" apparently suggests that courses in the Constitution and history of the United States must be taught, under the provisions of ORS 336.057. I would not necessarily agree. The cited statute requires these courses for "public and private schools". A home school does not appear, generally, to fall within either of these categories for other purposes of the State's education statutes. For example, the State has established numerous statutory requirements with respect to "private schools" that clearly are not applicable to home schools. See: ORS 345.505, et seq.

Question 4: Does a student taught at home under the auspices of a home-based private education program, such as Garden Way Christian Academy, qualify for student benefits based on home schooling.

Response: If all pertinent requirements are met, yes. In the case of Mr. S~ there is insufficient development of the relevant facts to determine, with certainty, whether he was eligible during the period of concern. Specifically, it is unknown whether he met the federal requirement of 20 hours of "attendance" (participation) weekly in the program, and whether the Garden Way program is one which (typically) runs for at least a 13 week period. If it can be determined that these requirements were, in fact, met, then Mr. S~ would apparently qualify for the student insurance benefits.

Oregon State Law recognizes home school. Oregon law requires that:

• •

  Children in a home school be taught the usual public school curriculum for a period of time equal to the time children in public schools are taught,

• •

  A parent or private teacher who provides home schooling must notify in writing the appropriate school district before teaching the child, and

• •

  Children in a home school must take an annual examination approved by the State Board of Education and administered by a qualified neutral person.

The home school instructor should submit evidence to prove that the Oregon laws are being met.

In addition to Oregon State law, the student must meet Federal standards for full-time attendance and all other requirements for payment of benefits.

This is with reference to your request for our response to a series of questions you have raised regarding the relationship of "home schooling," as carried out in the state of Oregon, and eligibility for student benefits under the Retirement and Survivor's Insurance Program, as authorized by 202(d)(1) of the Social Security Act, (42 U.S.C. 402(d)(1)). Your specific questions, and our responses there to, are set out below, following some discussion of the facts giving rise to this inquiry, and also a review of the applicable law.

An 18-year-old claimant, Alroy C. S~, raises your questions in the context of a case involving an application for student insurance benefits. Mr. S~ made application for benefits in June of 1990, and indicated at that time that he would attend the Garden Way Christian Academy (a home-based school program) from September 1, 1990 through June 8, 1991. Upon contacting the Garden Way principal by letter dated October 5, 1990, however, the SSA Field Office was advised that Alroy was not then in full time attendance, but had been "through 10/90." Specifically with respect to Mr. S~, then, the question is whether his schooling arrangement for the period through October 1990, in particular, was such that he would be entitled to benefits under the Social Security Act.

Further information regarding the Garden Way program was obtained both from the principal of this program, and also from the claimant's mother. According to these sources, Garden Way provides the claimant with a study schedule and curriculum materials. Reading his materials, and then completing tests school the claimant at home. The tests were variously described as being administered by the mother or Garden Way Academy. Subjects included in the curriculum materials were English, math, social studies, and typing, with electives of gym and computer taken four times a week at the Academy facility.

No fixed time period is prescribed for completion of the Garden Way course material; rather the student continues with a course of study until it is completed satisfactorily, which may take a longer or shorter period of time, depending on the student. However, the program was also described as running "the full school year - September through June."

The parents are responsible for recording attendance. They annually provide attendance records to the Academy, which maintains the annual reports.

Applicable Law

Under the provisions of 202(d)(1) of the Social Security Act, student insurance benefits are payable, inter alia, to any dependent child (of an individual entitled to Title II benefits) who is "...a full-time elementary or secondary school student and ha(s) not attained the age of 19..." This statutory provision is implemented, in turn, through federal regulations which provide, in pertinent part, as follows:

404.367 When you are "full-time elementary or secondary school student".

...You are a full-time elementary or secondary school student if you meet all the following conditions:

(a) You attend 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;

(b) You are in full-time attendance in a day or evening non-correspondence course and are carrying a subject load which is considered full-time for day students under the institution's standards and practices, with scheduled attendance at the rate of at least 20 hours per week and a course of study which is at least 13 weeks in duration. ....

(c) An employer who has requested or required that you attend the school is not paying you while attending the school;

(d) You are in grade 12 or below; and

(e) You are not confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony (20 C.F.R.404.367)

The State of Oregon, through its statutory law, has expressly recognized enrollment in a home school as an alternative to public school enrollment at both the elementary and secondary school levels. ORS 339.030. The statute provides, in pertinent part, for an exemption from compulsory public full-time schools for:

     (5) Children being taught for a period equivalent to that required of children attending public schools by a parent or private teacher the courses of study usually taught in grades 1 through 12 in the public school.

The only other statutory requirements of which I am aware with respect to home schools in Oregon are those imposed by ORS 339.035, which provides in relevant part that:

(2) Before a parent or private teacher, as provided in ORS 339.030 (5) teaches a child, the parent or private teacher must notify the(appropriate school district) superintendent in writing.

(3) Children being taught(at home) as provided in ... this section should be examined annually in the work covered in accordance with the following procedures:

(a) The State Board of Education shall adopt by rule a list of approved comprehensive examinations, which are readily available.

(b) The parent shall select an examination from the approved list and arrange to have the examination administered to the child by a qualified neutral person, as defined by rule by the State Board of Education.

The statute goes on to provide that the school superintendent may order that the child be sent to a non-home school if the examination results reveal that the child is "not showing satisfactory educational progress."

Questions and Responses

Given the above factual and legal background, our responses to your specific questions are as follows:

Question 1: Does a home schooling situation in Oregon qualify under section 202(d)(1) of the Social Security Act as a school that provides elementary or secondary education as determined under the law of the State of Oregon?

Response: Most likely, yes. As indicated above, Oregon law does explicitly recognize home school as a permissible alternative form of secondary education. The only two requirements in order to so "qualify" are that the program offered be of a duration "equivalent" to that of public schools and that it include the "courses of study usually taught" in public school. There is evidence in the particular case at hand that the Garden Way program typically ran from "September to June," and that it included English, math, social studies, and typing. Insofar as the statutory language is not very specific, I believe that the Garden Way program should be considered as compliant with both the course duration and content requirements.

Question 2: Are the requirements in 20 C.F.R. 404.367(b) regarding scheduled attendance of at least 20 hours per week and a course of study of 13 weeks met by students enrolled in home schooling situations in Oregon?

Response: Because the Oregon laws do not impose specific hourly and course duration requirements, the answer to this question would depend entirely upon the specific home schooling situation involved, as well as the "attendance patterns" of the specific student involved. There is insufficient information in the file in this case to determine with certainty that these federal requirements were met in Mr. S~' case. An inquiry seemingly should be made of his mother specifically as to whether he was consistently involved with his schooling for at least 20 hours per week. An inquiry should be made of Garden Way Academy as to whether their course of study generally requires a period of at least 13 weeks for completion.

Question 3: What requirements must be followed in home schooling situations; e.g., must specific subjects be taught; are students tested; must parents seek written approval from the school board; are there any specific attendance requirements or verification?

Response: Presumably this question is posed with respect to home schooling in Oregon. In that State, the requirements are really quite minimal, as identified above. The state statue does not require that any specific subject be tau~ht1; but rather requires a "course of study usually taught" in public school. The meaning of such a phrase is open to expansive interpretation.

The only statutory testing requirement is that the student be tested annually, (the precise time of year is not specified), using a test approved by the State Board of Education; that this test be administered by a neutral party, and the results be provided to the appropriate school superintendent. In the case of Mr. S~ in particular, there is no information in the file to indicate whether he participated in such annual testing. On the other hand, if he only participated in home schooling for the months of September and October, 1990, it could reasonably be argued that he was not required to take the annual test, which presumably would occur at the end of the school year. There is no requirement under the Oregon statutes cited above for "written approval from the school board." A parent is required to provide written notice to the appropriate school superintendent that the child is being home schooled. Finally, the State laws of Oregon do not impose any specific attendance or verification requirements for home schooling. The only related requirement is the very general one that home schooled children is taught "for a period equivalent to that required of children attending public schools". Again, this language is so general that it's almost without meaning. For purposes of eligibility for child's benefits under Title II, however, the federal regulations require specifically that the student be involved in schooling at least 20 hours per week for a period of at least 13 weeks.

1 The "Home School Legal Defense Association" apparently suggests that courses in the Constitution and history of the United States must be taught, under the provisions of ORS 336.057. I would not necessarily agree. The cited statute requires these courses for "public and private schools". A home school does not appear, generally, to fall within either of these categories for other purposes of the State's education statutes. For example, the State has established numerous statutory requirements with respect to "private schools" that clearly are not applicable to home schools. See: ORS 345.505, et seq.

Question 4: Does a student taught at home under the auspices of a home-based private education program, such as Garden Way Christian Academy, qualify for student benefits based on home schooling.

Response: If all pertinent requirements are met, yes. In the case of Mr. S~ there is insufficient development of the relevant facts to determine, with certainty, whether he was eligible during the period of concern. Specifically, it is unknown whether he met the federal requirement of 20 hours of "attendance" (participation) weekly in the program, and whether the Garden Way program is one which (typically) runs for at least a 13 week period. If it can be determined that these requirements were, in fact, met, then Mr. S~ would apparently qualify for the student insurance benefits.