You have requested legal opinions on two issues. First, you requested a legal opinion
regarding whether a home school and a "non-accredited" school in Wyoming meet the
requirements for section 202(d)(7)(C)(i) of the Social Security Act ("the Act"), 42
U.S.C., for the receipt of Social Security student benefits under section 202(d)(1)(A)-(C),
(E), (F). Second, you requested a legal opinion regarding whether Buckles S~ ("Mr.
S~") (~) met the requirements for student benefits by his alleged participation in
a home-based educational program.
For the reasons discussed below, we believe that a home school in Wyoming may meet
the requirements for section 202(d)(7)(C)(i) of the Act. We further believe a "non-accredited"
school in Wyoming may also meet the requirements of section 202(d)(7)(C)(i) of the
Act. Under the specific facts of Mr. S~'s case, we do not believe that he met the
requirements for student benefits as a participant in a home-based educational program
permitted in Wyoming in 1995 and 1996.
Federal Law
"Every child of an individual . . . who dies a fully or currently insured individual,
if such child has filed application for child's benefits, at the time of the application
was unmarried, and . . . was a full-time elementary or secondary school student and
had not attained the age of 19 . . . shall be entitled to a child's insurance benefit
for each month beginning with . . . the first month in which such child meets the
above-specified criteria . . . and ending with the month preceding the month in which
such child attains the age of 18 (but only if he . . . is not a full-time elementary
or secondary school student during any part of such month), or the first month during
no part of which he is a full-time elementary or secondary school student, or the
month in which he attains the age of 19." 42 U.S.C. §§ 202(d)(1)(A), (B), (C), (E)
& (F)(i) & (ii) (emphasis added).
42 U.S.C. § 202(d)(7)(C)(i) provides that "[a]n 'elementary or secondary school' is
a school which provides elementary or secondary education, respectively, as determined
under the law of the State or the jurisdiction in which it is located." See also 20 C.F.R. § 404.367(a) (1998). Specifically with respect to home schools, implementing
regulations specify that elementary or secondary education at home in accordance with
the home school law of the State or other jurisdiction in which an individual resides
qualifies as an elementary and/or a secondary school. See 20 C.F.R. § 404.367(a)(1) & (2) (1998).
The Social Security Act and Regulations mandate certain requirements before a child
in a home-based educational program can qualify for student benefits as a full-time
elementary or secondary school student: He must be instructed in elementary or secondary
education at home in accordance with the home school law of the State in which he
resides; he must be in full-time attendance in a day or evening non-correspondence
course of at least 13 weeks duration and carry a subject load which is considered
full-time for day students under the standards and practices of the State in which
he resides; his scheduled attendance must be at the rate of at least 20 hours per
week; he must not be paid to attend school; he must be in grade 12 or below; and he
must not be subject to the provisions of 20 C.F.R. § 404.468. See 42 U.S.C. § 202(d)(7)(A)-(C)(i); 20 C.F.R. §§ 404.367(a)-(f) (1998) (emphasis added).
Wyoming Law
Home School
With regard to the first federally required elements, Wyoming defines a home-based
educational program as "a program of educational instruction provided to [the] child
by the child's parent or legal guardian or by a person designated by the parent or
legal guardian." Wyo. Stat. 1977 § 21-4-101(a)(iii) & (v). In Wyoming, if a child
is subject to statutory compulsory attendance laws, a home-based educational program
must meet the requirements of a basic academic educational program and the person
administering the program must submit a curriculum to the local board of trustees
each year showing that the program complies with the requirements of Wyo. Stat. 1977
§ 21-4-102(b). See Wyo. Stat. 1977 § 21-4-102(b).
An individual not subject to Wyoming's statutory compulsory attendance laws is not
mandated to follow the requirements of Wyo. Stat. 1977 § 21-4-102(b). However, as
indicated above, the Act requires that, to be eligible for child's benefits, an individual
must comply with the home school law of the state in which he resides. 20 C.F.R. §
404.367(a)(1). Further, should an individual chose to continue his education within,
and have his education recognized by, the State of Wyoming, he must comport with Wyoming
statutory mandates, including Wyo. Stat. 1977 § 21-4-102(b), regardless of his age
or educational attainment. Therefore, an individual of any age who complies with both
Wyoming and Federal laws, regulations and policy governing home-based educational
programs will have met the requirements of section 202(d)(7)(C)(i) of the Act.
Non-accredited School
With respect to "non-accredited schools," while Wyoming State statutes do not specifically
address accreditation of elementary or secondary schools, the Wyoming State Board
of Education is charged with establishing minimum standards for all schools subject
to licensing, including correspondence schools, and with ensuring that programs offered
by public schools provide the opportunity to acquire sufficient knowledge and skills
through evaluation and accreditation of school districts. See Wyo. Stat. 1977 §§ 21-2-304(a)(ii), 21-2-401(b). Further, Wyoming State Accreditation
Standards (Department of Education, Cheyenne) define accreditation as a process by
which each school district and each school within the district is assessed and is
monitored by the State in order to identify strengths, plan and implement improvement,
assure legal compliance and assure the public that children are learning in accordance
with locally determined performance standards.
In the Park County School District #6 the local school district board regards home-based
educational programs as non-accredited schools. See copy of Policy (Attachment No. 2). Nevertheless, if an individual complies with all
State and Federal requirements concerning home-based educational programs, such a
non-accredited school may meet section 202(d)(7)(C)(i) of the Act. Therefore, a "non-accredited"
school in Wyoming may meet the requirements of section 202(d)(7)(C)(i) of the Act.
Further, Wyoming may permit and recognize a home-based educational program using a
curriculum supplied by a non-accredited and/or non-licensed private (correspondence)
school, as long as the curriculum is submitted to and approved by the local school
board. See Wyo. Stat. 1977 § 21-4-102(b); copy of Policy (Attachment No. 2). Here again, such
a home-based educational program may satisfy section 202(d)(7)(C)(i) of the Act for
receipt of Social Security student benefits.
Facts
The facts of Mr. S~'s specific situation may be summarized as follows. In May 1992,
Linda A. M~ ("Ms. M~"), Mr. S~'s mother, filed an application on his behalf for Child's
Insurance Benefits Survivor Claim on the earnings record of Francis S~, who died fully
insured on April 25, 1992. Mr. S~, born on November 5, 1977, is currently 21 years
of age. He received benefits through September 1996, ending in the month before the
month he attained 19 years of age. The Social Security Administration apparently revisited
their decision and found Mr. S~ was not a full-time student, and thus ineligible for
child's benefits after he attained age 18. Consequently, an overpayment of benefits
in the amount of $12,387.00 from October 1995, the month preceding the month in which
Mr. S~ attained the age of 18 (November 5, 1995), through September 1996, when his
benefits were terminated remains in question. Mr. S~ and Ms. M~ maintain that he continued
to be entitled to benefits after he attained age 18 because he was a full time student
in a home-based educational program.
Throughout the relevant time period, October 1995 through September 1996, Mr. S~ resided
in the Park County School District #6. In September 1995, when he was 17 years of
age and while continuing to live in Cody Wyoming, Mr. S~ enrolled in the American
School of Chicago, Illinois.
In October 1995, Ms. M~ reported that she had not filed an intent to home school with
the State, the local Department of Education, or the local high school and that she
did not actually take part in teaching Mr. S~. She did, however, maintain attendance
records, monitor his hours, review his homework, and sent his tests to the American
School.
In November 1996, Janet E. H~, Guidance Counselor with the American School, reported
that Mr. S~ enrolled with the American School on September 14, 1995, to earn a general
program high school diploma. She stated that the American School was a correspondence
high school. She further reported that Mr. S~ was a full-time student in good standing
at the senior level and had completed five and one half units of credit out of a required
seven units of credit.
In May 1998, Ms. M~ reported that Mr. S~ attended home-schooling four hours per day
in addition to evening discussions and review for a total of 20 to 25 hours per week.
She also reported that the courses "taught" were Social Studies, U.S. History, World
History, World Literature, Psychology, Geometry, Career Planning, and Automobile Mechanics;
that Mr. S~ took tests furnished by the school about once a week which she checked
and sent to the school; and that, inconsistent with her October 1995 report, she did
not maintain attendance records but did supervise Mr. S~'s attendance.
Law
During the relevant period at issue, 1995 and 1996, an individual could "be eligible
for child's insurance benefits if he was a full-time elementary or secondary school
student." 20 C.F.R. § 404.367 (1996). An individual was a full-time elementary or
secondary school student if:
(a) [he] attend[ed] a school which provide[d] elementary or secondary education .
. . as determined under the law of the State or other jurisdiction in which it is
located;
(b) [he was] in full-time attendance in a day or evening course of at least 13 weeks
duration and . . . carried a subject load which [was] considered full-time for day
students under the institution's standard's and practices. Additionally, [his] scheduled
attendance must [have been] at the rate of at least 20 hours per week. . . ;
(c) [he was] not being paid while attending school . . .;
(d) [he was] in grade 12 or below; and
(e) [he was] not confined in a jail . . ..
20 C.F.R. § 404.367(a)-(e) (1996).
While the regulations in effect through 1996 did not specifically allow for a home-school
educational program, as they do now, if Mr. S~'s alleged home-based educational program
was a school which provided elementary or secondary education as determined under
the law of the Wyoming; and if Mr. S~ was in full-time attendance in a day or evening
course of at least 13 weeks duration, carried a subject load which was considered
full-time for day students under the institution's standards and practices, had scheduled
attendance at the rate of at least 20 hours per week, was not being paid while attending
school, was in grade 12 or below, and was not confined in jail, such a program could
have met the requirements of section 202(d)(7)(C)(i) of the Act for entitlement to
child's insurance benefits. In fact, home-based educational programs were recognized
by Wyoming as early as 1985, as a legitimate means of elementary and secondary education.
See Wyo. Stat. 1977 §§ 24-4-101(a)(iii) & (v), & 102(b).
While Mr. S~ was beyond compulsory age, we believe he was required to comply with
Wyoming statutory law regarding home-based educational programs. Based on the facts
provided, neither Ms. M~ nor Mr. S~ submitted a copy of the American School curriculum
to the local school district board for approval. Failure to submit the intended curriculum
for a home-based educational program is prima facie evidence that the home-based educational
program did not meet the requirements of Wyo. Stat. § 21-4-102(b). See Wyo. Stat. § 21-4-102(b). Thus, neither Ms. M~ nor Mr. S~ complied with Wyoming State
requirements for a home-based educational program and Mr. S~ could not have been recognized
as a full time student in a home-based educational program by Park County School District
# 6 nor, consequently, by the State of Wyoming. As such, his alleged home-based educational
program did not meet the threshold requirement of section 202(d)(7)(C)(i) of the Act
or 20 C.F.R. § 404.367(a)-(f) (1996), and we believe you could conclude that he was
not eligible for child's insurance benefits beyond his eighteenth birthday.
Since Mr. S~ was enrolled as a full-time student in a correspondence school (see Letter
dated November 20, 1996, from the American School; see also Report of Contact dated November 7, 1996), and since he did not comply with state
requirements for a home-based educational program, he justifiably could be recognized
by the Social Security Administration as having been enrolled in a correspondence
coarse which, barring a narrow exception, also would have made him ineligible for
child's benefit payments.
In essence, the issues in question should be determined on a case by case basis, depending
upon the specific individual's fact situation.