Liberty University Online Academy (LUOA), which is located in Virginia, satisfies the home school laws of the State of New Jersey. New Jersey law does not establish any attendance requirements or guidelines for home schooling. The student must meet Federal standards for full-time attendance and all other requirements for the payment of benefits.

QUESTION PRESENTED

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.

OPINION

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.

BACKGROUND

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. ^[1] 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.

ANALYSIS

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; and

(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).

CONCLUSION

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

 By:                             

  Kevin J~

Assistant Regional Counsel

A parent, guardian, or other person having custody and control of a child between the ages of six and 16 in New Jersey must ensure that the child regularly attends a public school or receives equivalent academic instruction elsewhere than at a public school. Equivalent instruction may be provided in a home school. The home school instructor need not be a certified teacher. New Jersey law does not require a parent or guardian to obtain approval from the local school board before beginning a home school program, nor does New Jersey require a parent or guardian to notify the local school district of their intent to home school. The parent, guardian, or home school instructor should submit evidence that the home school program provides an education equivalent to that provided in the public schools.

On December 8, 2006, you requested information on any changes to PR 08005.033 since April 1991 regarding whether the home schooling situation under New Jersey law comports with the Social Security Act and the applicable regulations. This opinion reviews three general areas: 1) whether a bona fide New Jersey home schooling situation qualifies under section 202 (d) (7) of the Social Security Act as a school that provides elementary or secondary education; (2) whether a bona fide New Jersey home schooling situation meets the scheduled attendance requirements outlined in 20 C.F.R. § 404.367; and (3) what guidelines must be followed to demonstrate that a bona fide New Jersey home schooling situation exists. Specifically, you requested clarification on whether parents must seek approval by certain local school boards before beginning a home schooling program in New Jersey.

Although there continues to be a paucity of information available on this subject, based on the information we have been able to obtain, we have concluded that the home schooling situation under New Jersey law does not comport with the Social Security Act if the requirements of full-time attendance under 20 C.F.R. §§ 404.367(b) and 404.367(c) are not met.

1. Basic Requirements Under the Social Security Act

For the purposes of entitlement to child's insurance benefits under the Social Security Act ("the Act"), "[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 other jurisdiction in which it is located." Section 202 (d) (7) (C) (i) ; accord, 20 C.F.R. § 404.367(a). Under New Jersey law, parents have a constitutional right to choose the type and character of education they feel is best suited for their children. West Morris Regional Bd. of Educ. v. Sills, 110 N.J. Super. 234, 265 A.2d 262 (1970), rev'd on other grounds, 5B N.J. 464, 279 A.2d 609, cert. denied, 404 U.S. 986 (1971) (citing Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571 (1925)). Parents or guardians appear to be restricted in their choice solely by N.J. Stat. Ann. § 18A:38-25. That statutory section provides that, for children between the ages of six and sixteen, a parent or guardian or other person having custody and control must ensure that the child regularly attends a public school or a day school which gives instruction equivalent to that provided in public school for children of similar grades and attainments or receives equivalent instruction elsewhere than at school.*/ Although New Jersey has no statute that specifically authorizes home schooling, the New Jersey Department of Education has stated that the phrase "equivalent instruction elsewhere than at school" in N.J. Stat. Ann. § 18A: 38-25 permits children to be educated at home. State of New Jersey, Department of Education, "Homeschooling Frequently Asked Questions" 2006 (see attached copy). Thus, home schooling satisfies the requirements of Section 202(d)(7)(C)(i) of the Act.

*/ In State v. Massa, the court interpreted "equivalent" as pertaining to a showing of academic equivalency, not equivalency of social development derived from group education. State v. Massa, 95 N.J. Super. 382, 231 A. 2d 252 (Morris County Ct. Law Div. 1967).

2. Attendance Requirements Under SSA's Regulations

Under the Act, "[a] full-time elementary or secondary school student, is 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 proscribed by the Commissioner) in the light of the standards and practices of the schools involved." Section 202 (d)(7)(A). Thus, the statutory language leaves it to the Commissioner to define what "full time attendance" means. Therefore, whether the attendance requirements of New Jersey home schooling ultimately qualifies under the Act is necessarily contingent on whether the home school arrangement comports with SSA's regulations.

The regulations provide that an individual is a full time student if he or she is "in full-time attendance in a day or evening noncorrespondence course of at least 13 weeks duration and [he or she is] carrying a subject load which is considered full-time for day students under the institution's standards and practices." 20 C.F.R. § 404.367(b). The regulations further require scheduled attendance at a rate of at least 20 hours per week unless certain exceptions apply. 20 C.F.R. § 404.367(c). New Jersey law provides that regular attendance at public school shall be "during all the days and hours that the public schools are in session in the district, unless . . . the mental condition of the child is such that he cannot benefit from instruction in the school or that the bodily condition of the child is such as to prevent his attendance at school ...." N.J. Stat. Ann. § 18A:38-26. The Attorney General of New Jersey has issued a formal opinion that the public schools of New Jersey must be open for instruction not less than 180 days in the school year. Attorney General's Formal Opinion No. 19-1975. However, our review of New Jersey law reveals no similar standards regarding the duration of time or the rate of attendance during the course of study in a home school situation. As such, it appears that children involved in home schooling in New Jersey would not meet the attendance requirements of the regulations.

3. Specific Requirements for New Jersey Home Schooling Situations

We have ascertained no statutory requirement that parents seek approval by the local school board before embarking on a home schooling program. Indeed, the New Jersey Department of Education has specifically stated that a parent or guardian is not required by law to notify their public school district of their intent to educate the child elsewhere than at school. State of New Jersey, Department of Education, "Homeschooling Frequently Asked Questions" 2006 (see attached copy). The New Jersey Department of Education further explained that the "law does not require or authorize the local board of education to review and approve the curriculum or program of a child educated elsewhere than at school.... The local board of education is not required or authorized to monitor the outcomes of the child." Id.

Additionally, we have found no authority which would indicate that particular texts must be used, that testing is employed to monitor the child's progress, or that attendance standards must be maintained and verified. We have been unable to discern any other specific criteria related to home schooling, except that (1) the individual who provides the home schooling need not be a certified teacher, and (2) home schooling must be academically equivalent to that provided by the public schools, but need not provide equivalent social development.

Although the Agency received information indicating that the New Jersey Sussex County Superintendent of Schools requires prior written consent for school district approval to home school, on further investigation, this is not correct. As discussed above, New Jersey Department of Education specifically states that a parent or guardian is not required to notify the public school district of their intent to educate the child elsewhere than at school. Upon contact with New Jersey Sussex County Superintendent of Schools, they explicitly acknowledged that by law they are prohibited from requiring prior written consent to home school. They indicated that they request, but do not require, that parents provide such information as a courtesy to assist the schools in efficiently managing truancy investigations.

In conclusion, with respect to your specific question, the New Jersey Sussex County Superintendent of Schools cannot according to New Jersey law, and does not in practice, require parents to seek approval from the local school board before beginning a home schooling program in New Jersey. However, even where a student is properly home schooled under the laws of New Jersey, such a student may not be eligible for child's benefits as a full-time elementary or secondary student if the duration of time and rate of attendance requirements of 20 C.F.R. §§ 404.367(b) and 404.367(c) are not met.

Barbara L. S~

Chief Counsel, Region II

By:

Gina S~

Assistant Regional Counsel

PS 07-082 above, supersedes this opinion.

New Jersey law recognizes home schools as educational institutions that provide elementary or secondary education under its compulsory school attendance statutes. The law requires that the parent or guardian of a child between the ages of 6 and 16 must have the child attend a public school or a day school or have the child receive equivalent instruction elsewhere than at school.

New Jersey law does not require particular texts, maintenance or verification of attendance, or testing to monitor a child's progress. The law provides that home schooling be academically equivalent to that provided by the public schools, but the home school instructor need not be a certified teacher. Home schools do not need to provide social development equivalent to that provided by the public schools. Although the Department of Education of at least one New Jersey county requires the child's parent to request approval before beginning a home school program, New Jersey law has no such requirement.

The child's parent or guardian should provide evidence from the local school board that the instruction the child receives in his/her home school program complies with the New Jersey requirement that it be equivalent to the instruction provided in a public school.

The student must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

In your February 27, 1989 memorandum, you requested our opinion as to whether a home schooling situation under New Jersey law comports with the Social Security Act and the applicable regulations, so as to qualify an individual for child's benefits as a student. Specifically, you requested an opinion on the following three issues: (1) whether a bona fide New Jersey home schooling situation qualifies under section 202 (d) (7) of the Social Security Act as a school that provides elementary or secondary education; (2) whether a bona fide New Jersey home schooling situation meets the scheduled attendance requirements outlined in 20 C.F.R. § 404.367; and (3) what specific guidelines must be followed to demonstrate that a bona fide New Jersey home schooling situation exists. There is a paucity of information available on this subject. Based on the information which we have been able to obtain, we offer the following opinion.

1. Basic Requirements Under the Social Security Act

For the purposes of entitlement to child's insurance benefits under the Social Security Act ("the Act"), "[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 other jurisdiction in which it is located." Section 202 (d) (7) (C) (i) ; accord, 20 C.F.R. § 404.367(a). It is clear that, under New Jersey law, parents have a constitutional right to choose the type and character of education they feel is best suited for their children. West Morris Regional Bd. of Educ. v. Sills, 110 N.J. Super. 234, 265 A.2d 262 (1970), rev'd on other grounds, 5B N.J. 464, 279 A.2d 609, cert. denied, 404 U.S. 986 (1971) (citing Pierce v. Society of Sisters 268 U.S. 510, 45 S.Ct. 571 (1925)). It would appear that parents or guardians are restricted in their choice solely by N.J. Stat. Ann. § 18A:38-25. That section provides that, for children between the ages of six and sixteen, a parent or guardian must ensure that the child regularly attends a public school or a day school which gives instruction equivalent to that provided in public school or receives equivalent instruction elsewhere than at school.*/ Thus, a home schooling situation could fall within the third option and satisfy the requirements of Section 202(d)(7)(C)(i) of the Act.

2. Attendance Requirements Under SSA's Regulations

Under the Act, "[a] 'full-time elementary or secondary school student, is an individual who is in full-time attendance as a student at an elementary or secondary school, as determined by the secretary (in accordance with regulations proscribed by him) in the light of the standards and practices of the schools involved." Section 202 (d) (7) (A). Thus, the statutory language does not define the attendance requirements, but rather incorporates by reference, the regulations implementing this particular section of the Act. Therefore, whether or not the attendance requirements of New Jersey home schooling ultimately qualifies under the Act, is necessarily contingent on whether or not the home school arrangement comports with SSA's regulations.

The regulations provide that an individual is a full time student if he or she is "in full-time attendance in a day or evening non--correspondence course and [is] 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." 20 C.F.R. § 404.367(b). New Jersey law provides that regular attendance at public school shall be "during all the days and hours that the public schools are in session, unless . . . the mental condition of the child is such that he cannot benefit from instruction in the school or that the bodily condition of the child is such as to prevent his attendance at school." N.J. Stat. Ann. § 18A:38-26. The Attorney General of New Jersey has issued a formal opinion that the public schools of New Jersey must be open for instruction not less that 180 days in the school year. Attorney General's Formal Opinion No. 19-1975 (copy attached). However, our review of New Jersey law reveals no similar standards regarding the time to be spent during the course of study in a home school situation. As such, it appears that children involved in home schooling in New Jersey would not necessarily meet the attendance requirements of the regulations.

*/ In a criminal prosecution of a parent or guardian for failure to comply with N.J. Stat. Ann. § 18A:38-25, it is incumbent on the parent or guardian to produce some evidence that the child is receiving equivalent instruction elsewhere than at school. However, the ultimate burden of persuasion remains with the state as to whether the case falls within the statutory exception to mandatory school attendance. State v. Vaughn, 44 N.J. 140, § , 207 A.2d 537, 540 (1965).

3. Specific Requirements for New Jersey Home Schooling Situations

We have ascertained no statutory requirement that parents seek approval by the local school board before embarking on a home schooling program. Nonetheless, the Department of Education of at least one county has chosen to require such prior written requests for school district approval. See Memorandum to Chief School Administrators/Principals from Sussex County Superintendent of Schools (copy attached).

Additionally, we have found no authority which would indicate that particular texts must be used, that testing is employed to monitor the child's progress or that attendance standards must be maintained and verified. Indeed, we have been unable to discern any other specific criteria related to home schooling, except that (1) the individual who provides the home schooling need not be a certified teacher and (2) home schooling must be academically equivalent to that provided by the public schools, but need not provide equivalent social development. State v. Massa, 95 N.J. Super. 382, 231 A.2d 252, 256-257 (Morris County Court 1967).