TN 34 (11-17)

A. PR 18-004 Eligibility for Child’s Insurance Benefits as a Full-Time Elementary or Secondary School Student Based on Home Schooling in Mississippi

Date: October 11, 2017

1. Syllabus

Nonpublic schools in Mississippi include home instruction programs. Mississippi law appears to specify only two requirements for a home school to be legitimate:

• First, a legitimate home instruction program shall be those not operated or instituted for the purpose of avoiding or circumventing the compulsory attendance law. 

• Second, Mississippi regulations require that a parent of a child enrolled in a home school must submit a certificate of enrollment on a yearly basis to the local school attendance officer.

Claimant qualifies as a home school student under Mississippi law for determining her eligibility for Child’s Insurance Benefits as a full-time student since she meets both of the State requirements.

2. Opinion

QUESTION

You asked whether Claimant’s instruction at home in Mississippi satisfies the requirements for eligibility for child’s insurance benefits (CIB) as a full-time student.

OPINION

Claimant has established that she qualifies as a home school student under Mississippi law for determining her eligibility for CIB as a full-time student.

BACKGROUND

According to the information provided, A~ (Claimant) was receiving CIB on the earnings record of her mother, B~, the number holder. Claimant turned eighteen years old in September 2017 and has applied for a continuation of CIB as a full-time student.

On July XX, 2017, Claimant, who lives in F~, Mississippi, completed a Student’s Statement Regarding School Attendance form (Form SSA-1372). Claimant indicated she was in full-time attendance at or through Carthage Christian Academy (CCA), which she indicated is a high school. Claimant reported the previous school year at CCA began on September 9, 2016, and ended on May 13, 2017. Claimant reported that she attended CCA thirty hours per week and is expected to graduate in May 2018.

On July XX, 2017, R~, a home school counselor at CCA, completed and signed the Certification by School Official page of Form SSA-1372 and indicated the information Claimant provided was correct. R~ also indicated CCA’s course of study lasts at least thirteen weeks.

Claimant’s mother reported the following to the agency. Claimant studies at home from 8:00 a.m. to 2:00 p.m., Monday through Friday. The method of instruction for her schooling is self-study from textbooks provided by CCA. The schooling is the Accelerated Christian Education (ACE) program. Students of the program have nine weeks to complete each set of textbooks received and then take a written test upon completion of each textbook. Textbooks are returned to CCA at the end of each nine-week quarter. Upon Claimant’s completion of a textbook, Claimant’s mother administers and grades a written test and provides the test results to CCA. The subjects of study include English, Math, Word Building, History, Algebra, Bible Study, and Science. Claimant can obtain help on any subject from teachers at CCA. Claimant’s mother does not keep a daily attendance, but she knows how much time Claimant has to complete the courses and ensures she does the required course work. No computers are used. Claimant’s mother has a certificate of enrollment in home school from Scott Central Attendance Center approving home schooling for Claimant. Upon completion of Claimant’s courses, she will graduate as part of the CCA senior class in May 2018, receive a high school diploma, and participate in the graduation ceremony as if she had been attending the school in person.

Following our initial review of this matter, we requested that the agency contact Claimant’s mother and request that she provide a copy of Claimant’s certificate of enrollment in home school and complete and sign the Certification by School Official page of Form SSA-1372. In response, Claimant’s mother provided the following items: (1) a Certification by School Official page of Form SSA-1372, signed and dated by Claimant’s mother on August XX, 2017, indicating that the information Claimant provided on Form SSA-1372 was correct and that Claimant’s course of study lasts at least thirteen weeks; (2) a Verification of Compliance from the Mississippi Department of Education, Office of Compulsory School Attendance Enforcement, dated and electronically signed by T~, School Attendance Officer, on September XX, 2012, indicating that Claimant was in compliance with the compulsory school attendance law; and (3) a Mississippi Department of Education, Certificate of Enrollment, dated September 5, 2017, identifying T~ as the Student Attendance Officer and indicating the type of education program in which Claimant is enrolled is “Home Instruction.”

DISCUSSION

To be eligible for CIB on the earnings record of an individual who is entitled to old-age or disability insurance benefits, an individual who is eighteen years of age or older and not disabled must be a “full-time elementary or secondary school student.” Social Security Act (Act) § 202(d)(1)(B)(i), (d)(7)(A); see 20 C.F.R. §§ 404.350(a)(5), 404.367 (2017);¹ Program Operations Manual System (POMS) RS 00205.001.A. A claimant may qualify as a full-time student if he or she receives instruction in elementary or secondary education at home in accordance with a home school law of the state in which he or she resides. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275.

A claimant also must attend school full time to qualify as a full-time student. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.001A; POMS RS 00205.300A. A claimant meets the Federal standards for full-time attendance if he or she is scheduled to attend school at the rate of at least twenty hours per week, enrolled in a noncorrespondence course, and enrolled in a course of study lasting at least thirteen weeks. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C. A home schooled claimant must meet the Federal standards for full-time attendance and carry a subject load that is considered full-time for day students under standards and practices set by the state in which the claimant resides. See 20 C.F.R. § 404.367(b); POMS RS 00205.275.B. Additionally, the law of the state in which the home school is located must recognize home school as an educational institution. See POMS RS 00205.275.B. To establish that the claimant attends a qualifying home school, the claimant’s home school instructor must submit evidence that the state requirements for home schooling are met. See POMS RS 00205.275.C. In addition, the home schooling instructor is the certifying school official for full-time attendance purposes on Form SSA-1372. See id.; see also POMS RS 00205.350B (stating the agency uses Form SSA-1372 to verify attendance).

Because Claimant resides in Mississippi, we look to Mississippi law to determine whether Mississippi recognizes home schooling as an educational institution, and if it does, whether Claimant’s home schooling meets Mississippi’s requirements for home schooling. See Act § 202(d)(7)(C)(i); 20 C.F.R. § 404.367(a); POMS RS 00205.275.B. In Mississippi, a parent, guardian, or custodian of a child must cause his or her child to enroll in and attend a public school or legitimate nonpublic school for the period that the child is of compulsory school age, except in certain limited circumstances. See Miss. Code Ann. § 37-13-91(3) (West 2017). Mississippi law defines a school as any public or nonpublic school that is in session for 180 school days, except that the “nonpublic” school term shall be the number of days that each school shall require for promotion from grade to grade. See Miss. Code Ann. § 37-13-91(2)(e). A “nonpublic school” is “an institution for the teaching of children, consisting of a physical plant, whether owned or leased, including a home, instructional staff members and students, and which is in session each school year. This definition shall include, but not be limited to, private, church, parochial and home instruction programs.” Miss. Code Ann. § 37-13-91(2)(i). Mississippi law broadly restricts the State’s power to regulate nonpublic schools. See Miss. Code Ann. § 37-13-91(9).

CCA, which is located in Mississippi’s Leake County, is not listed as a public school in the Leake County School District by the Mississippi Department of Education (MDE). See MDE, Leake County School District, http://www.mde.k12.ms.us/Locations?District=2 (last visited Oct. 2, 2017). Likewise, CCA is not listed as a nonpublic school accredited by Mississippi’s State Board of Education. See MDE, List of Nonpublic Schools Accredited by The State Board of Education, http://www.mde.k12.ms.us/docs/accreditation-library/nonpublic-school-list-for-2016-2017-approved-by-sbe-5-8-17_20170920.pdf?sfvrsn=2 (last visited Oct. 2, 2017). Mississippi, however, does not require nonpublic schools that receive no local, state, or Federal funds for support to be accredited by the State Board of Education. See Miss. Code Ann. § 37-17-6(6); MDE, Accreditation Frequently Asked Questions, Question 8, http://www.mde.k12.ms.us/ACCRED/faq (last visited Oct. 2, 2017). Mississippi has a voluntary nonpublic school accreditation process, but recognizes that nonpublic schools may be accredited by nonpublic school associations or groups. See Miss. Code Ann. §§ 37-17-7, 37-17-9; MDE, Accreditation Frequently Asked Questions, Question 8, http://www.mde.k12.ms.us/ACCRED/faq (last visited Oct. 2, 2017). Regardless, we do not have sufficient information to determine whether CCA meets Mississippi’s statutory definition of a nonpublic school (i.e., consisting of a physical plant, instructional staff members, and students).

In any event, notwithstanding Claimant’s indication on Form SSA-1372 that she attends CCA -- a high school and, therefore, not a home school -- the evidence indicates that Claimant is enrolled in a home school. For example, Claimant studies at home via a method of self-study, Claimant’s mother administers and grades Claimant’s tests, and Claimant’s certificate of enrollment indicates the type of education program in which she is enrolled is “Home Instruction.” Additionally, R~, who signed the Certification by School Official page of Form SSA-1372, identified her title as “Home School Counselor.” Thus, we must determine whether Claimant’s home schooling is legitimate under Mississippi law.

As noted above, nonpublic schools in Mississippi include home instruction programs. See Miss. Code Ann. § 37-13-91(2)(i). Mississippi law appears to specify only two requirements for a home school to be legitimate. First, a “legitimate home instruction program shall be those not operated or instituted for the purpose of avoiding or circumventing the compulsory attendance law.” Id. § 37-13-91(3); see Miss. Admin. Code § 7-3:30.7.11 (West 2017). Second, Mississippi regulations require that a parent of a child enrolled in a home school must submit a certificate of enrollment on a yearly basis to the local school attendance officer. See Miss. Admin. Code §§ 7-3:30.7.2, 7-3:30.7.10.

Regarding the first requirement, there is no evidence that Claimant’s home schooling was instituted or is being operated to avoid or circumvent the compulsory attendance law. See id. § 37-13-91(3). In fact, Claimant and her mother reported that Claimant uses textbooks provided by CCA; studies subjects such as English, Math, Word Building, History, Algebra, Bible Study, and Science; completes a set of textbooks in nine weeks and takes written tests; has the ability to obtain help from teachers at CCA; studies at home from 8:00 a.m. to 2:00 p.m., Monday through Friday, for a total of thirty hours per week and eight months per year; and is expected to graduate with a high school diploma from CCA in May 2018.

Regarding the second requirement, Claimant’s mother provided evidence that she submitted a certificate of enrollment to the local school attendance officer. See Miss. Admin. Code §§ 7-3:30.7.2, 7-3:30.7.10. Additionally, because Claimant’s mother acts as Claimant’s home school instructor, she satisfied agency policy by submitting the certificate of enrollment on behalf of Claimant and signing the Certification by School Official page of Form SSA-1372. See POMS RS 00205.275.C. Thus, Claimant’s instruction at home is in accordance with Mississippi’s home school law. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275.

Claimant’s home schooling also meets the standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.001.A; POMS RS 00205.275.B; POMS RS 00205.300.A. Claimant’s mother reported that Claimant studies at home from 8:00 a.m. to 2:00 p.m., Monday through Friday (i.e., thirty hours per week). Additionally, on Form SSA-1372, Claimant reported, and her mother verified, that she studies thirty hours per week and her school year ran for a total of thirty-five weeks. Finally, Claimant is enrolled in a home school administered by her mother, not a correspondence course. See POMS RS 00205.330.A (noting a correspondence school teaches by mailing lessons and exercises to the student, and the student returns the exercises to the school for grading). Thus, Claimant’s home schooling meets the Federal standards for full-time attendance. See Act § 202(d)(7)(A); 20 C.F.R. § 404.367(b), (c); POMS RS 00205.300.C. Claimant’s instruction at home also satisfies the minimal standards and practices set by Mississippi for home schools. See 20 C.F.R. § 404.367(b); POMS RS 00205.275.B.

CONCLUSION

Claimant qualifies as a home school student under Mississippi law for determining her eligibility for CIB as a full-time student.

B. PR 00-505 Mississippi - Home Schooling

Date: March 04, 1992

1. Syllabus

Mississippi recognizes home school programs as educational institutions providing elementary or secondary education under its compulsory attendance and enrollment statutes. No statutory requirements apply to home schools for the testing of students, teacher certification, or curriculum. A school day consists of no fewer than 5 and no more than 8 hours of actual instruction. A school is a public or nonpublic school in session for at least 155 school days each school year. The compulsory-school-age child's parent, guardian or custodian or the appropriate school official of a home school must complete a "certificate of enrollment." The State generally does not regulate or monitor its compulsory attendance and enrollment requirements. SSA should verify enrollment. SSA must also verify attendance, probably independently of State or local school officials.

If the home school's course of study is through a correspondence program, it is necessary to develop further to determine whether the child is enrolled in the correspondence course or whether a parent or instructor receives and uses the correspondence course materials to instruct the student at home.

If the parent or other individual instructs the child using the correspondence program's materials, consider the child enrolled in a home school and eligible for benefits if the parent, guardian or custodian completes the "certificate of enrollment" and if attendance is verified.

If the child is enrolled in a correspondence program and receives instruction only through the mail, evaluate the correspondence course according to the applicable POMS reference.

In all cases the child must also meet federal standards for full-time attendance and all other requirements for payment of benefits.

2. Opinion

Citing 20 C.F.R. §404.367, we advised that while the laws of the state of Mississippi recognized home schools as 'educational institutions' with statutory attendance and enrollment requirements, where a home school was affiliated with a Chicago, Illinois, correspondence school, further investigation would be necessary to determine if the child was actually being taught by a parent or other individual in the home based on the correspondence school's curriculum or whether the child was actually enrolled in the correspondence school and only received instruction through the mail.

Your office has requested our opinion as to the following:

(1) Whether a home schooling situation in Mississippi qualifies under section 202 (d) (7) of the Social Security Act as a school that provides elementary or secondary education as determined under the laws of the State of Mississippi;

(2) What requirements must be followed in home schooling situations; e.g., must specific subjects be taught; must parent/guardian seek written approval from the school board; must the home schooling parent/teacher be certified; are there any specific attendance requirements or verification; is mandatory testing required? And

(3) If a student taught at home under the auspices of a "correspondence school," such as American School, qualifies for student benefits based on home schooling.

Discussion

Section 202 (d) (7) of the Social Security Act provides in pertinent part that:

(A) 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 prescribed by him) in light of the standards and practices of the schools involved

(C)(i) An "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.

Your office has presented a situation where a minor child of high school age, in the state of Mississippi, is receiving instruction at home through a correspondence school headquartered in Chicago, Illinois. Your specific inquiry is whether this "home schooling" would qualify as secondary school education under Mississippi statutes.

Mississippi statutes regarding compulsory school attendance are found at section 37-13-91 which provide as pertinent herein that:

* * *

(2) The following terms as used in this section are defined as follows:

(d) "School day" means not less than five (5) and not more than eight (8) hours of actual teaching in which both teachers and pupils are in regular attendance for scheduled schoolwork.

(e) "School" means any public school in this state or any nonpublic school in this state which is in session each school year for at least one hundred fifty-five (155) school days, except that the "nonpublic" school term shall be the number of days that each school shall require for promotion from grade to grade.

(i) "Nonpublic school" for the purposes of this section shall mean an institution for the teaching of children, consisting of a physical plant, whether owned or leased, including a home, instructional staff members and students, and which is in session each school year. This definition shall include, but not be limited to, private, church, parochial and home instruction programs.

(3) A parent, guardian or custodian of a compulsory-school-age child in this state shall cause such child to enroll in and attend a public school or legitimate nonpublic school for the period of time that such child is of compulsory school age, except . . .

(c) When a compulsory-school-age child is being educated in a legitimate home instruction program.

The parent, guardian or custodian of a compulsory-school-age child described in item (a), (b) or (c) of this subsection, or the parent, guardian or custodian of a compulsory-school-age child attending any nonpublic school, or the appropriate school official for any or all such children attending such school shall complete a "certificate of enrollment" in order to facilitate the administration of this section.

* * *

For the purposes of this subsection, a legitimate nonpublic school or legitimate home instruction program shall be those not operated or instituted for the purpose of avoiding or circumventing the compulsory attendance law.

Since section 37-13-91(2)(i) defines a "nonpublic school" to include home instruction programs, Mississippi does acknowledge that a home instruction program is a school pursuant to State law.

However, we noted that there is a statement from the truant officer for the county where the child applicant lives indicating that Mississippi does not monitor a child's attendance in a home school setting. We contacted the State superintendent's office and raised a question as to how the State determined whether a home school was operated for the purpose of avoiding compulsory attendance laws in violation of Mississippi law. The response was essentially that no investigations were instituted unless a complaint was made. If, as it appears, that there is very little monitoring or enforcement of attendance at home schools in the State of Mississippi, the Social Security Administration (SSA) can investigate and verify a child's attendance information utilizing the statutory provisions for attendance.

There are no statutory requirements placed on home schools in Mississippi with respect to testing of students, teacher certification, or basic curriculum requirements. As noted earlier, while there are compulsory attendance and enrollment requirements, home schooling is acknowledged, but generally unregulated within the State. We also noted that Paragraph 10 of section 37-13-91 states:

Notwithstanding any provision or implication herein to the contrary, it is not the intention of this section to impair the primary right and the obligation of the parent or parents, or person or persons in loco parentis to a child, to choose the proper education and training for such child, and nothing in this section shall ever be construed to grant, by implication or otherwise, to the State of Mississippi, any of its officers, agencies or subdivisions any right as to the control, management or supervision of any private or parochial school or institution for the education or training of children, of any kind whatsoever that is not a public school according to the laws of the State; and this section shall never be construed so as to grant. by implication or otherwise, any right or authority to any State agency or other entity to control, manage, supervise, provide for or affect the operation, management, program, curriculum, admissions policy or discipline of any such school or home instruction program (emphasis added).

The preceding provision essentially allows home schools to operate unregulated and with no monitoring by any officials within the State of Mississippi. Consequently, we are of the opinion that even a home school based on a correspondence course would be considered a school that provides elementary or secondary education in the State of Mississippi and would qualify as a school under section 202(d)(7) of the Social Security Act. We also feel that the SSA probably will have to obtain attendance information from sources other than State or local school officials.

Concurrent with the issues you raised, is a concern we have with respect to how the 'correspondence school' operates. 20 C.F.R. §404.367 provides in pertinent part that:

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

* * *

(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." (emphasis added)

Since the course of study is through a correspondence program, we are of the opinion that further development is warranted to also determine if the child is actually enrolled in the correspondence program and receives instruction through the mail or whether the parent/instructor just receives the subject materials and other information which is then utilized as a resource or guide in instructing the child at home. If the parent or another individual is the actual instructor, then the child can be considered enrolled in a home school and can be found eligible for Social Security benefits (if attendance information is verified).

Footnotes:

[1]

^. All references to 20 C.F.R. are to the 2017 version.