TN 1 (06-14)

A. PR 14-077 Esther – Entitlement to Student Benefits on the Record of Number Holder Frederick Based Status as a Full-Time Student at a Secondary School - Home Schooling in Ontario Canada

DATE: April 17, 2014

1. SYLLABUS

SSA verifies all pertinent periods of FTA of students outside the United States before a determination is made on the claimant's entitlement to student benefits. In some countries (e.g., Italy, Germany and some parts of Canada), secondary schools can provide education beyond the grade 12 (or year 12) level. Thus, a student can be attending an EI and not be considered in FTA because his or her attendance is at a level above grade 12. The school determines the student's grade or level of education. How many or how few years it took to reach that level is immaterial. If the school considers a student who is repeating grade 12 to be in grade 12, then SSA considers that student to be in grade 12.

2. OPINION

QUESTION PRESENTED

Whether Esther, who was homeschooled in Ontario, Canada until her enrollment in a university, can be considered a full-time student at a secondary school for the period from October 2012 through June 2013 and therefore entitled to student benefits on the record of her father, Frederick (the NH).

OPINION

Ontario, Canada, the law of the jurisdiction in which the home school is located, recognizes Esther’s home school as an educational institution (Educational Institution) and Esther’s home school meets the requirements for a home school program under Ontario law. Furthermore, Esther meets the requirements for full-time attendance. Therefore, she may be considered a full-time secondary school student for the period from October 2012 through June 2013.

BACKGROUND

Esther was born on October, and is the daughter of the NH. The NH filed for retirement benefits on July 25, 2012, with a month of eligibility of August 2012. On his retirement application, the NH listed Esther as his child. Esther was home schooled by her mother at their home in Ontario, Canada, for 25 hours per week, plus homework assignments, and she completed her secondary-school requirements in June 2013. Her homeschooling followed a set curriculum. After successfully completing equivalency tests in mathematics, English, and other subjects, Esther enrolled at Masters College and Seminary in Peterborough, Ontario.

Analysis

1. Social Security Laws, Regulations, and Policy

   Under the Social Security Act (Act), an individual may continue to receive child’s benefits past the age of 18 if she is a full-time elementary or secondary school student. See 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); Program Operations Manual System (POMS) RS 00205.275; RS 00205.285; 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 be in full-time attendance in a non-correspondence course of at least 13 weeks duration and 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); POMS RS 00205.275; POMS RS 00205.300. The regulations also require that the student be scheduled to attend at least 20 hours per week in order to meet the requirements of full-time attendance. 20 C.F.R. § 404.367(b).

   POMS sets forth the analysis for determining if student benefits are payable to a home-schooled student:

   • The law of the State in which the home school is located recognizes the home school as an Educational Institution;

   • The home school the student attends meets the requirements of State law where the student resides;

   • The student meets the Federal standards for full-time attendance set out in POMS RS 00205.300C; and

   • The student meets all the other requirements for benefits.

   POMS RS 00205.275. An Educational Institution 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. The Federal standards for full-time attendance require that the student is (1) scheduled for attendance at the rate of at least 20 hours per week; (2) enrolled in a course that is not a correspondence course; and (3) enrolled in a course of study that is of at least 13 weeks’ duration. POMS RS 00205.300C.

   State Laws and Guidelines

   Whether her home schooling is sufficient for Esther to be considered a secondary student is an issue analyzed under the laws of Ontario, Canada, the jurisdiction in which Esther resided during the relevant time period. See 20 C.F.R. § 404.367(a)(1); POMS RS 00205.275. Under Ontario law, section 21(2)(a) of the Ontario Education Act (OEA) provides that “a child is excused from attendance at school if the child is receiving satisfactory instruction at home or elsewhere.” See OEA, R.S.O., ch. E 2, § 21(2)(a) (1990); see also The Ontario Federation of Teaching Parents, Homeschooling Frequently Asked Questions (Homeschooling FAQ), available at http:// http://ontariohomeschool.org/faq.shtml (last visited February 15, 2014). The OEA does not define “satisfactory instruction,” nor does it specify any authority to make that determination. See id. The Ministry of Education, however, issued Policy/Program Memorandum No. 131 in June 2002, which directed local school boards to accept a family’s letter of intent to homeschool as sufficient evidence that a student’s parents were providing “satisfactory instruction.” Id .; see also Ontario Ministry of Education, Policy/Program Memorandum No. 131 (Memorandum 131), available at http://www.edu.gov.on.ca/extra/eng/ppm/131.html (last visited February 15, 2014). Memorandum 131, however, is only a statement of policy and is not legally enforceable; the only legal authority governing homeschooling in Ontario is section 21(2)(a) of the OEA. See Homeschooling FAQ. Furthermore, Memorandum 131 is intended to “provide[] direction to school board and schools concerning policies related to home school and the excusing of children from school who are receiving home schooling,” and is not directed towards parents. See Memorandum 131. Therefore Ontario families are not required under the law to register with any government body in order to homeschool. See Homeschooling FAQ. Nor are parents required to follow any particular curriculum while homeschooling their children. See id.

2. Esther Was a Full-Time Secondary School Student Under the OEA During the Relevant Time Period.

   1. Ontario Law Recognizes the Home School as an Educational Institution and the Home School Esther Attends Meets the Requirements of Ontario Law.

      Ontario law requires only that a student receive “satisfactory instruction at home or elsewhere.” It does not require a particular curriculum to be followed or that the student register with any government body in order to home school. Based upon the information provided, Esther was instructed at home by her mother in a variety of subjects. Additionally, the curriculum used by the Glovers for home schooling followed “grade school and high school curricula,” according to a statement from the NH. Additionally, Esther successfully completed equivalency tests in mathematics, English, and other subjects for the college admissions process. Because this instruction satisfies the Ontario homeschooling law, Esther’s home school is an Educational Institution and the home school Esther attends meets the requirements of Ontario law.

   2. Esther Meets the Requirements for Full-Time Attendance.

      Esther has established that she meets the requirements for full-time attendance. Under the regulations, Esther must be “carrying a subject load which is considered full-time for day students under standards and practices set by” Ontario. 20 C.F.R. § 404.367(b). As noted above, there are no curriculum requirements for home-schooled students under the Ontario Education Law. It would appear, therefore, that Esther’s home schooling “meets the requirements of Ontario law. Further, Federal standards for full-time attendance require that the student is (1) scheduled for attendance at the rate of at least 20 hours per week; (2) enrolled in a course that is not a correspondence course; and (3) enrolled in a course of study that is of at least 13 weeks' duration. POMS RS 00205.300C.

      The information provided to us states that Esther was homeschooled for 25 hours per week, not including homework assignments. Thus, she attended school at least 20 hours per week. 20 C.F.R. § 404.367(c); POMS RS 00205.300C. Further, she was not enrolled in a correspondence course. 20 C.F.R. § 404.367(b); POMS RS 00205.300C. Finally, her course of study for the relevant period lasted from September 4, 2012 through June 26, 2013, and included the following subjects: Advanced Mathematics, Marine Biology, Grammar (Grade 12), Creative Writing, and Literature.

CONCLUSION

In sum, it is our opinion that Esther’s home school is an Educational Institution meeting the requirements for a home school program under Ontario law. Furthermore, Esther meets the requirements for full-time attendance. Therefore, Esther can be considered a full-time secondary student for the time period at issue.

B. PR 09-076 Roots Home School Program in Alberta Canada

DATE: March 23, 2009

1. SYLLABUS

The legal opinions from PR 07905.000 or PR 08005.000 indicate a home school is a recognized educational institution (EI) in the State in which the home school is located. However, we were unable to locate a pertinent legal opinion regarding home schools outside the Untied States. CFR 404.367(a) (1), “When you are a full-time elementary or secondary school student,” states “You are instructed in elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which you reside.” Therefore, a legal opinion regarding the Roots Home School Program based on the law “other jurisdiction in which you reside” and whether or not it meets the criteria for an educational institution was obtained. The Roots Home School Program is located in Alberta, Canada.

2. OPINION

QUESTION PRESENTED

1) Does the Roots Home School Program meet the criteria for an Educational Institution (EI)? 2) Is the enrolled child, Spencer, eligible to receive student's benefits?

RESPONSE:

For the reasons that follow, we conclude that the Roots Home School Program qualifies as an EI; Spencer, however, is ineligible to receive student benefits for the 2006-2007 school year.

FACTUAL BACKGROUND

Spencer was born on May. He was home taught in Alberta, Canada for the 2006-2007 school year under the Roots School Homeschooling Program of the Trinity Church. The letter from the Roots School Homeschooling coordinator indicates that the Roots School is recognized under the Alberta Home Education Regulations and Policy. Section 1 of Alberta's School Act includes home education in its definition of schooling. http://www.qp.gov.ab.ca/documents/Regs/2006_145.cfm?frm_isbn=0779748387

The Alberta Department of Education recognizes parents' right to home school their children, provided the parents notify the local school board or accredited private school of the intent to home school. The school authority that accepts the parents' notification is called the associate school authority and has the responsibility to provide the parents with support. In this instance, the Trinity Christian School accepted Spencer's parents' notification. With the parents, the associate school authority must ensure that the child meets the parents' educational goals. http://education.alberta.ca/parents/choice/homeeducation.aspx

Analysis

The Social Security Act provides that every child of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, shall be entitled to a child's insurance benefit if the child is unmarried and either has not attained the age of 18 or is a full-time elementary or secondary school student and had not attained the age of 19. 42 U.S.C. §402(d)(1)(B)(i). An elementary or secondary school is a school that provides elementary or secondary education, respectively, as determined under the laws of the State or other jurisdiction in which it is located. 42 U.S.C. § 402(d)(7)(C)(i). Any education provided, or to be provided, beyond grade 12 is to be disregarded from the consideration of a “full-time elementary or secondary school student” or “full-time attendance at an elementary or secondary school”. 42 U.S.C. § 402(d)(7)(C)(ii).

The regulations explain that a child is a full-time elementary or secondary school student if he meets the following conditions: 1) attendance in a school that provides elementary or secondary education as determined under the law of the State or other jurisdiction in which it is located (this includes elementary or secondary education at home in accordance with a home school law of the State or other jurisdiction in which the child resides), 2) full-time attendance in a day or evening non-correspondence course of at least 13 weeks duration and carrying a subject load which is considered full-time for day students under the institution's standards and practices (a home schooling program must carry a subject load which is considered full-time for day students under standards and practices set by the State or other jurisdiction in which the child resides), and 3) in attendance at the rate of at least 20 hours per week. 20 C.F.R. § 404.367(a).

The POMS provide additional guidance. 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 Section RS 00205.200. A student in a home school program is eligible for student benefits if he meets the full time attendance requirements, the laws of the State in which the home school is located recognize the home school as an EI, the home school meets the requirements of State law in which the home school is located, and the student meets all the other requirements for benefits. POMS Section RS 00205.275. A foreign school can qualify as an EI, provided it is part of the elementary or secondary school system in that country or a facility approved or authorized by the educational authorities in that country to provide elementary or secondary education. POMS Section RS 00205.700. Some foreign secondary schools provide education beyond grade 12 (or year 12). In these cases, a student cannot be eligible for student benefits as attendance beyond grade 12 is not full-time attendance for SSA purposes. POMS Section RS 00205.730.

Spencer's home school program, therefore, is duly recognized by the jurisdiction of Alberta, Canada and, thus, satisfies the criteria for an EI. Your memo raised concerns about the lack of a definitive curriculum outline and that the parents are given the framework and decide what is taught and the materials that are to be used. The Alberta Home Education Handbook specifies that it is the responsibility of the parents to decide which courses from the Alberta Programs of Study will be followed, if any. The associate school authority then reviews the program plan and provides the parent with a written acceptance or rejection of the proposed home education program. The curriculum does, therefore, seem to be definitive in that it is agreed upon by parents and the associate school based on the generalized curriculum for all Alberta students.

The deciding factor, with respect to Spencer, is the full time attendance requirements up to grade 12. The submitted material shows that the school year for September 3, 2005 to June 30, 2006, comprised grade 12 and that the school year from September 6, 2006 to June 30, 2007, constituted grades 12 and 13. The Act disregards any education beyond grade 12. 42 U.S.C. § 402(d)(7)(C)(ii); POMS Section RS 00205.730. Because Spencer's home school attendance from September 2006 to June 2007 extended beyond grade 12, he is ineligible to receive student benefits for that year.

CONCLUSION

The Roots Home School Program does meet the criteria for an EI based on the laws of the “other jurisdiction” in which Spencer resides. Since his academic level for the 2006-2007 school year went beyond grade 12, Spencer is ineligible to receive student benefits for that period.