TN 29 (04-17)

A. PR 17-061 Eligibility for Student Benefits as a Minnesota Home School Student at the Age of 18 or Older

Date: March 14, 2017

1. Syllabus

Home schools in Minnesota are not education institutions for students older than 17 years of age because they are not recognized as schools other than the compulsory attendance ages and there are no regulatory requirements for them. This opinion supersedes PR 03-043, dated January 31, 2001.

2. Opinion

QUESTION PRESENTED

You asked whether J~ is eligible for student benefits as a home school student at the age of 18 or older. In order to answer this question, we first considered whether home schooling is an educational institution.

For the reasons discussed below, we conclude that home schooling in Minnesota is not an educational institution above age 17, because home schools are not defined as a school as to this age group and there are no home schooling requirements or regulations in state law.

BACKGROUND

The claimant, J~, is seeking child’s insurance benefits (CIB), due to his reported status as a full-time student in home school. His date of birth is October XX, 1997 and he turned 18 years old on October XX, 2015. The agency uses Form SSA-1372-BK as the primary means for determining whether a child is a full-time student at a qualifying educational institution. POMS RS 00205.735. The claimant submitted Form SSA-1372-BK on July XX, 2016, indicating that he attended home school from September 2015 until May 27, 2016 on a full-time basis (25-30 hours per week). Subsequently, he attended Lake Superior College, a technical school, from August 23, 2016, with an anticipated end of the school year in May 2017. J2~, J~’s mother, certified Form SSA-1372-BK. J2~ indicated that the information the claimant provided on the form was correct, and that the home school’s course of study was at least 13 weeks in duration.

DISCUSSION

To qualify for student benefits, a claimant must be at least 18 years old, but under age 19, unmarried, and a full-time elementary or secondary school student at a qualifying educational institution. See 42 U.S.C. § 402(d); 20 C.F.R. §§ 404.350(a)(5), 404.367. If a student attains age 19 in a month while in full-time attendance and has not completed the requirements for, or has not received, a diploma or equivalent certificate from a secondary school, the student is deemed not to have attained age 19. POMS RS 00205.325B. The date the student’s entitlement ends depends on whether the school operates on a yearly basis or on a quarterly or semester basis requiring reenrollment. For schools that operate on a yearly basis, student benefits end the earlier of (1) The first day of the third month following the month in which the student attains age 19; or, (2) The first day of the month after the month the student completes the school year in which is in full-time attendance. POMS RS 00205.325C. Under the POMS, the maximum entitlement period for a student whose school operates on a yearly basis ends at age 19 and 2 months. POMS RS 00205.325C.

In order to qualify as an educational institution for the purposes of awarding student benefits, the school must provide an education “as determined under the law of the State or other jurisdiction in which it is located.” 42 U.S.C. § 402(d)(7)(C)(i); see also POMS RS 00205.200A. Public schools in the United States are assumed to be educational institutions, absent evidence to the contrary, while non-public schools are not assumed to be educational institutions. POMS RS 00205.250B. In order to be eligible for student benefits as a home-schooled student, an individual must be “instructed in elementary or secondary education at home in accordance with a home school law of the State” in which the individual resides. 20 C.F.R. § 404.367. POMS specifies that a home school student can receive benefits if “the law of the State in which the home school is located recognizes home school as an educational institution” and “the home school the student attends meets the requirements of the State law where he or she resides.” POMS RS 00205.275B.

A claimant must also be a full-time elementary or secondary school student in order to qualify for student benefits. The Act defines “full-time elementary or secondary school student” as an individual who is in full-time attendance at an elementary or secondary school. Section 202(d)(7)(a) of the Act; see also 20 C.F.R. § 404.367. To satisfy the “full-time attendance” requirement, a home school student must meet federal standards. POMS RS 00205.275B. To meet the federal standards, the claimant must be enrolled in a non-correspondence course of at least 13 weeks’ duration and be scheduled for attendance at the rate of at least 20 hours per week (with certain exceptions). 20 C.F.R. § 404.367b, (c); POMS RS 00205.300C. The claimant satisfied this requirement because he attended home school for at least 20 hours per week during a non-correspondence course of more than 13 weeks, as he indicated and as his mother certified on Form SSA-1372-BK.

Because the claimant resides in Minnesota, it is also necessary to examine whether Minnesota law recognizes home schools as an educational institution. In Minnesota, all children between the ages of seven and seventeen years of age must receive instruction. Minn. Stat. Ann. § 120A.22(5). Minnesota defines home schools only within the context of compulsory attendance. “For the purposes of compulsory attendance, a ‘school’ means a public school . . . or a nonpublic school, church or religious organization, or a home school in which a child is provided instruction in compliance with [Minn. Stat. Ann. §§] 120A.22 and 120A.24.” See Minn. Stat. Ann. § 120A.22(4) (emphasis added). Minn. Stat. Ann. §§ 120A.22 and 120A.24 apply only within the context of compulsory attendance up to age 17. No other definition of “school” exists in the Minnesota statutes that applies to home schools. Moreover, Minnesota law does not recognize any other purpose for home schools, apart from providing compulsory education. As a result, Minnesota law does not recognize home schools as an educational institution providing elementary or secondary education after age 17. See POMS RS 00205.200.

The lack of any state law requirements for home schooling after age 17 further confirms that home schools are not an educational institution after that age. Minnesota law has requirements for curriculum, instructors, annual assessments and reporting which affect home schools. These requirements are outlined in Minn. Stat. Ann. §§ 120A.22(9), (10), (11) and 120A.24(1)(a), (b). However, these requirements only apply to a child who is required to receive instruction (between ages seven and seventeen) and to instruction that is intended to fulfill that requirement. Minn. Stat. Ann. § 120A.22(2). Nor do any requirements in the administrative code apply to home schools after age 17. Minnesota law does not prescribe any graduation requirements for home school students In contrast to home schools, Minnesota provides educational expectations and graduation requirements for public school students older than 17, and indeed expressly permits the admission of children up to age 21 to an adult high school diploma program. E.g., Minn. Stat. Ann. §§ 120B.02(2); 120B.024. Home schools thus do not provide an education “as determined under the law of the State or other jurisdiction in which it is located.” 42 U.S.C. § 402(d)(7)(C)(i).

We are also persuaded by the regulatory history of 20 C.F.R. § 404.367. In 1996, the Agency expanded student benefits to children enrolled in home schooling or independent study programs authorized by State (or other jurisdiction) laws. 61 Fed. Reg. 38361-01, 38362, 1996 WL 409869 (July 24, 1996). “Many States or other jurisdictions have laws recognizing home schooling. Home schooling is an educational program in which the student is generally taught within the home by a parent/teacher.” 61 Fed. Reg. 38361. The regulation assumes that “The state or other jurisdiction specifies the requirements that must be met and the procedures that must be followed in these situations.” 61 Fed. Reg. 38361, 38362. Further, “[t]he child’s home schooling teacher must submit evidence that legal requirements for home schooling are met.” Id. Such requirements can include a certificate of intent, documentation of state-mandated tests, a list of courses being taught, and a copy of the attendance log or chart. Id. In Minnesota, home schools do not have any requirements that must be met after age 17, including those mentioned in the Federal Register. Accordingly, Minnesota does not recognize home schooling after age 17 as providing an elementary or secondary education at home in accordance with a home school law of the State.” See 20 C.F.R. § 404.367.

We note that this opinion conflicts with previous Legal Precedential Opinions at POMS PR 08005.026 and PS 08005.026. These older Legal Precedential Opinions regarding home schooling in Minnesota, however, were issued under now-obsolete statutes. For example, in 2012, Minnesota clarified that annual achievement testing for children not enrolled in public school applied only to children between ages seven and sixteen. 2012 Minn. Session Laws, Ch. 239, Art. 1, s.2. Thus, we believe that POMS PR 08005.026 and PS 08005.026 should no longer be followed and should be removed from the precedential file.

CONCLUSION

Based on the foregoing, for students older than age 17, we conclude that home schools in Minnesota are not educational institutions, because they are not recognized as schools apart from the compulsory education ages and because there are no regulatory requirements that apply to them. Accordingly, we find that J~ is not eligible for Child Insurance Benefits.

B. PR 03-043 Qualifications for home schools under the laws of the six states in Region V

DATE: January 31, 2001

1. SYLLABUS

Minnesota recognizes home schooling under its compulsory attendance law; however, specific curriculum, instructor and notification requirements must be met.

The instruction must include basic communication skills including reading, writing, literature and fine arts; mathematics and science; social studies including history, geography and government; and health and physical education. The instruction and materials must be in English.

The home school instructor must meet one of the following requirements:

• Hold a valid Minnesota teaching license in the field and grade level taught;

• Be directly supervised by someone with a valid Minnesota teaching license;

• Successfully complete a teacher competency exam;

• Provide instruction in a school accredited by an agency recognized by Minnesota law or by the commissioner;

• Hold a bachelor's degree; or

• Be the parent of a child annually assessed for performance under Minnesota law.

The home school instructor must submit the following information to the superintendent of the district in which the child resides:

• By October 1 of each school year the name, birth date and address of each child receiving instruction;

• The name of each instructor and evidence of compliance with one of the home school instructor requirements;

• A yearly instruction calendar; and

• For a child instructed by a parent who meets only the home instructor requirement of being the parent of a child annually assessed for performance, a quarterly report card on the child's achievement in each subject area.

A nonpublic school accredited by an agency recognized by Minnesota law is exempt from these requirements except for furnishing the name, birth date and address of the child.

In order to determine whether a home school student is carrying a subject load that is considered full-time for day students under standards and practices of the State or other jurisdiction in which he/she resides, it may be necessary to contact the school board to verify the number of days and hours of instruction in the school calendar for the appropriate school district.

In every case, ask the home school instructor to submit evidence that the Minnesota laws are being met.

2. OPINION

In Minnesota, the parent of a child is primarily responsible for insuring that the child acquires knowledge and skills essential for effective citizenship. Minn. Stat. § 120A.22, Subd. 1. A parent is a parent, guardian or other person having legal custody of a child. Minn. Stat. § 120A.22, Subd. 3. All children between the ages of seven and 16 must receive instruction. Minn. Stat. § 120A.22, Subd. 5. For the purposes of the compulsory attendance law, a school is a public school or a nonpublic school, church or religious organization, or a home school where the child is instructed according to the dictates of Minn. Stat. §§ 120A.22 and 120A.24. Instruction must be given in at least the following subject areas: (1) basic communication skills including reading, writing, literature and fine arts; (2) mathematics and science; (3) social studies including history, geography and government; and (4) health and physical education. Minn. Stat. § 120A.22, Subd. 9. Instruction and materials must be in the English language. Id.

A home school instructor must meet at least one of the following requirements:

(1) hold a valid Minnesota teaching license in the field and the grade level taught;

(2) be directly supervised by someone with a valid Minnesota teaching license;

(3) successfully complete a teacher competency exam;

(4) provide instruction in a school that is accredited by an agency recognized according to the dictates of Minn. Stat. § 123B.445, or recognized by the commissioner;

(5) hold a bachelor's degree; or

(6) be the parent of a child annually assessed for performance under the dictates of Minn. Stat. § 120A.22, Subd. 11. Minn. Stat. § 120A.22, Subd. 10. Subdivision 11 provides that each year every child not enrolled in a public school must be performance tested against a nationally norm-referenced standardized achievement test. The district superintendent and the person in charge of the child's instruction must agree on the specific test to be used as well as the administration and location of the test. If the test does not assess all subject areas enumerated in Minn. Stat. § 120A.22, Subd. 9, the parent must assess the child's performance in the applicable subject area(s); this requirement applies only to parents who do not meet the requirements of subdivision 10, clauses 1-3. Minn. Stat. § 120A.22, Subd. 11, clause (b). If the above mentioned tests indicate that the child's performance on the total battery score is at or below the 30th percentile or one grade level below the child's age, the parent is required to obtain additional evaluation of the child's abilities and performance in order to assess whether the child has learning problems. Minn. Stat. § 120A.22, Subd. 11(c).

Minnesota statute § 120A.24 requires the person in charge of providing instruction to a child to submit the following information to the superintendent of the district in which the child resides: (1) the name, birth date and address of each child receiving instruction by October 1 of each school year; (2) the name of each instructor and evidence of compliance with one of the requirements specified in Minn. Stat. § 120A.22, Subd 10; (3) a yearly instruction calendar; and (4) for each child instructed by a parent who only meets the requirement of Minn. Stat. § 120A.22, Subd. 10, clause (6), a quarterly report card on the achievement of the child in each subject area specified in Minn. Stat. § 120A.22, Subd. 9. The person in charge of instructing the child must make available documentation indicating that the subjects required in Minn. Stat. § 120A.22, Subd. 9 are being taught, including class schedules, copies of materials used for instruction and descriptions of the methods used in assessing performance. Minn. Stat. § 120A.24, Subd. 2. A nonpublic school, person or other institution which is accredited by an agency recognized according to Minn. Stat. § 123B.445, or the commissioner, is exempt from the above listed requirements of Minn. Stat. § 120A.24, except for reporting the name, birth date and address of the student to the superintendent. Minn. Stat. § 120A.24.

CONCLUSION

These are the current requirements for home schooling in each of the six states in our region.