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May 16, 2017

Law? What Law? SSA Official Thinks You’re Not Homeschooled

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Peter Kamakawiwoole, Esq. PETER KAMAKAWIWOOLE
Staff Attorney

As Home School Legal Defense Association’s lead attorney on Social Security (SSA) issues, I took a keen interest last week when the administration released its “Top 10 Baby Names” for 2016.

The headline-grabber wasn’t a third-straight year for “Noah” and “Emma” atop the lists for boys and girls. It was the rapid rise of “Kylo,” which jumped over 2,368 other boys’ names into the top 1,000.

As an avowed Star Wars fan, I have somewhat mixed feelings about this. Kind of like my feelings regarding the SSA itself.

A Brief Overview

My assistant Sarah and I frequently help homeschooling families who are trying to get Social Security benefits for their children.

Under federal law, dependents of Social Security recipients are also entitled to benefits to help cover the child’s living and educational expenses. But these benefits terminate automatically once the child turns 18, unless the child is still a full-time student.

Homeschool students clearly qualify as “full-time students” if they meet certain requirements. The most basic requirement is that the student is being homeschooled in compliance with the law of the state where he or she lives.

Because homeschool laws differ from state to state, the SSA has more than 50 regulations—including a specific regulation for each state—that give its employees specific direction on how to properly process homeschool students. Every once in a while, the regulations are wrong or outdated, but by and large the administration does a good job getting correct information out to their local and regional offices.

Unfortunately, those offices don’t always take the hint.

Not a Student?

Last week, HSLDA filed an appeal for a homeschooling family in Michigan. SSA told the family that their 18-year-old child wasn’t a “full-time student” because the child wasn’t “attending an elementary or secondary level school which has been approved by a State or local government.”

If you’re not from Michigan, let me give a brief overview of the state’s homeschool law (it’s not complicated). The Michigan Legislature enacted a statute in the late 1980s that gave parents six different alternatives to public school attendance. One of these—the “nonpublic school” option—requires state approval. Another—the “home school” option—does not. The law also says parents who teach their children at home get to choose which option they want (they can even homeschool under both if they wish). It’s right there in the text of the statute.

For some reason, the SSA official who reviewed this family’s claim didn’t look at the statute. Or SSA’s state-specific regulation for Michigan. Or the Michigan Department of Education’s website. Because all of them agree: if a family teaches their children at home under the “home school” option, no state or local “approval” is needed or authorized.

This isn’t the first time this kind of blind denial of benefits has happened, either. In December 2016, HSLDA was successful in persuading this same Social Security office to release almost $8,000 in back-payments to another homeschooling family in Michigan who lost their benefits over “approval.” But it took nearly two years—and the timely intervention of Congressman Mike Bishop—before the office corrected its mistake.

This time, the family has to go before an administrative law judge to plead their case. We’re confident the family will win once the judge reads Michigan law, but the fact that the family even has to resort to a judge is unfortunate. It shouldn’t take months of litigation to clear up something as simple and straightforward as Michigan’s homeschool law.

Not a Dime

Families who are represented by an attorney in Social Security matters usually pay the attorney a portion of any benefits they manage to win. But thanks to the generous support of our members and friends, we are able to help HSLDA families by drawing on our 30-plus years of legal experience with homeschooling in their state, and they don’t part with a dime of their benefits.

If you’d like to partner with us in this important work, you can make a meaningful difference in the lives of other homeschooling families by joining HSLDA or making a donation to the Homeschool Freedom Fund.