New Mexico Register / Volume XXIX, Issue 23 / December 11,
2018
This
is an amendment to 5.100.5 NMAC, Sections 3, 6, 7 and 8 effective 12/11/2018.
5.100.5.3 STATUTORY AUTHORITY:
Section 9-25-1 et seq. NMSA 1978, Section 21-1-26 NMSA 1978 and
Section 21-23-1 et seq. NMSA 1978.
The Post-Secondary Educational Institution Act, Section 21-23-1
et seq. NMSA 1978 authorizes the New Mexico higher education department
(“department”) to establish standards to exempt post-secondary educational
institutions from the act while operating in New Mexico.
[5.100.5.3
NMAC - N, 12/26/2017; A, 12/11/2018]
5.100.5.6 [OBJECTIVES AND GENERAL PRINCIPLES] OBJECTIVE:
A. Each private post-secondary
institution with a physical presence in New Mexico shall be classified by the
department as either subject to or exempt from provisions of the Post-Secondary
Educational Institution Act ("the act").
(1) Engaging in one or more of the following activities constitutes a physical presence in New Mexico:
(a) ongoing occupation of a physical location in the state;
(b) maintenance of an administrative office to support the
provision of higher education instruction;
(c) establishing a physical location for instruction which is
synchronous (instruction in which a group of students engage in learning at the
same time) or asynchronous (instruction that does not occur in the same place
or at the same time);
(d) requiring students to physically meet in a location for
instructional purposes more than twice per full-term (quarter or semester)
course for a total of more than six hours;
(e) establishing an administrative office;
(f) providing student support services to enrolled students,
from a physical site operated by or on behalf of the institution in the state;
(g) obtaining office space for instructional or
non-instructional staff;
(h) maintaining a mailing address or phone exchange in New
Mexico;
(i) holding
proctored exams on behalf of the institution in New Mexico more than twice per
full-term (quarter or semester); or
(j) facilitating student participation in off-campus field trips
in New Mexico for academic purposes in excess of 20 classroom hours in one six‐month
period or in which the institution establishes a residential or instructional
facility in New Mexico.
(2) The
following is a non-exhaustive list of activities, which if conducted by the
institution, will not trigger a physical presence in New Mexico:
(a) advertising to students whether through print, billboard,
direct mail, internet, radio, television or other medium;
(b) maintaining a server, router or similar electronic service
device housed in a facility that otherwise would not constitute physical
presence (the presence of a server or similar pass-through switching device
does not by itself constitute the offering of a course or program in the
state);
(c) having
faculty, adjunct faculty, mentors, tutors, recruiters or other academic
personnel residing in New Mexico and working from their homes or another
private, non-institutional site, provided that such staff is not engaged in
activities that would otherwise constitute physical presence;
(d) using recruiters in New Mexico if the recruiter has
registered as an agent pursuant to Section 21-24-1 through Section 21-21-9 NMSA
1978;
(e) independent
off-campus study or research by students including, independent fieldwork for a
thesis or dissertation, by individual students not engaged in a supervised
field experience under 5.99.1 NMAC and with no supervision or control by the
student’s institution; or
(f) facilitating student participation in off-campus field trips
in New Mexico for academic purposes, so long as the field trip does not exceed
more than 20 classroom hours in one six‐month
period, or the establishment of a residential or instructional facility by the
institution in New Mexico.
B. A post-secondary educational
institution is subject to the act unless expressly exempted by the
department. Post-secondary educational
institutions or programs shall apply to the department to receive formal
exemption status. [Such] Exempt institutions may use the term
“exempt” but may not refer to their status with the department using terms such
as "authorized," "accredited," "licensed,"
"approved," or "endorsed."
C. Post-secondary educational
institutions that do not have state authorization or have not been granted
express exemption by the department, and meet the definition of physical
presence in New Mexico, shall be notified by certified mail that they shall
cease immediately to offer instruction until they obtain a state authorization
or exemption from the department; the department shall initiate appropriate
legal action if post-secondary educational institutions fail to comply; whoever
violates any provision of Sections 21-23-1 et seq. NMSA 1978 of the
Post-Secondary Educational Institution Act may be assessed a civil penalty not
to exceed five hundred dollars ($500) per day per violation.
D. An exemption
status shall in no way constitute state authorization. Therefore, references to the department shall
not be used in any advertisements, brochures, etc. without written consent of
the department.
E. Non-accredited private
post-secondary educational institutions that offer a degree program shall not
be granted exemption.
[5.100.5.6
NMAC - N, 12/26/2017; A, 12/11/2018]
5.100.5.7 DEFINITIONS:
A. “Accreditation” means a verified
accreditation status with an accrediting agency recognized by the United States
department of education that accredits institutions, as a means of assuring
quality instruction.
B. “Avocation or recreation” means an activity taken up in addition to one's regular work or
profession, usually for enjoyment; a hobby.
C. “Career school” means a private post-secondary educational institution offering a formal educational curriculum in New Mexico for a fee to members of the general public beyond compulsory school age, terminating in a certificate, diploma, associate degree, or comparable confirmation of completion of the curriculum.
D. “Charter” means a formal document
by which a sovereign authority or a government grants rights, powers, and
privileges to a person, business, or the people.
E. “College” or “University” means a private post-secondary educational
institution offering a formal educational curriculum in New Mexico for a fee to
members of the general public beyond compulsory school age, terminating in a baccalaureate
degree, master's degree, or doctoral degree or comparable confirmation of
completion of the curriculum.
F. “Continuing education” means only brief
courses of instruction designed to teach specific skills that may be applicable
in a work setting but are not sufficient in themselves
to be considered a program of training for employment. Typically, a student only enrolls for one
course rather than a sequence of courses.
The continuing education units must meet the criteria set out by the
professional organization or authority requiring the continuing education.
G. “Department” means the New
Mexico higher education department or its designated employee.
H. “Degree” means any title, designation,
mark, abbreviation, appellation, or series of letters or words, including
“associate”, “bachelor's”, “master's”, “doctor's” and their equivalents, which
are generally taken to signify satisfactory completion of the requirements of a
program of study designed to be comparable to those provided by institutions
accredited by agencies recognized by the United States department of education.
I. “Degree-granting” means a
post-secondary educational institution that offers instruction resulting in a
credential as defined by “degree.”
J. “Exemption” or “exempt” means a written acknowledgment by the department that an
institution, organization, or other entity, has met requirements and filed
pertinent information as required by the department to provide educational
services in New Mexico, and is not subject to the post-secondary educational
institution act.
K. “Instruction provided by employer” means
only a brief course of instruction designed to teach specific skills that may
be applicable in a work setting or as professional development but are not
sufficient in themselves to result in a credential.
L. “License”, “Licensed” or “Licensure” means
a written acknowledgment by the department that a career school or nonregionally accredited college or university has met the
requirements of the department [for offering] to offer a formal
educational curriculum within New Mexico;
M. “Physical presence” means the
ongoing occupation of a physical location in the state [for], [or]
the ongoing maintenance of an administrative office to support, the provision
of higher education instruction, or engaging in one or more of the
activities detailed in Paragraph 1 of Subsection A of 5.100.5.6 NMAC.
N. “Post-secondary educational
institution” or “Institution” or “post-secondary
institution” means
an academic, vocational, technical, business, professional, or other school,
college, or university or other organization or person offering or purporting
to offer courses, instruction, training, or education.
O. “Registration” or “Registered” means a written acknowledgment by the
department that a regionally accredited college or university has filed
pertinent curriculum and enrollment information, as required by the department,
and is authorized to operate [a private post-secondary educational
institution] and offer a formal educational curriculum within New
Mexico.
P. “State
Authorization”
means a private post-secondary educational institution has been deemed
by the department to satisfactorily meet [satisfactory] criteria,
as determined by the department, for registration or licensure under the [post-secondary
educational institution act] Post-Secondary Educational Institution Act. All degree-granting institutions seeking
state authorization shall be accredited or be seeking appropriate external
accreditation. State authorization [is not an endorsement of the institution
by the department] does not serve as an endorsement of a particular
institution, but confirms that an institution has met the minimum criteria set
by the department to operate in New Mexico.
[5.100.5.7 NMAC - N, 12/26/2017;
A, 12/11/2018]
5.100.5.8 GENERAL STANDARD
FOR OBTAINING EXEMPTION STATUS BY THE DEPARTMENT:
A. The department shall provide an
application form and assess an administrative fee to provide a formal exemption
status. The department has the sole
discretion to determine whether an institution meets the criteria for exemption
status pursuant to Section 21-23-4 NMSA 1978 and 5.100.5 NMAC. If the department determines that an institution
does not meet the criteria for exemption, the department may require the
institution to apply for state authorization.
B. The exemption status will be valid
for a term of five years from the date that the department makes the final
determination.
C. As a condition of exemption, all
post-secondary educational institutions shall agree to comply with Section
21-23-15 NMSA 1978 and 5.100.8 NMAC in the event of institutional
closure.
D. An exempt institution shall provide the
department with immediate written notification of any changes or events that
may trigger the whole or part of the claim for exemption application to be
untrue. In no case shall a change be
made without an acknowledgement from the department. An institution shall provide the department
with notification in no less than 90 days prior to the proposed changes going
in effect.
[5.100.5.8
NMAC - N, 12/26/2017; A, 12/11/2018]