TITLE
5 POST-SECONDARY EDUCATION
CHAPTER
99 DISTANCE EDUCATION
PART 1 PUBLIC AND PRIVATE
POST-SECONDARY INSTITUTIONS OPERATING UNDER THE INTERSTATE DISTANCE EDUCATION
ACT
5.99.1.1 ISSUING
AGENCY: New Mexico Higher
Education Department.
[5.99.1.1 NMAC - Rp. 5.99.1.1
NMAC, 12/11/2018]
5.99.1.2 SCOPE: Provisions of 5.99.1 NMAC apply to public post-secondary
institutions and private post-secondary institutions offering distance education
to any student within New Mexico and the provision of distance education by
participating New Mexico post-secondary educational institutions to students in
other states.
[5.99.1.2 NMAC - Rp. 5.99.1.2
NMAC, 12/11/2018]
5.99.1.3 STATUTORY AUTHORITY: Section 9-25-1 et
seq. NMSA 1978, Section 21-1-26 NMSA 1978 and Section 21-23B-1 et seq. NMSA
1978. The Interstate Distance Education Act (“the act”), Sections 21-23B-1
through 21-23B-6 NMSA 1978 authorizes the New Mexico higher education
department to adopt rules and regulations for the receipt of distance education
by students in New Mexico and the provision of distance education by New Mexico
participating post-secondary educational institutions to students located
outside New Mexico.
[5.99.1.3 NMAC - Rp. 5.99.1.3
NMAC, 12/11/2018]
5.99.1.4 DURATION: Permanent.
[5.99.1.4 NMAC - Rp. 5.99.1.4
NMAC, 12/11/2018]
5.99.1.5 EFFECTIVE DATE: December 11, 2018, unless a later date is
cited at the end of a section.
[5.99.1.5 NMAC - Rp. 5.99.1.5
NMAC, 12/11/2018]
5.99.1.6 OBJECTIVE:
A. Unless expressly exempt pursuant to 5.99.1.10
NMAC, an institution shall obtain distance education authorization from the
department if the institution either:
(1) has a
physical presence in New Mexico and engages in distance education with students
located outside New Mexico; or
(2) engages in distance
education from a location originating outside New Mexico with a student located
in New Mexico.
B. Institutions with a physical presence
in New Mexico engaging in distance education may be subject to:
(1) distance
education authorization pursuant to the Interstate Distance Education Act and
5.99.1 NMAC, unless exempted pursuant to 5.99.1.10 NMAC;
(2) state authorization for private institutions
pursuant to the Post-secondary Educational Institution Act and 5.100.6 NMAC or
5.100.7 NMAC, unless expressly exempted by law and 5.100.5 NMAC; and
(3) authorization
required by laws and regulations of any other state or territory in which a student
is located and engaging in distance education with the institution.
C. Post-secondary educational
institutions must be accredited in order to apply for distance education
authorization under the act.
D. Distance education authorization
does not serve as an endorsement of a particular institution, but certifies
that an institution has met the minimum criteria set by the department to
operate in New Mexico under the Interstate Distance Education Act. An institution authorized by the department
may not use terms such as "accredited," "endorsed," or
"recommended" when referring to authorization by the department.
E. Post-secondary educational
institutions that do not have distance education authorization or do not meet
the criteria for exemption, and are offering distance education from New Mexico
or to students in New Mexico, shall be notified by certified mail that they
shall cease immediately to offer such education until obtaining distance
education authorization or are found to be exempted by the department; the
department shall initiate appropriate legal action if institutions fail to
comply; whoever violates any provision of the act may be assessed a civil
penalty not to exceed five hundred dollars ($500) per day per violation.
[5.99.1.6 NMAC - Rp. 5.99.1.6
NMAC, 12/11/2018]
5.99.1.7 DEFINITIONS:
A. “Accreditation” means a verified
accreditation status with an accrediting agency recognized by the United States
department of education.
B. “Department” means the New Mexico higher
education department.
C. “Distance education” means instruction
offered online or through correspondence or interactive video or other means
enabling a student to receive instruction from a higher education
provider. Instruction may be either
synchronous (instruction in which a group of students engage in learning at the
same time), asynchronous (instruction that does not occur in the same place or
at the same time), or experiential learning activity.
D. “Distance
education authorization” or “DEA”
means a post-secondary institution that has been deemed by the department to
satisfactorily meet criteria, as set by the department, to provide distance
education, under the Interstate Distance Education Act.
E. “Educational activity” means distance
education 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).
F. “Exempt”
or “exemption” means an
institution that meets criteria in
5.99.1.10 NMAC to be exempt from obtaining distance education authorization and
has completed all documentation required by the department.
G. “Experiential
learning activity” means application of previously studied skills through practica, student teaching, clinical placements, research,
internships, or other similar placements by a student receiving supervised field
experience at an experiential learning site.
H. “Experiential learning site” means a clinical, practicum, internship, student
teaching or other similar site location where a student participates in a
supervised field experience.
I. “Higher education” means education or training beyond secondary
education.
J. “Home state” means a state or territory
where the institution holds its legal domicile and accreditation. To operate under the act an institution must
have a single home state.
K. “Non-New Mexico home state SARA institutions” means
an institution which holds its legal domicile and accreditation in a state or
territory in the United States and outside of New Mexico and is an approved
member institution of SARA.
L. “Physical presence” means the ongoing
occupation of a physical location in the state, 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 5.99.1.8 NMAC.
M. “Post-secondary educational institution” or “institution” means public
post-secondary educational institutions and private post-secondary educational
institutions.
N. “Portal
entity” means the state agency or other state body designated by each SARA
member state to serve as the interstate point of contact for SARA questions,
complaints and other communications. In
New Mexico, the portal entity is the department.
O. “Private post-secondary educational
institution” means a post-secondary educational institution not primarily
funded by public funds.
P. “Public post-secondary educational
institution” means a post-secondary educational institution primarily
funded by public funds.
Q. “SARA
Manual” means a manual which codifies existing SARA policy and includes
procedures for use by states and institutions to regulate SARA. A current version of the manual will be
maintained on the NC‐SARA
website.
R. “State
authorization reciprocity agreement” or “SARA” means an agreement,
developed by the national council for state authorization reciprocity agreements
(NC-SARA) that provides uniform standards and parameters for the interstate
provision of post-secondary distance education courses and programs.
S. “State
portal agent” means the portal entity employee responsible for SARA duties.
T. “Student
location” or “students located”
means the physical location in which the student engages in distance education.
The student’s legal state of residence
will not be a criterion for determining the student’s
physical location for purposes of the act.
U. “Supervised field experience” means a
form of distance education which enables instruction from an experiential
learning site, through an agreement with an institution pursuant to 5.99.1.11
NMAC. To be considered supervised field
experience, the student location must be in a different state or territory than
that of the institution.
[5.99.1.7 NMAC - Rp. 5.99.1.7
NMAC, 12/11/2018; A, 12/29/2020]
5.99.1.8 PHYSICAL PRESENCE IN NEW
MEXICO: 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 students to engage in educational activity;
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.
[5.99.1.8 NMAC - Rp. 5.99.1.8
NMAC, 12/11/2018]
5.99.1.9 ACTIVITY THAT DOES NOT
ESTABLISH A PHYSICAL PRESENCE: 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 as defined in 5.99.1.11 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.
[5.99.1.9 NMAC - Rp. 5.99.1.9
NMAC, 12/11/2018]
5.99.1.10 INSTITUTIONS EXEMPT FROM DISTANCE
EDUCATION AUTHORIZATION: An
institution may be granted an exemption from obtaining distance education
authorization, if the institution meets the criteria for exemption, set by the
department. An institution seeking an
exemption shall complete a DEA exemption form, published by the department. An institution shall meet one or more of the
following criteria to be eligible for DEA exemption:
A. the
institution is authorized to operate as a member institution under SARA;
B. the
institution has a physical presence in New Mexico exclusively offering distance
education to students located only in New Mexico;
C. the
department has entered into a reciprocal agreement pursuant to Subsection B of
Section 21-23B-3 NMSA 1978.
D. the
institution offers distance education courses on a military base or vessel, if
enrollment in such courses is limited to active and reserve military personnel
and their spouse or dependents;
E. the
institution has contractual arrangements in New Mexico for course offerings
through consortium agreements (for example an agreement between two or more
institutions to partner and provide program offerings) and has previously
notified the department of the agreement;
F. the
institution is only offering distance education courses as a means of
continuing education units and the units meet the criteria set out by the
professional organization or authority requiring the continuing education; or
G. the
institution is offering supervised field experience pursuant to the parameters
established in 5.99.1.11 NMAC.
H. the
institution is a chartered, nonprofit religious institution whose sole purpose
is to train students in non-degree or degree granting religious or non-secular
courses to prepare them to assume a vocational objective relating primarily to
religion.
[5.99.1.10 NMAC - Rp. 5.99.1.10
NMAC, 12/11/2018; A, 12/29/2020]
5.99.1.11 SUPERVISED FIELD EXPERIENCE: Supervised field experience is a form of
distance education which enables instruction from an experiential learning
site. The experiential learning site
will facilitate student participation in experiential learning activity which
requires application of previously studied skills through practica,
student teaching, clinical placements, research, internships, or other similar placements. The institution and the experiential learning
site must enter into an agreement to facilitate experiential learning activity
for students through use of supervisors, mentors, faculty members or other
qualified professionals employed by the experiential learning site.
A. A
student may participate in a supervised field experience, without the
institution obtaining DEA if the institution certifies the following:
(1) the supervised field experience is part of a program of
study offered by the enrolling institution;
(2) the
experiential learning site has entered into an agreement with the institution
which specifies:
(a) the student will receive oversight by
a supervisor, mentor, faculty member or other qualified professional, located
at the experiential learning site; and
(b) the supervisor, mentor, faculty member or other qualified
professional has a direct or indirect reporting responsibility to the
institution where the student is enrolled;
(3) no greater than 10 students from an individual academic
program will be placed simultaneously at an experiential learning site during a
full-term (quarter or semester);
(4) approval requirements have been satisfied by the applicable
professional licensing agency or board, if the supervised field experience
requires licensure or certification for practice; and
(5) support services and complaint resolution procedures will be
made available to the student, while the student participates in the supervised
field experience.
B. The
department may allow an institution to maintain an exemption from DEA and
increase maximum student placements beyond those in Paragraph (3) of Subsection
A of 5.99.1.11 NMAC if the experiential learning site contains more than one
division, department, or unit, and the institution seeks to place students
within different divisions, departments, or units. If an institution seeks to place more than 10
students at an experiential learning site that contains more than one division,
department, or unit, and maintain eligibility for DEA exemption, the
institution shall file a request with the department detailing the basis of the
increase in maximum student placements. For
the department to consider an increase in maximum student placements beyond
those in Paragraph (3) of Subsection A of 5.99.1.11 NMAC, it will evaluate the
demonstrated ability of the institution and the experiential learning site to
provide adequate learning opportunity and resources to the student. In making its determination, factors
considered by the department shall include, but are not limited to, the
following:
(1) the size of the facility or location of the experiential
learning site;
(2) the number of distinct divisions, departments, or units to
which students will be placed within the experiential leaning site;
(3) whether the divisions, departments, or units engage in
distinct specializations or disciplines;
(4) whether the
number of supervisors, mentors, faculty member or other qualified professionals
available is adequate to provide oversight and fulfill the terms of the
agreement between the institution and the experiential learning site, entered
into pursuant to Paragraph (2) of Subsection A of 5.99.1.11 NMAC; and
(5) overall demand for student placements by all institutions
seeking to establish agreements with the experiential learning site.
C. An institution that seeks to place
more students at an experiential learning site than permitted pursuant to
Paragraph (3) of Subsection A of 5.99.1.11 NMAC and does not obtain express
approval by the department pursuant to Section B of 5.99.1.11 NMAC must obtain
DEA pursuant to 5.99.1.12 NMAC.
[5.99.1.11 NMAC - Rp. 5.99.1.11
NMAC, 12/11/2018]
5.99.1.12 DISTANCE EDUCATION AUTHORIZATION APPLICATION
REQUIREMENTS: Institutions
operating under the act shall apply for distance education authorization unless
exempt pursuant to 5.99.1.10 NMAC. The
department shall promulgate forms and require the institution to meet criteria
as applicable to each of the following sectors:
A. Public
post-secondary educational institutions must submit to department:
(1) a complete distance education authorization application set
out by the department;
(2) certification of compliance with the interregional
guidelines for the evaluation of distance education programs adopted by the
council of regional accrediting commission;
(3) certification of compliance with the western interstate
commission for higher education principles outlined in 5.99.1.20 NMAC;
(4) a surety bond or alternate form of surety in the amount of
twenty percent of the gross New Mexico distance education tuition and fees
revenue;
(5) current accreditation;
(6) proof that the public post-secondary educational institution
has adopted a complaint procedure that complies with the department’s requirements
in 5.99.1.15 NMAC;
(7) certification
that the public post-secondary educational institution has adopted a plan for
records maintenance and retention that complies with the department’s
requirements in 5.99.1.21 NMAC; and
(8) a fully
executed participation agreement with the department.
B. Private
post-secondary educational institutions must submit to the department:
(1) a complete distance education authorization application set
out by the department;
(2) certification of compliance with the interregional
guidelines for the evaluation of distance education programs adopted by the
council of regional accrediting commission;
(3) certification of compliance with the western interstate
commission for higher education principles outlined in 5.99.1.20 NMAC;
(4) a surety bond or alternate form of surety in the amount of
twenty percent of the gross New Mexico distance education tuition and fees revenue,
in no case shall the bond be less than five thousand dollars ($5,000);
(5) current accreditation;
(6) financial responsibility composite score of 1.5 or above as
assigned by the United States department of education in the private
post-secondary educational institution’s most recent fiscal report;
(7) proof that the private post-secondary educational
institution has adopted a complaint procedure that complies with the
department’s requirements in 5.99.1.15 NMAC;
(8) certification
that the private post-secondary educational institution has adopted a plan for
records maintenance and retention that complies with the department’s
requirements in 5.99.1.21 NMAC;
(9) a fully executed participation agreement with the department;
and
(10) for
profit institutions with anticipated New Mexico student gross tuition revenues
of one hundred thousand dollars ($100,000) or more shall submit a letter of
good standing from the office of the secretary of state of New Mexico and proof
of registration with the New Mexico taxation and revenue department.
[5.99.1.12 NMAC - Rp. 5.99.1.12
NMAC, 12/11/2018; A, 12/29/2020]
5.99.1.13 REPORTING FOR DISTANCE EDUCATION
AUTHORIZED INSTITUTIONS:
A. Institutions
granted DEA shall comply with department reporting procedures and submit
institutional information and data on an annual basis using standard forms. Institutions
granted DEA must comply with all reporting deadlines to be eligible for renewal
or to remain in good standing.
B. The
department shall promulgate a standard form for annual reporting to include
curriculum, enrollment, demographic, or other institutional information and
data.
[5.99.1.13 NMAC - Rp. 5.99.1.13
NMAC, 12/11/2018]
5.99.1.14 APPLICABLE DISTANCE EDUCATION AUTHORIZATION FEES AND SURETY BOND:
A. The
department may assess application, administrative, or reporting fees and
publish a fee schedule.
B. The
department shall assess fees for providing services associated with application
review and making determinations of eligibility for DEA.
C. The
department shall assess a fee upon determination that the institution has satisfactorily
met all conditions for DEA.
D. The department shall assess an
administrative fee for filing annual reporting; any costs associated with
specialized review, program changes, and institution or administrative changes
shall be assessed to the institution.
E. Each
institution holding DEA shall maintain in force a surety bond or alternate form
of surety accepted by the department.
(1) The surety bond shall:
(a) be payable to the department;
(b) be in an amount set at twenty percent of the institution’s
projected or actual gross annual New Mexico distance education tuition and fee
revenue;
(c) include the name, office address and phone number of the
issuing company representative; and
(d) allow for the department to draw in order to indemnify any
student damaged as a result of fraud or misrepresentation, as a result of the
institution ceasing operation prior to its students having completed the
programs for which they have contracted, or to pay costs associated with
preservation of student records.
(2) Alternate
forms of surety: An institution may request a waiver from the bond requirement by
providing a request to utilize an alternate form of surety. The request must detail the reasons the
institution is seeking approval to utilize an alternate form of surety and
provide detail regarding the type of surety.
The department may accept or reject a request for alternate surety. The alternate form of surety shall:
(a) be payable to the department;
(b) be in an amount set at twenty percent of the institution’s
projected or actual gross annual New Mexico distance education tuition and fee
revenue;
(c) be in the form of a cash deposit escrow account, irrevocable
letter or credit, or similar alternate form of surety;
(d) include the
name, office address and phone number of the issuing surety representative; and
(e) allow for the department to draw in order to indemnify any
student damaged as a result of fraud or misrepresentation, as a result of the
institution ceasing operation prior to its students having completed the
programs for which they have contracted, or to pay costs associated with preservation
of student records.
F. If
an institution seeks to cancel a surety bond or an alternate form of surety,
written notice must be delivered to the department. The institution may not cancel the surety
bond or alternate form of surety until it has been provided with written
release from the department. If the
institution seeks to maintain or renew DEA, it shall provide the department
with a like surety or acceptable alternative.
[5.99.1.14 NMAC - Rp. 5.99.1.14
NMAC, 12/11/2018]
5.99.1.15 COMPLAINTS UNDER DEA:
A. An
institution shall adopt student complaint procedures which allow students to seek
resolution to complaints or grievances.
Institutions shall retain records that make available the student
complaint received and record of processing the complaint (that comports with
the institution’s policies and procedures for handling grievances or
complaints) for a minimum of three years.
The institution shall have and make available to all students, the
adopted complaint procedure that describes in detail, how students may register
a complaint or grievance, how the institution will investigate the complaint,
and how the institution will attempt to resolve the complaint. Such policies shall at a minimum include the
following components:
(1) requirement that students with complaints or grievances
against an institution first seek to resolve their complaint or grievance
directly with the institution;
(2) a timeframe within which the institution will investigate
and respond to the complainant;
(3) assurance
that the representative of the institution investigating or addressing the
complaint will serve as an impartial representative and is not directly
involved in the subject matter to which the complaint is related;
(4) assurance that no adverse action will be taken against the
complainant for registering the complaint; and
(5) identification
of the higher education department as the agency to be contacted in cases where
a complaint cannot be resolved and include the mailing address, website, and
phone number for the department.
B. The initial responsibility for the
investigation and resolution of complaints resides with the institution. A student not satisfied with the outcome of a
complaint or the institution’s
handling of the complaint process, may submit the complaint to the
department. The department shall not
engage in any complaint resolution procedures unless a student has exhausted
all complaint procedures set by the institution or can demonstrate the
institution’s refusal to utilize its complaint resolution procedures. If the student can demonstrate all complaint
procedures of the institution have been exhausted and the student is not
satisfied with the outcome, the department may help facilitate resolution where
possible, if the complaint contains a question of fact or potentially involves
a violation of or a deviation from policy, regulation, or law.
C. Complaints regarding student grades
or student conduct violations shall be governed entirely by institutional
policy and shall not be reviewed by the department. Complaints containing allegations of fraud,
abuse, or consumer protection violations, rising to the level of violation of
state or federal law, as demonstrated through substantial evidence (evidence of
such weight and quality that it is sufficient to persuade a reasonable person
to support the allegation asserted), shall be reported to law enforcement, the
United States department of education, the institution’s accreditor, or any
other applicable oversight entities.
D. Upon receipt of a student
complaint, the department, shall determine whether the
complaint meets initial criteria, to permit use of the department’s complaint
procedure. The following initial
complaint criteria must be satisfied:
(1) A student must file a complaint
with the department within two years of their last date of enrollment or
incident about which the complaint is made, whichever is latest in time.
(2) The
complaint must be made to the department in writing utilizing the designated complaint
form published by the department. The
student may include supporting documentation or evidence related to the
complaint. The department may request
additional documentation from the student, as needed, to conduct an initial
assessment.
(3) The
complaint must detail and provide evidence that the student has exhausted all
complaint procedures at the institution.
(4) The
complaint must contain a question of fact or question regarding potential
violation of or deviation from policy, regulation, or law.
E. If
the department determines the complaint meets the initial complaint criteria,
it shall serve as an intermediary in attempting to facilitate a resolution or
to obtain information from the institution to eliminate questions of fact or
possible violations or deviations from policy, regulation or law raised by the
complaint. Satisfaction of initial
complaint criteria, in no way means the department has assigned greater weight
to the student’s allegations. If the
department finds that the subject matter of the complaint falls within the
investigatory purview of another entity, it may forward the complaint and cease
further review (for example the office for civil rights).
(1) Acting
as an intermediary, the department shall request a response from the
institution addressing the student’s complaint.
The complaint and any documentation provided by the student shall be
sent to the institution with a request for a written response. The institution shall have 10 days to forward
its response to the department. The
institution may request additional response time, if inquiry into the complaint
requires greater than 10 days. The
institution may provide any supporting documentation or evidence to address
questions or concerns raised by the complaint with its response.
(2) After
considering the institution’s response and any documentation or evidence
supplied by the institution, the department may conduct further inquiry of the
parties or may continue to serve as an intermediary for possible compromise between
the parties. The department may seek
additional clarifying information or supporting documentation from either party
and may request additional response from either party.
(3) If
the institution accepts the desired outcome proposed by the student in the
complaint, the department shall inform the student. If the institution proposes an alternate
desired outcome, the department shall convey such information to the student
and the student shall indicate acceptance or denial of the alternate proposed
outcome, or create a different proposed outcome, to allow for compromise. If at any point, the student and the
institution reach an agreed upon outcome, the department may help facilitate
fulfillment of the outcome, as necessary.
(4) If
the parties are unable to reach a mutually agreeable outcome, the department
may, but is not obligated to, convene a meeting between the parties. Such meetings, if held,
shall be informal and for the purpose of clarifying the facts surrounding the
complaint and to facilitate the parties reaching a resolution or compromise, if
possible. If a meeting is
convened, the department shall give written notice to the institution and to
the student, regarding the time, date, and place of the meeting.
F. The
department may help facilitate a compromised resolution between the
parties. However, if the parties cannot
reach a compromised agreement, the department shall impose an outcome by
weighing the assertions of the parties after careful consideration of all
documents and evidence. The department
may sanction a DEA institution pursuant to 5.99.1.22 NMAC if the department
determines the institution:
(1) failed to resolve a complaint or
comply with the department's efforts to facilitate resolution or conduct
inquiry; or
(2) violated provisions of the DEA participation agreement.
G. If
the department, through its inquiry, has received evidence to support potential
violation of or a deviation from policy, regulation, or law the department may
refer the complaint to either law
enforcement, the United States department of education, the institution’s
accreditor, or any other applicable oversight entities for further
investigation, as applicable to the type of potential violation or
deviation. If the department
determines, at any time, that questions raised by the complaint are alleviated
or the complaint relates to grades or student conduct violations, it shall
cease further inquiry into the complaint and inform the student that the
complaint will be closed with no further action by the department.
[5.99.1.15 NMAC - Rp. 5.99.1.15
NMAC, 12/11/2018]
5.99.1.16 SARA INSTITUTIONS:
A. Non-New Mexico SARA member
institutions providing distance education to students located in New Mexico
shall be governed by rules set forth by the national council for state
authorization reciprocity agreements, the SARA manual, and the applicable
regional compact.
B. If a non-New Mexico SARA member
institution seeks to place students at experiential learning sites in New
Mexico to complete supervised learning experience, the institution must comply
with SARA manual regarding maximum placements for an individual academic
program at one clinical or practicum site. If the institution seeks to exceed placement
limitations in the SARA manual for an individual academic program at one
clinical or practicum site, the institution must notify and seek permission from
the department. Non-New Mexico SARA
member institutions that place students in supervised learning experiences within
New Mexico and exceed the maximum number of placements without department
approval or do not adhere to rules for placements set out pursuant to the SARA
manual, placements may be subject to objection by the department. The department will follow procedures for
objection pursuant to the SARA manual.
If a non-New Mexico SARA member institution seeks to place students from
an individual academic program simultaneously at one clinical or practicum site
within New Mexico in excess of the amount permitted pursuant to the SARA rules,
the department will consider the demonstrated ability of the non-New Mexico
SARA member institutions and the clinical or practicum site to provide adequate
learning opportunity and resources to the student. In making its determination, factors the
department may consider include, but are not limited to:
(1) the size of the facility or location of the experiential
learning site;
(2) the number of distinct divisions, departments, or units to
which students will be placed within the experiential leaning site;
(3) whether the divisions, departments, or units engage in
distinct specializations or disciplines;
(4) whether
the number of supervisors, mentors, faculty member or other qualified
professionals available to provide oversight to fulfill the terms of any agreement
between the institution and the clinical or practicum site;
(5) overall demand for student placements by all institutions
seeking to establish agreements with the clinical or practicum site.
C. New
Mexico home state SARA member institutions providing distance education from New
Mexico shall be governed by rules set forth by the national council for state
authorization reciprocity agreements, the SARA manual, and the western
interstate commission on higher education compact. Application fees for New Mexico home state
SARA member institutions shall be assessed by the department pursuant to
Section 5.99.1.18 NMAC.
[5.99.1.16 NMAC - Rp. 5.99.1.16
NMAC, 12/11/2018; A, 12/29/2020]
5.99.1.17 REPORTING FOR SARA INSTITUTIONS: SARA member institutions shall comply with the
reporting requirements set out by the national council for state authorization
reciprocity agreement.
[5.99.1.17 NMAC - Rp. 5.99.1.17
NMAC, 12/11/2018]
5.99.1.18 APPLICABLE SARA FEES, SURETY BOND
AND INITIAL APPLICATION APPEAL PROCESS: Acting in the capacity of the state portal
entity, the department will assess a non-refundable application fee for SARA
home state applicants and publish a fee schedule. New Mexico home state institutions shall pay
the state application fee prior to application or renewal application review by
the portal entity. The designated New Mexico state portal agent will conduct
the review of initial and renewal applications. If the state portal agent
determines an initial or renewal application should not be approved, the state
portal agent shall review the determination with the portal entity’s general
counsel prior to providing the applicant institution a written reason for
denial. A denial shall not be issued unless the general counsel concurs with
the determination. If the applicant institution believes an eligibility
provision has been misinterpreted or misapplied the institution may
appeal the denial of its initial application within 30 calendar days to the
portal entity’s cabinet secretary. The appeal must be submitted in writing. The
cabinet secretary’s determination will be final and will be communicated in
writing to the applicant institution within 30 days of receipt of appeal. If an
institution is approved by the portal entity to become a SARA member institution,
the institution shall pay fees set out by the national council for state
authorization reciprocity agreements. The
department may require institutions to obtain a surety bond in the amount of
twenty percent of the gross or projected distance education tuition and fees
revenue from students enrolled pursuant to SARA as a condition of SARA membership
approval.
[5.99.1.18 NMAC - Rp. 5.99.1.18
NMAC, 12/11/2018; A, 12/29/2020]
5.99.1.19 COMPLAINTS UNDER SARA:
A. SARA member institutions offering distance
education to a student enrolled under SARA, shall be
subject to the complaint procedures set out in 5.99.1.19 NMAC and the SARA
manual. New Mexico home state SARA member
institutions shall adopt complaint procedures for SARA students to allow SARA students
to seek resolution to complaints or grievances.
The SARA member institution shall have and make available to all enrolled
SARA students, the adopted complaint procedure that describes in detail, how SARA
students may register a complaint or grievance, how the SARA member institution
will investigate the complaint, and how the SARA member institution will
attempt to resolve the complaint. Such
policies shall at a minimum include the following components:
(1) requirement that students with complaints or grievances
against an institution first seek to resolve their complaint or grievance
directly with the institution;
(2) a timeframe within which the institution will investigate
and respond to the complainant, pursuant to the SARA manual;
(3) assurance
that the representative of the institution investigating or addressing the
complaint will serve as an impartial representative and is not directly
involved in the subject matter to which the complaint is related;
(4) assurance that no adverse action will be taken against the
complainant for registering the complaint; and
(5) identification
of department as the New Mexico portal entity to be contacted in cases related
to complaints resulting from distance education courses or activities offered
by New Mexico home state SARA member institutions to students in other SARA
states or territories and include the mailing address, website, and phone
number for the department and the same contact information for other SARA
portal entities.
B. New
Mexico home state SARA member institutions shall retain records that make
available the student complaint received and record of processing the complaint
(that comports with the institution’s policies and procedures for handling
grievances or complaints) for a minimum of three years.
C. The initial responsibility for the
investigation and resolution of complaints resides with the SARA member institution. A student not satisfied with the outcome of a
complaint or the institution’s
handling of the complaint process, may submit the complaint to the
department for review. The department
shall not engage in any complaint resolution procedures unless a student has
exhausted all complaint procedures set by the SARA member institution or can
demonstrate the SARA member institution’s refusal to utilize its complaint
resolution procedures. If the student
can demonstrate all complaint procedures of the SARA member institution have
been exhausted and the student is not satisfied with the outcome, the
department shall administer complaint procedures set out in the SARA manual.
D. Complaints regarding student grades
or student conduct violations shall be governed entirely by institutional
policy and shall not be reviewed by the department. Complaints containing allegations of fraud,
abuse, or consumer protection violations, rising to the level of violation of
state or federal law, as demonstrated through substantial evidence (evidence of
such weight and quality that it is sufficient to persuade a reasonable person
to support the allegation asserted), shall be reported to law enforcement, the
United States department of education, the institution’s accreditor, or any
other applicable oversight entities.
E. Upon receipt of a student
complaint, the department shall determine whether the complaint meets initial
criteria to permit use of the department’s and SARA’s complaint procedures. The following initial complaint criteria must
be satisfied:
(1) A student must file a complaint
with the department within the timeframe set in the SARA manual.
(2) The
complaint must be made to the department in writing utilizing the designated
complaint form published by the department.
The student may include supporting documentation or evidence related to
the complaint. The department may
request additional documentation from the student, as needed, to conduct an
initial assessment.
(3) The
complaint must detail and provide evidence that the student has exhausted all
complaint procedures at the institution.
(4) The
complaint must raise an issue that can be addressed pursuant to the SARA
manual.
(5) The
department is the appropriate portal entity to handle the complaint pursuant to
SARA guidelines.
F. If
the department determines the complaint meets the initial complaint criteria,
it shall administer the SARA complaint procedures set out in 5.99.1.19 NMAC and
the SARA manual. Satisfaction of initial
complaint criteria, in no way means the department has assigned greater weight
to the student’s allegations. If the
department finds that the subject matter of the complaint falls within the
investigatory purview of another entity, it may forward the complaint and cease
further review (for example the office for civil rights).
G. In
conducting investigation of the complaint, the department may request a
response from the SARA member institution addressing the student’s
complaint. The complaint and any
documentation provided by the student shall be sent to the SARA member institution
with a request for a written response.
The SARA member institution shall respond to any inquiry issued by the
department. The SARA member institution
may provide any supporting documentation or evidence to address questions or
concerns raised by the complaint with its response. After considering the SARA member
institution’s response and any documentation or evidence supplied by the
institution, the department may conduct further inquiry or may continue to
serve as an intermediary for possible compromise between the parties. The department may seek additional clarifying
information or supporting documentation from either party and may request
additional responses from either party.
If at any point, the student and the institution reach an agreed upon
outcome, the department may help facilitate fulfillment of the outcome, as
necessary.
H. If
the department has received evidence to support potential violation of or a
deviation from policy, regulation, or law through its inquiry, the department
may refer the complaint to law
enforcement, the United States department of education, the institution’s
accreditor, or any other applicable oversight entities for further investigation,
as applicable to the type of potential violation or deviation. If the department determines, at any
time, that questions raised by the complaint are alleviated or the complaint
relates to grades or student conduct violations, it shall cease further inquiry
into the complaint and inform the student that the complaint will be closed
with no further action by the department.
[5.99.1.19 NMAC - Rp. 5.99.1.19
NMAC, 12/11/2018]
5.99.1.20 WESTERN INTERSTATE COMMISSION FOR
HIGHER EDUCATION PRINCIPLES: Principles of good practice for quality
distance education is an essential component of the department’s agenda for
higher education in New Mexico. The
department endorses the principles of good practice established by the western
interstate commission for higher education (WICHE). It is expected that all distance education
courses and programs meet the following principles:
A. each
program of study results in learning outcomes appropriate to the rigor and
breadth of the degree or certificate awarded;
B. an
electronically offered degree or certificate program is coherent and complete;
C. the
program provides for appropriate real-time or delayed interaction between
faculty and students and among students;
D. qualified
faculty provide appropriate oversight of the program
electronically offered;
E. the
program is consistent with the institution’s role and mission;
F. review
and approval processes ensure the appropriateness of the technology being used
to meet the program’s objectives;
G. the
program provides faculty support services specifically related to teaching via
an electronic system;
H. the
program provides training for faculty who teach via the use of technology;
I. the
program ensures that appropriate learning resources are available to students;
J. the
program provides students with clear, complete, and timely information on the
curriculum, course and degree requirements, nature of faculty/student
interaction, assumptions about technological competence and skills, technical
equipment requirements, availability of academic support services and financial
aid resources, and costs and payment policies;
K. enrolled
students have reasonable and adequate access to the range of student services
appropriate to support their learning;
L. accepted
students have the background, knowledge and technical skills needed to
undertake the program;
M. advertising,
recruiting, and admissions materials clearly and accurately represent the
program and the services available;
N. policies
for faculty evaluation include appropriate consideration of teaching and
scholarly activities related to electronically offered programs;
O. the
institution demonstrates a commitment to ongoing support, both financial and
technical, and to continuation of the program for a period sufficient to enable
students to complete a degree or certificate;
P. the
institution evaluates the program’s educational effectiveness, including
assessments of student learning outcomes, student retention, and student and
faculty satisfaction; students have access to such program evaluation data; and
Q. the
institution provides for assessment and documentation of student achievement in
each course and at completion of the program.
[5.99.1.20 NMAC - Rp. 5.99.1.20
NMAC, 12/11/2018]
5.99.1.21 STUDENT RECORDS:
A. An
institution providing distance education under DEA or that is offering distance
education pursuant to 5.99.1.10 NMAC shall maintain a plan for records
maintenance and retention which may be inspected by the department. The plan shall consist of a records
maintenance and disposal schedule that is in
compliance with the functional records retention and disposition schedule in
1.21.2 NMAC, the records retention schedule set by the department, regulations
of any other authorizing agency, or laws, regulations, and rules of any other
authorizing jurisdiction or territory, whichever is longest in time. If another authorizing agency of the
institution requires a longer period of retention than that of 1.21.2 NMAC, the
longest retention period shall prevail. The plan must include a description of how records
will be maintained in the event of closure, including, but is not limited to,
designation of a custodian of records, digitization, and a process for
obtaining transcripts from the custodian of records.
B. The
institution must maintain at a minimum, the student’s enrollment agreement,
student transcript, or record indicating program completion (either
certificate, diploma, degree, or other like proof of completion), and
student financial aid records.
[5.99.1.21 NMAC - N, 12/11/2018]
5.99.1.22 MONITORING, SANCTIONS, AND
CLOSURE:
A. Any
institution operating pursuant to the act shall be subject to Section 21-23B-5
NMSA 1978.
B. An
institution found in violation of the act may be assessed a civil penalty not
to exceed five hundred dollars ($500) per day per violation.
C. An
institution that does not submit an application for renewal within deadlines
set by the department may have a lapse in DEA.
D. The
department shall provide notification for public viewing on the department’s
website if a distance education authorized institution has been sanctioned or
penalized by their accreditor or the U.S. department of education or has a
lapse in DEA.
E. An institution engaging in
distance education with students located in New Mexico or post-secondary educational
institution located in New Mexico engaging in distance education with a student
located outside of New Mexico, shall not cease
provision of distance education, close, or make a substantial change to
location (a relocation of the institution’s physical site which impacts the
institution’s ability to offer distance education or affects the institution’s
ability to continue to meet the criteria for distance education authorization) without providing notice to the
department and complying with the provisions set out in 5.99.2 NMAC.
[5.99.1.22 NMAC - N, 12/11/2018]
History
of 5.99.1 NMAC:
5.99.1 NMAC - Public And Private Post-Secondary Institutions
Operating Under The Interstate Distance Education Act,
filed 12/16/2017, was repealed and replaced by 5.99.1 NMAC - Public And Private
Post-Secondary Institutions Operating Under The Interstate Distance Education
Act, effective 12/11/2018.