Current through Register Vol. 35, No. 18, September 24, 2024
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.
(g) operating on a military base in New
Mexico and offering educational programs to active military personnel, military
reserve personnel, military veterans, and civilians employed full-time on the
military base and the spouses and dependents of active military personnel,
military reserve personnel, military veterans, and civilians employed full-time
on the military base.
(3)
The Post-Secondary Educational Institution Act does not apply to or affect:
(a) a post-secondary educational institution
that is established by name as an educational institution by the state through
a charter, constitutional provision or other action and is supported in whole
or in part by state or local taxation;
(b) an occupational, trade or professional
school operating pursuant to any New Mexico occupational licensing
law;
(c) a course of instruction
provided by an employer to its own employees for training purposes;
(d) institutions that exclusively offer
education that is solely avocational or recreational in nature;
(e) a course of instruction or study
sponsored by a recognized fraternal, trade, business or professional
organization or labor union for the instruction of its members;
(f) chartered, nonprofit religious non-degree
and degree granting institutions whose sole purpose is to train students in
religious disciplines to prepare them to assume a vocational objective relating
primarily to religion;
(g)
institutions that exclusively offer instruction at any level from preschool
through the twelfth grade;
(h) an
institution funded in full or in part by an Indian tribe or pueblo in the state
of New Mexico; or
(i) an
organization that provides 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 a program of training in employment.
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. 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 unless they meet the criteria for exemption
pursuant to Section
21-23-4 NMSA 1978.
