New York Codes, Rules and Regulations
Title 8 - EDUCATION DEPARTMENT
Chapter I - Rules of the Board Of Regents
Part 3 - University Of The State Of New York; State Education Department
Diplomas and Degrees
Section 3.59 - Authorization of an independent/not-for-profit higher education institution to offer programs leading to postsecondary degrees

Universal Citation: 8 NY Comp Codes Rules and Regs § 3.59

Current through Register Vol. 46, No. 39, September 25, 2024

(a) Definitions. For purposes of this section only:

(1) Institution means an independent/not-for-profit institution of higher education whose corporate purpose includes the provisional or permanent authorization to offer postsecondary curricula registered pursuant to Part 52 of this Title, leading toward any one or number of the undergraduate and/or graduate degrees set forth in Section 3.50 of this Title. Authorization to operate as an independent/not-for-profit institution must be provided through the issuance of a charter by the Board of Regents pursuant to Sections 3.21 or 3.22 of this Title, as applicable. In rare circumstances, Regents authorization to operate as an independent/not-for-profit institution may be provided through the Consent of the Commissioner to an amendment to the corporate purposes of an existing corporation, which holds a certificate of incorporation or has been formed under the not-for-profit corporation laws of New York State.

(2) Provisional authorization means authorization to offer postsecondary curricula registered pursuant to Part 52 of this Title, leading toward any undergraduate and/or graduate degree(s) set forth in Section 3.50 of this Title. An institution granted provisional authorization shall have all the powers, privileges, and obligations that it would have under permanent authorization, except it shall not have the power to confer degrees.

(3) Permanent authorization means institutional authorization to offer curricula registered pursuant to Part 52 of this Title, with all the powers, privileges, obligations of an institution that is granted an absolute charter pursuant to Section 3.21 of this Title, including the authority to confer specific degrees set forth in Section 3.50 of this Title.

(4) Satisfactory, sufficient, effective, and reasonable likelihood means satisfactory, sufficient, effective, and reasonable likelihood respectively in the judgment of the Commissioner.

(b) General requirements. Commencing on April 1, 2018 and during periods in which the Department is accepting new applications for institutions seeking to offer degree programs in New York State, an applicant must apply and obtain provisional authorization to operate an institution in New York State from the Board of Regents for a period of up to five years, in accordance with the requirements of subdivision (c) of this section, prior to obtaining permanent authorization. Applicants seeking provisional or permanent authorization under this section must provide the Department with satisfactory evidence of the following:

(1) need for each degree program that the institution seeks to offer in New York based upon demand by students and/or employers and/or need of society for such programs, in accordance with section 137 of chapter 82 of the laws of 1995;

(2) a New York State-based governing board that has final responsibility for and control over the New York institution, independent from any parent institution, and such board has experience operating an educational institution or other business or enterprise in an effective manner which demonstrates their capacity to operate an institution under this section;

(3) capacity to operate as an institution in compliance with the Education Law, the program registration standards set forth in Part 52 of this Title and other federal and state statutes, regulations, and policies related to the operation of an institution;

(4) financial resources to ensure satisfactory conduct of proposed degree programs, achievement of its institutional mission, and proposed educational goals;

(5) performance outcomes that demonstrate that the institution and/or programs it operates are effective, where applicable; and

(6) that the institution, including but not limited to individuals governing and administering the institution have a record free from evidence suggesting fraudulent and/or deceptive practices, including but not limited to misleading or misrepresentation in advertising.

(1) Initial Review. A written application based on the criteria set forth in subdivision (b) of this section, and including the fees set forth in subdivision (e) of this section, shall be submitted to the Department in a timeframe and manner prescribed by the Commissioner. Properly submitted applications shall be reviewed by the Department to determine whether the application demonstrates sufficient initial evidence of meeting the requirements set forth in subdivision (b) of this section.

(i) For those written applications that demonstrate sufficient initial evidence of meeting the requirements set forth in subdivision (b) of this section the Department shall notify the applicant in writing, and the applicant shall be subject to the secondary review procedures set forth in subdivision (c)(2).

(ii) For written applications that do not demonstrate sufficient initial evidence of meeting the requirements set in subdivision (b) of this section, the application shall be closed without further action. The Department shall provide the applicant with the reasons for its decision in writing. The applicant may appeal the Department's decision to the Commissioner, within 10 days of the date of the Department's decision, and may submit additional information in support of its position in a timeframe determined by the Commissioner. Applicants whose applications are closed may submit a new application pursuant to subdivision (c)(1) of this section no earlier than one year after the Department's final determination to close the application.

(2) Secondary Review. For applications that meet the provisions of subdivision (c)(1)(i):

(i) The Department shall review any available information concerning the applicant, including but not limited to information related to financial resources, academic quality and performance outcomes and consumer protections.

(ii) The Department may cause the applicant to undergo an in-person capacity interview and a site review, if additional information is needed to determine if the applicant has satisfactorily met the requirements in subdivision (b) of this section, and may require the applicant to provide additional reports and/or information based on the findings from such review.

(iii) The Department shall conduct a canvass in accordance with Section 137 of Chapter 82 of the laws of 1995.

(3) Determination. For applicants that have completed the procedures set forth in subdivision (c)(2) of this section, the Deputy Commissioner shall consider the information obtained during the Department's review of the application during the initial and secondary review, including in-person interviews and any site visits, and make a determination as to whether to recommend to the Commissioner and Board of Regents that the applicant be granted provisional authorization.

(i) If the Deputy Commissioner determines the applicant meets the requirements set forth in subdivision (b) of this section, the Deputy Commissioner shall make a recommendation to the Commissioner and Board of Regents to grant provisional authorization. At a regularly scheduled public meeting, the Board of Regents shall consider the Deputy Commissioner's recommendation and make the determination on whether to grant the applicant provisional authorization.

(ii) If the Deputy Commissioner determines the applicant does not meet the requirements set forth in subdivision (b) of this section, the application shall be closed without further action. The Deputy Commissioner shall provide the applicant with the reasons for the decision in writing. The institution may appeal the Deputy Commissioner's decision to the Commissioner, within 10 days of the date of the Deputy Commissioner's decision, and may submit additional information in support of its position in a timeframe determined by the Commissioner. If an application is closed, a new application may be submitted no earlier than one year after the final determination to close the application.

(4) Progress toward permanent authorization. An institution that receives provisional authorization shall maintain satisfactory evidence that it meets the requirements set forth in subdivision (b) of this section.

(i) At the Department's request, the institution shall provide the Department with information and reports concerning its performance and demonstration of progress toward meeting the requirements for permanent authorization as set forth in subdivision (d) of this section.

(ii) At least 12 months prior to the end of the provisional authorization period, the institution shall apply to the Department for permanent authorization, in accordance with the requirements of subdivision (d) of this section. An institution that fails to apply for permanent authorization within 12 months prior to the end of its provisional authorization period shall not be eligible for permanent authorization and its provisional authorization shall expire at the end of its provisional period, except in rare circumstances as determined by the Commissioner.

(d) Permanent Authorization.

(1) An institution with provisional authorization shall submit to the Department, in a form and timeframe prescribed by the Commissioner, a written application for permanent authorization and satisfactory evidence that it met the requirements set forth in subdivision (b) of this section throughout its provisional period.

(2) The Department may cause the institution to undergo a site review and provide additional reports in support of its application for permanent authorization.

(3) The Deputy Commissioner shall review the information submitted by the institution and any information obtained during the Department's site reviews, and other information obtained during the Department's review of the institution during its provisional period. The Deputy Commissioner shall consider whether the institution provided sufficient evidence that it met the requirements set forth in subdivision (b) of this section during its provisional authorization. The Deputy Commissioner shall make a recommendation to the Commissioner and Board of Regents to either grant the institution permanent authorization, extend its provisional authorization, or deny permanent authorization.

(4) At a regularly scheduled public meeting, the Board of Regents shall consider the findings and recommendations of the Deputy Commissioner and take one of the following actions:

(i) grant permanent authorization;

(ii) extend provisional authority for an additional period to be determined by the Board of Regents, for the purposes of additional review in consideration of permanent authorization;

(iii) deny permanent authorization and extend the provisional authorization period with limited authority for the purposes of teach-out and closure; or

(iv) deny permanent authorization and direct immediate closure.

(e) Fees. In addition to the fees set forth in section 3.23 of this Title, applicants who apply for provisional or permanent authority under this section, shall be subject to the following fees:

(1) Application for provisional authorization. A nonrefundable and nontransferable fee of $7,000 shall be submitted with an application for provisional authorization under this section, plus $2,500 for each additional degree program if more than one such program is requested. Failure to submit this fee with the application will constitute an incomplete application and submitted materials will not be reviewed.

(2) In-person capacity interview. A nonrefundable and nontransferable fee of $1,500 shall be submitted upon notice from the Department pursuant to subdivision (c)(1)(i) of this section that such an interview is needed. Failure to submit this fee within 90 days of the Department's notification will result in the application being closed without further action.

(3) Site-review. A nonrefundable and nontransferable fee of $5,000 shall be submitted upon notification from the Department that a site-review is needed pursuant to subdivisions (c)(2)(ii) or (d)(2) of this section. Failure to submit this fee within 90 days of the Department's notification will result in the application being closed without further action.

(4) Annual administrative fee. An institution granted provisional authorization shall be subject to an annual non-refundable fee of $5,000 commencing in the first annual period that the institution obtains provisional authorization, and for each annual period through the term of its provisional authorization. The fee for each annual period shall be due no later than 60 days prior to the start of each annual period for such institution, as determined by the Department.

(f) Provisions for highly qualified out-of-state institutions of higher education.

(1) For purposes of this subdivision, the term "highly qualified out-of-state institution" shall mean an independent, not-for-profit institution of higher education that:

(i) is authorized to offer degree programs in a United States state or territory other than New York State, for at least 25 years;

(ii) is currently certified to participate in Title IV aid programs, without provisional status or sanction, for the last 5 years; and

(iii) has been accredited for at least 10 years by an institutional accrediting agency recognized by the United States Department of Education, and no adverse actions have been taken during such time period.

(2) Where an institution authorized to offer degree programs in New York State pursuant to this section seeks to merge or consolidate with a highly qualified out-of-state institution, a written agreement and plan shall be entered into setting forth such intent and an application shall be submitted pursuant to Education Law § 223 or, if sole-membership with a highly qualified out-of-state institution is desired, an application pursuant to Education Law § 219 shall be made.

(3) The highly qualified out-of-state institution shall submit an application for a charter as an educational corporation in New York and for degree granting authority demonstrating that it meets the requirements for a provisional charter pursuant to Education Law § 217 and section 3.22 of this Part, or for an absolute charter pursuant to Education Law § 216 and section 3.21 of this Part. Provided, however, that the Board of Regents shall determine whether such institution receives a provisional or absolute charter. Where the Board of Regents approves such application:

(i) such institution and the resulting chartered corporation shall demonstrate that they meet all the requirements in this section to obtain authorization to offer degree programs in New York State provided, however, that:

(a) the Board of Regents shall determine whether such institution and the resulting chartered corporation would hold provisional authorization to offer degree programs pursuant to subdivision (c) of this section, or a permanent authorization to offer degree programs pursuant to subdivision (d) of this section; and

(b) such institution and resulting chartered corporation need not meet the requirement of paragraph (2) of subdivision (b) of this section; and

(ii) prior to recruiting or enrolling students in any curricula not currently registered to the institution already authorized to offer degree programs in New York State, the institution and the resulting chartered corporation shall apply for new program registration and a master plan amendment, if applicable.

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