New Mexico Register / Volume XXXIV, Issue 20 / October 24,
2023
This is an amendment to 5.100.5 NMAC Section
6 effective 10/24/2023.
5.100.5.6 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.
(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.
[5.100.5.6 NMAC -
N, 12/26/2017; A, 12/11/2018; A, 8/10/2021; A, 10/24/2023]