Title 5 Post-Secondary Education
Chapter 100 Private Institutions of Higher Education
PART 5 EXEMPTION
UNDER THE POST-Secondary Educational
Institution Act
5.100.5.1 ISSUING
AGENCY:
New Mexico Higher Education Department.
[5.100.5.1 NMAC -
N, 12/26/2017]
5.100.5.2 SCOPE: Provisions of 5.100.5 NMAC apply to all
post-secondary institutions that meet the standards set by the department to
obtain exempt status from the post-secondary educational institution act within
the state of New Mexico.
[5.100.5.2 NMAC -
N, 12/26/2017]
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]
5.100.5.4 DURATION: Permanent.
[5.100.5.4 NMAC -
N, 12/26/2017]
5.100.5.5 EFFECTIVE
DATE:
December 26, 2017, unless a later date
is cited at the end of a section.
[5.100.5.5 NMAC -
N, 12/26/2017]
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]
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 to offer a formal educational curriculum within
New Mexico;
M. “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 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 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 criteria, as determined by the department, for registration or licensure
under the Post-Secondary Educational Institution Act. All degree-granting
institutions seeking state authorization shall be accredited or be seeking
appropriate external accreditation. State authorization 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]
5.100.5.9 PENALTY: A post-secondary
institution that does not have state authorization or has not been granted
express exemption by the department, and meets the definition of physical
presence in New Mexico, shall be notified by certified mail that it shall cease
immediately to operate until it obtains state authorization or exemption from
the department; the department shall initiate appropriate legal action if an
institution fails 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.
[5.100.5.9 NMAC -
N, 12/26/2017]
History of 5.100.5
NMAC - [RESERVED]