Hawaii does not appear to have a law for the approval/certification
of educational institutions in the state. Rather, its laws set
guidelines for the activities of institutions which are not
accredited by an organization approved by the U.S. Department of
Education. See SHEEO survey
The agency describes itself as using a "brick and mortar" presence
standard as of June 1, 2011. However using 3rd parties to conduct
school business may result in a "presence" requiring registration.
The agency has developed numerous "internal policies" which
determine how they interpret these provisions. It does not appear
that they have codified these rules. See
http://www.iowacollegeaid.gov/PostsecondaryRegistration/iowacodechapter261b.html#DistanceEducation
It appears their policy interprets; "maintains or conducts one...
course of instruction," in addition to "presence." Note also that
all institutions must provide assurance of financial responsibility
pursuant to Iowa Code Section 714.18
An institution, to be regulated by the statute must have a physical
presence. However, they must also, "operate" in order to trigger
the approval requirement. According to the agency, the standard
utilized for whether an agency is "operating" is similar to the
legal concept of "long-arm jurisdiction." As such, the analysis is
one of degree and cumulative effect. While some activities in
themselves would not amount to a licensing requirement if coupled
with others, licensing may be required.
In the SHEEO compendium response, the agency states that the
standard is met where; "Any face to face, including physical
instruction or experiences that result in contact with others and
awarding of credit (internships, student teaching, clinicals)" see
SHEEO survey response
The agency has provided the following description of physical
presence; "Physical presence means an owned, leased, rented or
provided facility, within Maine, where education and/or training is
provided to students for a fee. Physical presence also includes
periodic visits to Maine-based students by the school’s
faculty/representatives and/or the activity of Maine residents who
have been hired to serve as solicitors or agents on behalf of the
school." See SHEEO survey response
No statute or regulations were found which clarify when an out of
state institution has "conduct(ed) within the commonwealth any
courses." An investigation of the agency's statements contained
within the SHEEO survey response reveals that the agency utilizes
an amorphous multi-factored test. See SHEEO survey response.
Michigan's approval/licensure laws are tied to the incorporation of
private educational entities in the state, and authorizations to
transact business as a foreign corporation. While the applicable
statutes are complex, and apply differently to different types of
institutions, generally, the agency describes itself as utilizing a
"brick and mortar" type analysis.
The statute governing licensure of non-degree granting institutions
states that they do not need to be licensed where there is no
physical presence "as determined by the office"; No regulation
defines what the agency considers to be a physical presence, nor
was any articulation found.
Agency's guidance as to what constitutes being "otherwise located"
in Mississippi consists of the following; "1. The institution
maintains a telephone number with a Mississippi area code; 2. The
institution maintains a postal address (either physical or PO Box)
with a Mississippi zip code; 3. The institution maintains an
Internet URL that originates in Mississippi or utilizes an ISP that
is based in Mississippi; 4. The institution advertises that a
future institution will be domiciled, incorporated, or otherwise
located in the State." This list is not exclusive and the agency
may consider other activities a "trigger." See SHEEO survey &
http://www.mississippi.edu/mcca/downloads/federal-online-ed-requirements.pdf
It appears that the laws involving the regulation and approval of
post-secondary education Institutions (e.g. MSA Title 20 Chapter
30) were repealed in 1997. What remains is a very brief statute
administered by the Board of regents. The other applicable law is
administered by the Secretary of State who may require licensing as
a foreign entity.
Seek Clarification from the agency. It appears that the agency is
interpreting "operate," however, no definition of operate was found
outside of the statements provided in the SHEEO survey. "PPCS
requires authorization if any part of an online program is offered
in the state – that constitutes physical presence for us. Example:
internship, clinical, etc... Physical presence means that the
student is actively participating in a brick and mortar structure
owned by an institution (not home at the computer) to do part of
the program" The agency seems to be articulating a face-to-face
instruction standard, and a physical property standard, however,
some of the responses seem contradictory. For instance, seminars
are purportedly ok if "not more than 16 hours in length." This
suggests there is some formally articulated policy exists which has
not been found.
There is possibly a large exemption; The statutes state that the
agency licenses "post secondary institutions." The definition of
post-secondary institutions seems to exclude any college "licensed
as a postsecondary educational institution in this state by a
federal or another state agency;" See NV. ST 394.099 However
soliciting agent, and advertising restrictions may still apply.
Several laws applying to different types of entities are
administered by this agency. "Registration" is a concept distinct
from "licensure."Recruiting activities trigger a "registration"
requirement. The "presence standard" provided by the agency in the
SHEEO survey response was not expressly linked to any statutory
requirement. It is as follows; "“Presence” in the state is defined
as offering courses, programs or degrees on site or from a
geographical site in New Mexico or maintaining an administrative,
corporate or other address in the state."
The agency has made the following statement about its physical
presence requirement in the SHEEO survey response; “Physical
presence is identified as any training location, office or
recruiting space, corporate location, and/or server.” See SHEEO
survey response and also
http://www.acces.nysed.gov/bpss/schools/PG260603_10_01_07.htm for
more comprehensive statements
“The Office of Higher Education considers an institution to have a
physical presence in New York State if it does one or more of the
following things: 1. Operates an instructional site (a physical
site at which instruction is given by a faculty member to a group
of students) in New York State. The fact that the instruction at
that site is given through an electronic medium (e.g., satellite
delivery, videotape) rather than through an instructor physically
present in the room, does not change the fact that it is an
instructional site. 2. Sponsors organized activities within the
State that are related to the academic program (e.g., advising,
mentoring, study groups, examination administration). 3. Has a
representative, whether paid or not, acting on its behalf within
the state to arrange or conduct instructional or academic support
activities. This would include a commercial vendor acting on behalf
of the institution, or a New York higher education institution
providing services to students of the out-of-state-institution.
Activities that are NOT considered to establish physical presence
in the State are: 1. Communicating electronically with students in
New York State (e.g., by computer or broadcast) in ways that do NOT
involve an instructional site or an organized group activity. 2.
Advertising in New York State media. 3. Recruitment of students,
e.g., at college fairs, job fairs, or trade shows.” See
http://www.highered.nysed.gov/ocue/ded/policies.html
No information was found which clarified the meaning of "any
physical presence." A new definition may be forthcoming as the
agency's response to the SHEEO survey said that new regulations
should come out in 2012.
Prohibitions 1,2,3 &4 seem to combine to prohibit almost all
activities absent compliance and/or authorization. However, those
institutions which "do not operate" are exempt. It thus appears
that the definition of "Operate" determines whether or not an
institution is regulated by the agency.
The agency interprets 3332.06 to trigger approval requirements upon
certain solicitation activities, and upon physical presence type
factors. See
http://scr.ohio.gov/LinkClick.aspx?fileticket=dFQvdr-IzIM%3D&tabid=38&mid=484
No further clarification of physical presence was found. See SHEEO
compendium for the agency's description of its physical presence
policy; "To determine the extent of an institution’s physical
presence for courses and/ or programs delivered exclusively online,
the institution will describe any physical presence of its
operations (i.e. internships, externships, clinicals, practica,
etc.), administrators, students, or faculty. This includes leasing
space for instruction or administrative purposes, hiring faculty
that convenes students in Oklahoma, a telephone number, a post
office box, servers, i.e., any action that constitutes a physical
presence in the state." Note also that the policy is currently
under review.
The Agency did not respond to the SHEEO survey. However, the
information provided in the SHEEO survey states that the agency
"regulates only the state technology centers"
The agency regulations, website, and SHEEO survey response provide
no guidance as to what "operate" means, or when one "grant(s)
degrees in this commonwealth.": Agency statements seem to dance
around the topic. For example "Regulations in Pennsylvania
currently do not allow institutions operating solely by distance
education or telecommunications instruction to operate in this
commonwealth. Title 22 Pa. Code § 31.1(e) states: "Only a
postsecondary degree-granting institution having more than 50% of
its degree programs consisting of resident-based instruction may be
established or operate in this Commonwealth." Thus, no institution
that offers education solely on a non-resident basis or by
telecommunications instruction alone may operate in Pennsylvania."
see
http://www.education.state.pa.us/portal/server.pt/community/higher_education/8711/institutional_approval_information/522454
This still begs the question whether one can provide education via
100% technology while not "operating."
Two levels of physical presence seem to apply; The agency "Policy
on Distance Learning" is a first level analysis. Agency policy
states that no regulations will apply to agencies which don't have
a physical presence within the meaning of the Policy. If there is a
physical presence, then an "operate" standard from the applicable
regulation may apply. The standard is similar but different. It's
not clear whether the selections in the adjacent cell are geared
toward the "Policy on Distance Learning" or the statutory
definition of "operate." The law in the adjacent cell is geared
toward institutions which provide degrees, and certificates at the
"post-associate" level, and is based upon the "Regulations
Governing Institutions of Higher Education Operating in Rhode
Island. This section illustrates the "second level" of physical
presence. For "Proprietary Schools", which are defined as schools
which award certificates at the pre-associate level see
"Regulations Governing Proprietary Schools in Rhode Island." at
http://www.ribghe.org/propreg.htm It appears that both proprietary
schools and schools which provide certificates at the post
associate degree level (but not degrees) have additional exemptions
not enjoyed by degree granting institutions. Namely exemptions for
instructors providing education solely by distance education while
within the borders of the states, and testing centers.
Agency statements provide caveats which illustrates the agency's
interpretation of the "operate or solicit" standard. They are as
follows; "2 [The Commission does not require licensing of
institutions where the sole activity is a practicum or clinical
experience in South Carolina.] 3 [The Commission does not require
licensing of institutions that offer programs online or at a
distance where the sole activity is employment of faculty members
who are residents of South Carolina.] 4 [The Commission does not
require licensing of institutions where an in-state proctor
administers exams for courses delivered by distance learning.] 5
[The Commission does not require licensing of institutions that use
search engine marketing (Yahoo, Bing, Google) or web site
advertisements that originate outside the borders of South
Carolina.]" See
http://www.che.sc.gov/AcademicAffairs/License/Licensing_Statute.pdf
at 59-58-20
The Board of Regents has no approval/licensure authority and it
appears that other relevant licensure laws have been repealed.
Unless accredited, an institution may not "offer postsecondary
education credit or degree in South Dakota." No definition of
"offer" is provided, However, accredited institutions may
automatically comply with this law. Enforcement handled by the
attorney general's office.
"The agency has made the following statements about its
interpretation of ""physical presence""; ""THEC interprets the
definition of physical presence to: include having an instructor
lead a distance education course from within the state; include
advertisements that appear on the webpage of a local newspaper;
include facilitating and/or entering into an arrangement with any
business, organization, or similar entity located in Tennessee for
the purpose of providing an internship, externship, practicum,
clinical, student teaching, or similar opportunity; and not include
enrolling a Tennessee student if the recruitment of the student did
not involve any of the prohibited activities."" See;
http://www.tennessee.gov/thec/Divisions/LRA/PostsecondaryAuth/pdf/Distance%20Education%20Authorization%20Requirements%20-%20Final.PDF
Also the agency has made the following statements about
solicitation at college fairs. “An institution may participate in
multi-institutional college fairs or other assemblies of
institutions in Tennessee without establishing a physical presence
as long as: the institution does not enroll an individual, allow an
individual to sign any agreement obligating the person to the
institution in any way, or accept any monies from the individual,
including an application fee; and the institution does not
follow-up with any interested student by means of an in-person
meeting with an agent in Tennessee” See SHEEO Survey
The agency seems to interpret the foregoing "solicit" language to
trigger the need for approval whenever an institution enrolls or
solicits students. The SHEEO survey response seems to indicate that
there is a recent legislative change that exempts certain
institutions from being forced to seek approval where the only
action on part of the institution is enrollment/solicitation.
"There is one recent exception as of Sept. 1, 2011: out of state,
degree granting institutions that are authorized in their state to
offer postsecondary education and to award degrees and that are
accredited by a U.S. Dept. of Ed.-recognized accrediting agency,
and offer only postsecondary distance education in Texas." This is
not yet reflected in the code that was available online . See SHEEO
Survey response. The agency also seems to interpret "maintains a
place of business within this state" to incorporate other physical
presence type activities besides solicitation. Note that schools
without physical presence must post a "conspicuous notice" on their
website. See SHEEO survey response.
Accredited schools may be exempt. See list of exemptions at U.C.A.
13-34-105. Schools believed to be exempt must obtain certificate of
exemption. The agency did not provide a response to the "physical
presence" portion of the SHEEO survey.
No definition of physical presence is found within the applicable
code. However, the agency has made the following statements about
its interpretation of physical presence: "If an out-of-state
institution does not plan to operate a facility in Virginia and/or
the mechanism by which instruction is initiated (server) is not
located within Virginia, the school does not meet Virginia’s
criterion of physical presence. Any school not meeting this
criterion is ineligible for certification to operate in Virginia."
See SHEEO Survey Response.
The agency indicated in question 2 of the SHEEO that it regulates
public institutions. It is not clear whether it construes WY. St.
21-2-401(a) or (b) to apply to public institutions. Neither the
statutes, nor agency regulations define "operate" or "doing
business."; Degree granting schools are regulated by Chapter 30 of
the Wyoming Department of Education Rules and Regulations.
Non-Degree granting schools are regulated by Chapter 1 of the
Wyoming Department of Education Rules and Regulations. See
http://edu.wyoming.gov/Programs/schools/private_school_licensing.aspx
