The New York Board of Regents, through the State Education Department’s Office of Adult Education & Workforce Development, is responsible for regulating and assuring the quality of proprietary trade and business postsecondary education offered within its borders. This includes schools located in New York State which offer instruction, in part or entirely, through distance education methods, such as correspondence, home study, electronic delivery, or any other distance education method that may arise in the future.
Section 5001(1) of Education Law states, in part, that "No private school which charges tuition or fees related to instruction and which is not exempted hereunder shall be operated by any person or persons, firm, corporation, or private organization for the purpose of teaching or giving instruction in any subject or subjects, unless it is licensed by the department."
Section 5004(2) of Education Law, and Part 126.1(i) of the Commissioner's Regulations, states that "Instruction...shall be any plan or method for teaching any subject or subjects in any form or manner, including correspondence or home study", and Instruction means any method or procedure used by the school faculty to impart knowledge or develop skills."
When such distance higher education offerings originate outside of New York State, the question arises as to whether that education is subject to state regulation. New York uses the concept of “physical presence” to determine whether it has the right and the responsibility to exercise its regulatory quality assurance authority over education delivered through distance education methods and originating from out of state.
If any out-of-state school has a physical presence in New York State, that school must be appropriately licensed/registered and abide by all of the provisions set forth in Sections 5001 through 5010 of Education Law and Part 126 of the Regulations of Commissioner of Education.
The Bureau of Proprietary School Supervision considers an institution to have a physical presence in New York State if it does one or more of the following things:
- 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.
- Sponsors organized activities within the State that are related to the program of study (e.g., advising, mentoring, study groups, examination administration).
- Has a representative, whether paid or not, acting on its behalf within the state to conduct instructional or academic support activities. This would include a commercial vendor acting on behalf of the out-of-state-institution providing services to students of that institution.
Activities that are NOT considered to establish physical presence in the State are:
- 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.
- Advertising in New York State media.